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Brooklyn Law Review

Abstract

Frequently, corporations require consumers to agree to litigate disputes in locales favorable to their corporate interests. In the Supreme Court’s 2023 decision Mallory v. Norfolk Southern, it was a corporation that found itself subject to suit in an unwanted jurisdiction. This corporation—Norfolk Southern Railway—was required to answer a suit in Pennsylvania solely because of its consent to do business there under Pennsylvania’s “jurisdiction-via-registration” clause for foreign businesses. In that case, Justice Samuel Alito raised the possibility of injecting a separate doctrine of constitutional analysis—the dormant Commerce Clause—into personal jurisdiction analysis. To Justice Alito, such “jurisdiction-via-registration” statutes may be unconstitutional when viewed under the dormant Commerce Clause. This Note argues that marrying the dormant Commerce Clause with personal jurisdiction analysis is likely to result in chaos. Not only is the Court’s dormant Commerce Clause analysis confusing and fractured, it will do little to advance the core constitutional concerns of personal jurisdiction analysis under the Due Process Clause. The Court’s use of the Pike balancing test demonstrates that the Court cannot speak with a single voice on dormant Commerce Clause issues, sowing disarray in this area of law. Because personal jurisdiction analysis aims at providing clarity and predictability to parties, adding in dormant Commerce Clause analysis, which is often unclear and subject to judicial idiosyncrasies, will only serve to hinder these goals. Separately, the Court’s historical use of “fairness factors” in personal jurisdiction matters fulfills many of the same federalism goals that the dormant Commerce Clause purports to cover. Thus, courts should reject Justice Alito’s call to begin considering the dormant Commerce Clause when analyzing state exercises of personal jurisdiction.

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