The Volokh Conspiracy

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Mallory v. Norfolk Southern Just Got A Lot More Real

If the Supreme Court upholds Pennsylvania's personal jurisdiction statute, residents of East Palestine, Ohio can sue the railroad in Philadelphia.


As a practical matter, what is the most consequential Supreme Court case this term? No, it is not Students for Fair Admission or Moore v. Harper. These constitutional law decisions will affect things that law professors care about, but most people will barely even notice. I've long thought the most consequential decision is also a sleeper case: Mallory v. Norfolk Southern. This case concerns personal jurisdiction. To grossly summarize, the question presented is whether Pennsylvania can require businesses to consent to personal jurisdiction in order to do business in the Commonwealth. In this case, a Virginia resident sued a Virginia corporation for injuries that arose in Virginia and Ohio. And the plaintiff filed suit in Philadelphia. The tort had no "minimum contacts" with Pennsylvania. Personal jurisdiction could only be premised on the registration statute.

I covered this case in my Supreme Court seminar, and we were fortunate to have counsel for petitioner (Ashley Keller) and respondent (Carter Phillips), as well as amicus (Steve Sachs) speak to our students over Zoom. Based on my gross read of the transcript, I think there are four votes for the plaintiff here, but I'm not sure there are five. And the votes here will not line up along ideological lines.

In light of recent events, this case has became even more important. In early February, Norfolk Southern Railway had a horrific derailment in East Palestine, Ohio. The incident leaked millions of pounds of toxic chemicals into the environment. Thousands of people have had to evacuate. The impact of this derailment is difficult to quantify.

As could be expected, trial lawyers are lining up across the region to represent affected people. Of course, the issue will arise about the ideal forum. And trial lawyers, like state attorneys general, will forum shop. If the Supreme Court blesses Pennsylvania's registration regime, perhaps some of the plaintiffs will choose to file suit against Norfolk Southern in a Philadelphia trial court. Or Illinois may choose to enact a similar regime, Welcome to Cook County, Norfolk Southern! It does not seem the company has any tracks in California, but I'm sure they can find a hook.

Mallory just got a lot more real.