Source Collect: The Complexities of Consent to Personal Jurisdiction
This podcast episode accompanies the article from Professor Dodson: The Complexities of Consent to Personal Jurisdiction.
Transcript
SPEAKERS
Host: Juliette Draper
Guest/Author: Professor Scott Dodson
Judge Thelton E. Henderson 00:04
And that's what sustains our system, is that having one's day in court, feeling you were heard, and even though you don't agree with the ruling, you feel you've been through a fair process.
Juliette Draper 00:14
This is Source Collect, the podcast of the California Law Review. Here at CLR, we strive to collect sources that underscore how law shapes society and how society shapes the law. The goal of our podcast is to provide an accessible and thought-provoking overview of the scholarship we publish. Today, we will be discussing personal jurisdiction, a concept from the foundational, doctrinal class civil procedure. Each year, personal jurisdiction—which is a court's power to exercise authority over a party—confounds first year law students as they navigate the twist and turns in the Supreme Court's personal jurisdiction jurisprudence.
In 2023, the Supreme Court decided Mallory v. Norfolk, Southern Railway Company, which held that consent remains a method of establishing personal jurisdiction independent of the minimum contacts test, first introduced by International Shoe Company v. Washington. On the surface, this decision resolved ambiguities in personal jurisdiction doctrine. But, to explain to us how Mallory failed to consider the many complexities underlying consent to personal jurisdiction, Scott Dodson, a Distinguished Professor of Law at UC San Francisco, joins us to discuss his article, The Complexities of Consent to Personal Jurisdiction.
Professor Dodson, thank you so much for taking the time to talk with me today about your article.
Scott Dodson 01:46
It's a pleasure to be here, Juliette.
Scott Dodson 01:48
Moving on to your paper, The Complexities of Consent to Personal Jurisdiction, what motivated you to write this article?
Scott Dodson 01:54
Yeah, I've written a lot about jurisdiction, which is often thought of as the power of a court, but which I like to think of as a set of rules for allocating cases among the various courts that we have. And earlier in my career, I wrote quite a bit about subject matter jurisdiction, which conventionally can't be waived or consented to by the parties. But recently, I focused on personal jurisdiction, which is the power of the court over a particular party. And, personal jurisdiction is framed as both a geographic, allocative principle: in which state should the case be heard; and, as an individual right not to be subject to the power of a court that doesn't otherwise have it. So, it has this fascinating—and somewhat tumultuous—dualism to it. And I've written a series of papers on personal jurisdiction from different angles, but when the Supreme Court decided the case of Mallory in 2023 I knew that I had to write a personal jurisdiction paper on consent, and that's why I wrote this.
Juliette Draper 03:03
Wow. Okay, that's great. Let's get to talking about Mallory then. So, the article begins by discussing the Mallory decision and its implications for consent-based personal jurisdiction. Can you summarize the key holdings of Mallory for our audience and explain why it's considered a significant development in personal jurisdiction doctrine?
Scott Dodson 03:21
Mallory—Robert Mallory was an employee of the Norfolk Southern Railroad. He lived in Virginia and worked for the railroad in Virginia and Ohio for several decades. Along the way, he developed cancer, and he attributed his illness to exposure to toxins while he had been working on the job. So, he sued the railroad, which was his right to do. But, he sued the railroad in Pennsylvania. Now, the railroad did lots of business in Pennsylvania, but it was incorporated—and it had its main operations—elsewhere. So, neither the injurious conduct, nor the railroad had a strong connection to Pennsylvania. That then raised the question of whether a Pennsylvania state court could exercise personal jurisdiction over the railroad in Mallory's case. And indeed, the railroad moved to dismiss the case right away based on lack of personal jurisdiction. The Pennsylvania Supreme Court agreed with the railroad, but Mallory sought review in the US Supreme Court. And, Mallory argued that the railroad had consented to personal jurisdiction in Pennsylvania by registering to do business there. Mallory was kind of right about that. Pennsylvania has a set of statutes that allows out-of-state businesses to do business in the state—only if they comply with certain requirements. And one requirement is to file registration papers, which when the business does that, the state deems the business to be like a Pennsylvania business, subject to Pennsylvania court jurisdiction. The railroad argued that it didn't really consent to personal jurisdiction. That was just what Pennsylvania law stated. But the railroad also argued that even with consent, Pennsylvania still could not exercise personal jurisdiction consistent with the 14th Amendment's Due Process Clause. At least not if the claim didn't arise in Pennsylvania, or if the railroad didn't actually make Pennsylvania's home. Those two ways of establishing personal jurisdiction, by the way, had long been recognized under the Supreme Court case International Shoe and its progeny. But the Supreme Court, when it heard the case in Mallory, it rejected the railroads argument. It held that consent is a basis for personal jurisdiction without needing to satisfy International Shoe. And ,it held that business registration statutes like Pennsylvania's don't violate the 14th Amendment's Due Process Clause. Those are really big holdings, because they open up a whole new way to establish personal jurisdiction outside of International Shoe, which has dominated the doctrine of personal jurisdiction since 1945
Juliette Draper 06:23
Wow. Were you surprised by the court's holding in Mallory?
Scott Dodson 06:27
Well, I was surprised at the way that Mallory was written. And I thought that the majority opinion and the dissent really didn't give clear guidance or have a very firm understanding of the nuance of consent. But what I was most surprised about was that there were four justices in dissent that would have held that there was no independent basis for personal jurisdiction based on consent, and that instead, everything fell under International Shoe. I thought that consent had always been an independent basis. So, in that respect, I thought the Supreme Court majority got it right.
Juliette Draper 07:13
Wow. Okay, so you do argue that Mallory oversimplifies the concept of consent, like you were saying. So, what are the main complexities of consent that the article identifies, and why are they important for understanding personal jurisdiction?
Scott Dodson 07:26
The court in Mallory made it seem like its holding was a straightforward application of prior consent precedent, but I really think the court grossly oversimplifies that. First, the history isn't so clear. Second, the consent doctrine is a slippery concept, and I think the justices really failed to acknowledge that. And third, personal jurisdiction operates in a system of both state law and federal law—and of both state courts and federal courts. Yet, the Supreme Court in Mallory failed to grapple with how consent might play out in a dual-law, dual-court system. And, these are all complexities that I think need to be acknowledged.
Juliette Draper 08:13
Okay, that's very interesting. So, in the article, you cite to Justice Jackson's line of questioning as at least one example of the Justices’ awareness of the complexities of consent. And, Justice Jackson—I believe in that questioning—wondered if consent is really like a kind of waiver. So, if the justices seem to be aware of consents complexities to an extent, why do you think the opinions in Mallory almost avoided discussing it entirely?
Scott Dodson 08:43
I confess I've about given up trying to read the tea leaves and find behind-the-scenes reasons for what the court writes. You're right that her opinion does say that, and indeed, the oral argument involves some questions—some fairly intelligent questions from the justices about some of the complexities of consent_—ut the opinion just really doesn't deal with them. I guess I'll only say that perhaps the court thought it must be important to resolve the big issue of whether consent was independent of International Shoe. And maybe it will revisit some of the questions it left open in future cases.
Juliette Draper 09:22
That makes a lot of sense. I applaud you for not trying to read the tea leaves, but great! Okay, so I love how your article starts by tracing the history of personal jurisdiction back to English common law. So how did the traditional methods of establishing jurisdiction, such as voluntary appearance and in-state service, work, and why were they not originally framed as consent?
Scott Dodson 09:44
Historically, personal jurisdiction could be based on those two methods: voluntary appearance and in-state service. Voluntary appearance was the defendant actually showing up in court to defend the lawsuit. It sounds like consent—and most jurists today probably think of it as consent—but that conception is a relatively recent vintage. In England, before the founding of the United States, voluntary appearance wasn't about jurisdiction, but it was about legitimacy. Basically, the voluntary appearance of the defendant was essential to the legitimacy of the judgment—in contrast to a judgment against the defendant in absentia. Few people really like being defendants, though, so you can imagine that many defendants refused to appear and defend. So the common law developed various means of coercion, including attachment, civil arrest and even outlawry. Those methods became to be seen as unduly harsh and were largely replaced in the 1700s by service of a summons on the defendant, which effectively brought the defendant under the power of the court. Now, for English courts, service could be made anywhere. But the colonies, and then later the states had their own borders and their own separate court systems. So, the rule of service that developed in America developed with a limit: Service had to be in the state where the court was located, and that was to avoid stepping on the toes of other states. Now, those state borders turned out to be pretty limiting, especially as interstate mobility and interstate commerce increased and as corporations began to dominate business affairs. So, a railroad, for example, might harm people in all kinds of states, but if it didn't have a person in those states authorized to accept service, it couldn't be sued there. It couldn't be hailed into court there, absent a voluntary appearance. So, the state started conditioning the right to do business in their states on the assent to the appointment of an in-state agent for purposes of service process. That practice was settled by the time of Pennoyer v. Neff, which is a very famous personal jurisdiction case that still strikes fear into the hearts of 1Ls all across the nation. Now, most of the states were—had statutes that were designed to get personal jurisdiction over an out-of-state corporation that caused harm in that state. But, an early 1900s case called Pennsylvania Fire upheld an agent appointment statute as constitutional, even when the business caused harm in a different state. The important part of these agent appointment statutes, though, was that they weren't consent to personal jurisdiction directly. Rather, they purported to extract the corporation's consent to the appointment of an in-state agent for purposes of service of process. It was the resulting service on that agent that then actually led to personal jurisdiction over the corporation.
Juliette Draper 13:14
Thank you for walking us through that explanation so clearly. It really made a big difference from my confusion as a 1L, like you were saying. So, the article, yes, explains how assent to appoint an in-state agent for service of process evolved into consent to suit, nonetheless. So, how did the shift occur, and why is it significant for understanding modern personal jurisdiction doctrine?
Scott Dodson 13:34
In the early 1900s, the court began describing consent to appointment of an agent for purposes of service as consent to suit. I'm not sure why exactly. Perhaps the phrase was used as sort of a convenient shorthand to reference the true purpose of those statutes. It was certainly influenced by the federal venue cases, which did use the phrase consent to suit as well. But, one of the key points that I make in the article is that the phrase consent to suit conflates two separate steps into one. Those agent appointment statutes didn't extract consent to suit directly. They extracted consent to the appointment of an in-state agent. The resulting in-state service on that agent then subjected this defendant to suit. And that's a critical distinction, because in Mallory, the railroad was never served in Pennsylvania. The court construed the railroad's decision to register to do business in Pennsylvania to be consent to personal jurisdiction regardless of service. And that's a new factual scenario that was not represented in the past precedent. But I think that the Supreme Court made the leap from that past precedent to Mallory = by using the gradual incorporation of the phrase consent to suit.
Juliette Draper 15:07
Okay, interesting. So, thinking about consent to suit and then thinking about other ways that personal jurisdiction has been phrased, how did the court expand the concept of voluntary appearance into notions of waiver by stipulation and constructive consent.
Scott Dodson 15:27
In the 1900s the court began using notions of consent to expand the idea of voluntary appearance. So, in a case called Adam v. Sanger, the Court held that a plaintiff—by filing the lawsuit and then invoking the personal jurisdiction with the court—had made a voluntary appearance for purposes of any counterclaim that the defendant asserted against him. A very different situation. And, in Petrowski v. Hawkeye-Security, the Court held that a defendant who initially properly objected to personal jurisdiction could stipulate afterwards to the personal jurisdiction of the court. And then finally, in Insurance Corporation, the Court held that a court could use procedural rules to deem the facts to establish personal jurisdiction as a sanction for the defendant's failure to comply with jurisdictional discovery. Each of these cases expanded the idea of voluntary appearance using language of stipulation or consent to personal jurisdiction, and none of them involved in-state service. So this, in this era, the court was using different terminology, like consent waiver, constructive consent, constructive waiver estoppel. But in each case, it was using them under the umbrella of consent to personal jurisdiction in the context of a voluntary appearance.
Juliette Draper 17:04
Thank you for walking us through how those different terms fit under the umbrella of consent jurisdiction. In another part of your paper, you defined very clearly for us the distinction between consent, waiver and forfeiture. And as you quoted, Justice Frankfurter described conceiving a surrender of a personal immunity “negatively as a waiver or positively as a consent to be sued, is merely an expression of literary preference.” So first, can you explain why you may disagree with Justice Frankfurter's take? And second, can you distinguish, for our listeners between consent, waiver, and forfeiture?
Scott Dodson 17:43
Sure, Frankfurter might be right that there's little distinction between consent and waiver and even forfeiture in some contexts, but I do think he's wrong in the personal jurisdiction context. Let me, let me give you some examples that I think might help explain. So, even non-lawyers can intuit that if I assault someone, I can be sued. In lawyer speak, an assault is an unwanted or offensive touching. It's actually called a battery under tort law. But I think that that kind of intuitive circumstance can help illustrate the different species of consent. So, Juliette, let's say you and I are talking in the Berkeley Law halls, and I say something very rude to you. I immediately regret it, and I tell you, Juliette, please slap me. I deserve to be slapped for what I said, and I want you to do it. Ordinarily, slapping someone is a battery because it's an unwanted touching, but because I've consented to it—indeed, I want to be slapped—it's no longer a battery. The same is true for personal jurisdiction. If I truly consent to a court's power over me, then that consent has changed the facts. It actually establishes personal jurisdiction where personal jurisdiction didn't exist before. Now let's change things up. Say that I don't regret saying something rude to you. You're super angry, and you tell me to meet you behind the playground at noon to duke it out. Now, I don't want to be hit by you. I'm fact, I'm trying to avoid being hit, but I understand that being hit is a likely result of being in a brawl, so we agree, in advance, to waive our rights to sue each other for battery, and in the fight, you clearly win. You knock me out, and I have a claim for battery against you, because being hit was still unwanted, but I've waived my right to sue you for it. That's different from consent and, by analogy, I can waive my right to challenge personal jurisdiction by relinquishing the defense of lack of personal jurisdiction. I haven't consented to personal jurisdiction. In fact, I really haven't consented. I don't want to be subject to the power of the court. And, so the court doesn't actually have personal jurisdiction over me, but I've waived my right to challenge the court's personal jurisdiction—so that's waiver. All right, let me change it up once more. Say, I say something rude. I don't regret it, and instead of agreeing to duke it out, you immediately slug me and you knock me out, obviously. So, I have a claim for battery, and I haven't waived that claim so I could sue you, but instead, I sue you for something else, maybe for slander, because you later told the faculty a bunch of false things about me. And just before trial on my slander claim, I decide that I want to add my claim for battery. But now it's too late in the litigation. I have procedurally forfeited my claim for battery. The claim still exists and I haven't waived it. I'm just disabled from asserting it in this lawsuit for procedural reasons. That's forfeiture, and the same can apply to personal jurisdiction. Say I don't consent to personal jurisdiction and I don't waive the defense. In fact, I properly move to dismiss for lack of personal jurisdiction. But let's say the motion is denied and I continue to litigate. And then I lose and I appeal, but I don't appeal on grounds of lack of personal jurisdiction. I've now forfeited my ability to raise the defense of lack of personal jurisdiction on remand. These distinctions between consent and waiver and forfeiture, they matter because they dictate different procedural results. So a motion to dismiss for lack of personal jurisdiction should be denied if I've consented because the court actually has personal jurisdiction over me. But the motion should be stricken if I've waived the defense, because the defense is not available to be asserted by a motion. And it also should be stricken if I've forfeited the right to move to dismiss. But, the court potentially could dismiss for lack of personal jurisdiction on its own over my forfeiture.
Juliette Draper 22:26
Okay, that's super interesting. Thank you for those colorful hypotheticals, but let's keep going down the consent path, because I loved that part of the hypothetical. So, what is true, like ex-ante consent, and how does that differ from a promise to consent? And why is that distinction important in cases like Mallory?
Scott Dodson 22:45
These questions reflect questions of temporality. So, in Mallory, the railroad's conduct, which was registration, was well before the lawsuit, and the court deemed that conduct to be immediate consent to personal jurisdiction. If that's the case, then the consent is ex-ante, well before the lawsuit ever was filed, and quite unlike the voluntary appearance cases in which the conduct of showing up and establishing personal jurisdiction by voluntary appearance is during the lawsuit itself. But if consent is ex-ante, then it's no different from a unilateral statement of consent, even without business registration. So, the railroads consent by registration Mallory should be valid consent, even if say the statute is later declared invalid or unconstitutional. If I sign over title to my car in exchange for money and you refuse to pay, I've still signed over the car. So, if the railroad consented, then that's the end of the matter. I admit that there is a Supreme Court case to the contrary. It's called Southern Pacific, and in that case, the Court held that the invalidity of a business registration statute negated a corporation's consent by registration. But to me, that makes no sense. A corporation's consent is effective to establish personal jurisdiction, whether it is in exchange for something or whether it's unilateral. Another lingering question for ex-ante consent is how to retract that consent? If the railroad in Mallory was deemed to consent at the time of business registration, how could the railroad later withdraw that consent? Is it by withdrawing its registration, or perhaps by unilateral declaration or by the passage of some reasonable period of time without doing business in the state, those questions of retraction are all important but unanswered. Now, a different way to think of bargained consent is not as immediate ex-ante consent, but instead as a promise to consent in a future lawsuit. Having to make good on that promise then can be conditioned on the validity of the bargain. So, if I merely promise to sign over title to my car in exchange for money, and you refuse to pay, then I don't have to sign over title to my car. But a promise to consent raises new questions. For example, if you do pay, who can force me to sign over title to my car? Only you? Or can other parties? In Mallory, the railroad registered to do business on the understanding that it was consenting to personal jurisdiction, but if it was just promising to consent to personal jurisdiction, yet it still reaped the benefits of doing business, then who gets to enforce the railroad's promise in a future lawsuit? Is it the state, or is it the plaintiff? And should normal contract law apply to the variety of ways that contract promises can be avoided? These kinds of questions all arise from the timing implications of whether the consent is immediate and ex-ante, or whether the defense has merely promised to consent.
Juliette Draper 26:16
That's fascinating. I love the framing of thinking it as like normal contract law and whether that should apply. Contract law and Civ Pro, we can have a joint class, maybe, where we discuss these questions. So amazing. So, transitioning from talking more about terminology to talking about the different types of jurisdiction, one could say. You discuss how personal jurisdiction is governed by both constitutional and statutory law, there's like a dual-level jurisdiction. So how does this dual-level framework complicate the concept of consent and what are the implications for state and federal courts?
Scott Dodson 26:50
The question is really to what consent applies personal jurisdiction in state court is governed by both the 14th Amendment's Due Process Clause and any state law limits that the state has. That's two separate bodies of law that each must be satisfied. Yet consent might apply to just one of them. For example, the defendant consents to personal jurisdiction under the Due Process Clause, but not under a state long-arm statute or vice versa. After all, consent under the Due Process Clause is a question of federal law, while consent under a state statute is a question of state law. And, federal and state law might define consent differently, so a single act might be deemed consent under one law, but not the other.
Juliette Draper 27:43
So, if a defendant consents to jurisdiction in state court, but not federal court, how should a federal court handle this?
Scott Dodson 27:52
This is a duality problem that's similar to the federal-state law problem. The difficulty here is in Federal Rule [of Civil Procedure] 4(k), which states that service establishes personal jurisdiction in federal court when the defendant is subject to the personal jurisdiction of a state court. Now, maybe a defendant who consents to state-court personal jurisdiction is automatically now subject to that court's personal jurisdiction, but only if the conduct amounts to true consent rather than waiver or forfeiture. But even then, only Rule 4(k) would be satisfied. A federal court’s exercise of personal jurisdiction would still have to comply with the Fifth Amendment's Due Process Clause. And, perhaps it wouldn't say, for example, a foreign company with no US contacts nevertheless registers to do business in Pennsylvania. Now, it doesn't actually ever do any business there, but it does substantial business in London, and it injures a New Yorker on vacation in London. The New Yorker can sue the defendant in Pennsylvania state court based on consent under Mallory, but the New Yorker probably cannot sue the defendant in Pennsylvania federal court because, as most people understand it, the Fifth Amendment would not permit federal-court personal jurisdiction over a foreign company for a foreign injury. Now, maybe federal law would deem consent to state-court jurisdiction to automatically be consent to federal-court jurisdiction, but that would be contrary to the defendant's autonomy in controlling the scope of its own consent.
Juliette Draper 29:48
I love that: “the autonomy of controlling the scope of its own consent.” So, in the last part of the article, you talk about like theorizing consent, then. And the article argues that consent should not be treated as a monolithic concept. So, what does this mean, and why is it important for the future of personal jurisdiction doctrine?
Scott Dodson 30:07
Mallory treated consent as a smooth and easy concept. But, I hope that your listeners are experiencing some head spinning now that suggests otherwise. The truth, I think, is that consent is a varied concept with lots of nuance and complexity, and we should treat it for what it is. Untangling consent certainly will be a lot of work, but in my view, that's the reality of the situation, and we're better off dealing honestly with consent than oversimplifying it and then running into intractable difficulties down the road. The court, by the way, has experienced such difficulties in other areas of jurisdiction. About 25 years ago, it pronounced that jurisdiction is a word of many, too many meanings, and it confessed that it itself had contributed to an oversimplification of jurisdiction that had led to waste and unfairness and a very messy doctrine. It has spent the last two decades and more than a dozen of its own cases to try to clean up that mess, and it's still not done. The lesson, I think, is that there are real costs to oversimplification. So, tackling consents’ complexities head on may seem daunting, but I think it's the better option than willful blindness.
Juliette Draper 31:31
Completely, so moving on, the article also suggests that International Shoes’ fair play and substantial justice principle could also guide the development of consent doctrine. So how might this principle be applied to consent-based jurisdiction?
Scott Dodson 31:45
It's with it's with some irony, actually, that I that I come back full circle to offer a role for International Shoe in consent doctrine in the paper. The idea is that consent’s contour—so when consent might be deemed effective—those are questions of fairness and circumstance that, quite frankly, International Shoe embodies in the famous phrase fair play and substantial justice. The point that I make in the paper is that International Shoe already injects personal jurisdiction with a heavy dose of free form notions of fairness. And I mean only to suggest that those same notions of fairness might be quite relevant to the extent and limits of consent. Consent operates as a vehicle for establishing personal jurisdiction, independent of International Shoes’ minimum contacts test, but perhaps consent can be informed by International Shoes’ fair play and substantial justice test.
Juliette Draper 32:47
That's super helpful. So, Professor Dodson, thank you so much for joining us and for discussing your article. Do you have any exciting pieces in the work that build on The Complexities of Consent to Personal Jurisdiction?
Scott Dodson 33:01
Yes, you can catch my latest personal jurisdiction article titled Personal jurisdiction and Federalism, forthcoming in Washington University Law Review. But in the meantime, Juliette, I'm so glad that I consented to doing this episode with you. It's really been a delight.
Juliette Draper 33:18
I'm so glad you consented as well, Professor. Thank you so much for joining us today. We hope you've enjoyed this episode of Source Collect. If you would like to read Professor Dodson's article The Complexities of Consent to Personal Jurisdiction, you can find it in Volume 113 of the California Law Review at californialawreview.org. For updates on new episodes and articles, please follow us on Instagram @californialawreview. Lastly, you can find a list of the editors who worked on this episode of the podcast in the show notes. Thank you, see you next time, and good luck to all the 1Ls about to learn civil procedure!
