Rethinking Jurisdictional Maximalism in the Wake of Mallory

May 1, 2024

Jurisdiction-by-registration is the idea that by virtue of registering to do business in a state, corporations prospectively consent to jurisdiction on claims made against them in that state.  For decades, this concept has stagnated behind the minimum contacts analysis developed by International Shoe Co. v. Washington and its progeny.  Among other reasons, plaintiffs and states were not sure whether jurisdiction-by-registration withstood the Due Process Clause.  But as the U.S. Supreme Court continued to narrow the limits of contacts-based jurisdiction, plaintiffs returned to registration‑based jurisdiction to recapture corporate defendants.  Courts largely rejected these assertions.  Then, in Mallory v. Norfolk Southern Railway Co., the Supreme Court reversed course, holding that jurisdiction-by-registration, specifically general jurisdiction-by-registration, still passes due process muster.

This Note focuses on the curious trend that Mallory raises:  although states have increasingly extended their apparent contacts-based jurisdiction to the constitutional limit, they have also rejected registration-based general jurisdiction.  Now that Mallory is on the table, however, two paths appear viable:  maximalist states will either (1) continue to discard jurisdiction-by‑registration or (2) assume at least some version of jurisdiction-by-registration to reassert jurisdictional control.  This Note argues that whether a state falls into the first or second category depends on the state’s corporate incentives.  It further argues that states should refine their registration statutes to clarify their jurisdictional impact, if any.  Finally, this Note provides an overview of states’ current jurisdiction-by-registration statuses.

May 2024

No. 6