# Mallory v. Norfolk Southern/Opinion of Justice Jackson

SUPREME COURT OF THE UNITED STATES
No. 21–1168
ROBERT MALLORY, PETITIONER v. NORFOLK SOUTHERN RAILWAY CO. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA, EASTERN DISTRICT [June 27, 2023]
Justice Jackson, concurring.
I agree with the Court that this case is straightforward under our precedents. I write separately to say that, for me, what makes it so is not just our ruling in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 (1917). I also consider our ruling in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 (1982), to be particularly instructive.
In Insurance Corp. of Ireland, this Court confirmed a simple truth: The due process “requirement of personal jurisdiction” is an individual, waivable right. Id., at 703. The requirement exists, we said, to ensure that the forum State has sufficient contacts with a defendant, such that “ ‘the maintenance of the suit [does] not offend “traditional notions of fair play and substantial justice.” ’ ” Ibid. (quoting International Shoe Co. v. Washington, 326 U. S. 310, 319 (1945)). We noted further that the interstate federalism concerns informing that right are “ultimately a function of the individual liberty interest” that this due process right preserves. 456 U. S., at 703, n. 10. Because the personal-jurisdiction right belongs to the defendant, however, we explained that a defendant can choose to “subject [itself] to powers from which [it] may otherwise be protected.” Ibid. When that happens, a State can exercise jurisdiction over the defendant consistent with the Due Process Clause, even ​if our personal-jurisdiction cases would normally preclude the State from subjecting a defendant to its authority under the circumstances presented. Ibid.
Waiver is thus a critical feature of the personal-jurisdiction analysis. And there is more than one way to waive personal-jurisdiction rights, as Insurance Corp. of Ireland also clarified. A defendant can waive its rights by explicitly or implicitly consenting to litigate future disputes in a particular State’s courts. Id., at 703–704. A defendant might also fail to follow specific procedural rules, and end up waiving the right to object to personal jurisdiction as a consequence. Id., at 705–706. Or a defendant can voluntarily invoke certain benefits from a State that are conditioned on submitting to the State’s jurisdiction. Id., at 704 (citing Adam v. Saenger, 303 U. S. 59, 67–68 (1938)).
Regardless of whether a defendant relinquishes its personal-jurisdiction rights expressly or constructively, the basic teaching of Insurance Corp. of Ireland is the same: When a defendant chooses to engage in behavior that “amount[s] to a legal submission to the jurisdiction of the court,” the Due Process Clause poses no barrier to the court’s exercise of personal jurisdiction. 456 U. S., at 704–705.
In my view, there is no question that Norfolk Southern waived its personal-jurisdiction rights here. As the Court ably explains, Norfolk Southern agreed to register as a foreign corporation in Pennsylvania in exchange for the ability to conduct business within the Commonwealth and receive associated benefits. Ante, at 10–11; see also post, at 2 (Alito, J., concurring in part and concurring in judgment). Moreover, when Norfolk Southern made that decision, the jurisdictional consequences of registration were clear. See 42 Pa. Cons. Stat. §5301(a)(2)(i) (1981) (expressly linking “qualification as a foreign corporation under the laws of th[e] Commonwealth” to the “exercise [of] general personal jurisdiction”); 266 A. 3d 542, 569 (Pa. 2021) (acknowledging ​that “foreign corporations are given reasonable notice” of the jurisdictional implications of registration).
Nor was Norfolk Southern compelled to register and submit itself to the general jurisdiction of Pennsylvania courts simply because its trains passed through the Commonwealth. See, e.g., 15 Pa. Cons. Stat. §403(a)(11) (2014); 1972 Pa. Laws pp. 1154–1155. Registration is required when corporations seek to conduct local business in a “regular, systematic, or extensive” way. 266 A. 3d, at 562–563 (internal quotation marks omitted). Norfolk Southern apparently deemed registration worthwhile and opted in.
Under Insurance Corp. of Ireland, the due process question that this case presents is easily answered. Having made the choice to register and do business in Pennsylvania despite the jurisdictional consequences (and having thereby voluntarily relinquished the due process rights our general-jurisdiction precedents afford), Norfolk Southern cannot be heard to complain that its due process rights are violated by having to defend itself in Pennsylvania’s courts. Whether Pennsylvania could have asserted general jurisdiction over Norfolk Southern absent any waiver, see post, at 3–4 (Barrett, J., dissenting), is beside the point.
In other areas of the law, we permit States to ask defendants to waive individual rights and safeguards. See, e.g., Brady v. United States, 397 U. S. 742, 748 (1970) (allowing plea bargains to waive a defendant’s trial rights and the right against self-incrimination); Barker v. Wingo, 407 U. S. 514, 529, 536 (1972) (waiver of speedy trial rights). Moreover, when defendants do so, we respect that waiver decision and hold them to that choice, even though the government could not have otherwise bypassed the rules and procedures those rights protect. Insisting that our general-jurisdiction precedents preclude Pennsylvania from subjecting corporations to suit within its borders—despite their waiver of the protections those precedents entail—puts the personal-jurisdiction requirement on a pedestal. But there is nothing ​“unique about the requirement of personal jurisdiction [that] prevents it from being … waived like other [individual] rights.” Insurance Corp. of Ireland, 456 U. S., at 706.
In short, Insurance Corp. of Ireland makes clear that the personal-jurisdiction requirement is an individual, waivable right, and I agree with the Court that Norfolk Southern waived that right by choosing to register as a foreign corporation under the circumstances presented in this case. Therefore, I perceive no due process problem with the registration statute at issue here.