Amicus Curiae Brief — Norfolk Southern Railway Company, Petitioner v. Robert Willmore Mallory, as Administrator of the Estate of Robert Thurston Mallory, et al.

No. 25-1208

In the

Supreme Court of the United States

NORFOLK SOUTHERN RAILWAY COMPANY,

Petitioner,

v.

ROBERT WILLMORE MALLORY,

AS ADMINISTRATOR OF THE ESTATE

OF ROBERT THURSTON MALLORY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the Court of

Common Pleas of Pennsylvania, Philadelphia County

BRIEF OF THE ATLANTIC LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Lawrence S. Ebner

Counsel of Record

Atlantic Legal Foundation

1701 Pennsylvania Avenue, NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

Attorney for Amicus Curiae

121045

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE .................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

The Court Should Grant Certiorari To Decide

Whether Consent-By-Registration Violates

the Dormant Commerce Clause…………….................5

A. Consent-by-registration undermines the

civil justice system by promoting

forum shopping………………………………………5

B. Consent-by-registration erodes interstate

federalism…………………………………………….15

CONCLUSION…………………………………………..17

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Atl. Marine Constr. Co. v. U.S. Dist. Ct.,

571 U.S. 49 (2013) ................................................ 12

Berk v. Choy,

146 S. Ct. 546 (2026) ............................................ 11

BNSF Ry. Co. v. Tyrrell,

581 U.S. 402 (2017) .......................................... 7, 13

Bristol-Myers Squibb Co. v. Super. Ct. of Cal.,

582 U.S. 255 (2017) .............................................. 15

Daimler AG v. Bauman,

571 U.S. 117 (2014) ...................................... 6, 7, 13

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .......................................... 11, 12

Goodyear Dunlop Tires Ops., S.A. v. Brown,

564 U.S. 915 (2011) ...................................... 6, 7, 13

Great Lakes Ins. SE v. Raiders Retreat Realty Co.,

LLC,

601 U.S. 65 (2024) ................................................ 11

Hanna v. Plumer,

380 U.S. 460 (1965) .............................................. 12

iii

Labrador v. Poe,

144 S. Ct. 921 (2024) ............................................ 11

Mallory v. Norfolk Southern Railway Co.,

600 U.S. 122 (2023) ........................... .2-8, 10, 13-17

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) .............................................. 12

Shady Grove Orthopedic Assoc., P.A. v.

Allstate Ins. Co., 559 U.S. 393 (2010) .................. 12

Southland Corp. v. Keating,

465 U.S. 1 (1984) .................................................. 12

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ............................................ . 11

United States v. Texas,

599 U.S. 670 (2023) .............................................. 11

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) .............................................. 11

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) .............................................. 15

Other Authorities

A. Benjamin Spencer, Jurisdiction to Adjudicate:

A Revised Analysis,

73 U. Chi. L. Rev. 616 (2006) ............................... 15

Am. Tort Reform (“ATR”) Found., Judicial Hellholes

2025–2026......................................................... 4, 14

iv

Anthony J. Gaughan, The Unsettled State of

Corporate General Personal Jurisdiction,

103 Neb. L. Rev. 131 (2024) ............................. 7, 13

Black’s Law Dictionary (12th ed. 2024) ...................... 8

Daniel Klerman, Rethinking Personal Jurisdiction,

6 J. Legal Analysis 245, 247 (2014). .................... 10

Daniel Klerman & Greg Reilly, Forum Selling,

89 S. Cal. L. Rev. 241 (2016)............................... 10

Friedrich K. Juenger, Forum Shopping, Domestic

and International, 63 Tulane L. Rev. 553

(1989) ...................................................................... 8

James E. Pfander & Jackie O’Brien, Realism,

Formalism, and Personal Jurisdiction: Due

Process after Mallory and Ford Motor,

103 Tex. L. Rev. 65, 100 (2024)............................ 10

Note, Forum Shopping Reconsidered, 103 Harv. L.

Rev. 1677 (1990) ................................................... 12

Richard Maloy, Forum Shopping – What’s Wrong

With That?, 24 Quinnipiac L. Rev. 25 (2005) ........ 8

Scott Dodson, Civil Procedure: The Culture of Forum

Shopping in Civil Litigation, in The Judges’ Book

(Berkeley Jud. Inst. ed., 2025)………….………8, 9

Tracey McDevitt Hagan & Molly Reilly, Commentary,

A Fork In the Road To Justice In Pennsylvania,

Mealey’s Litig. Rep. (May 28, 2025)…………….15

v

U.S. Chamber of Commerce Institute for Legal

Reform, Personal Jurisdiction After Mallory, ILR

Briefly, Nov. 2023................................................... 2

Will Lattimore, “Consent by Registration” After

Mallory—A Fifty State Summary,

12 Belmont L. Rev. 83 (2024)................................. 6

1

INTEREST OF THE AMICUS CURIAE 1

Established in 1977, the Atlantic Legal Foundation

(ALF) is a national, nonprofit, nonpartisan, public

interest law firm. ALF’s mission for the past five

decades has been to advance the rule of law and civil

justice by advocating for individual liberty, free

enterprise, property rights, limited and responsible

government, sound science in judicial and regulatory

proceedings, and effective education, including

parental rights and school choice. With the benefit of

guidance from the distinguished legal scholars, former

government officials, corporate legal officers, private

practitioners, business executives, and prominent

scientists who serve on its Board of Directors and

Advisory Council, ALF pursues its mission by

participating as amicus curiae in carefully selected

appeals before the Supreme Court, federal courts of

appeals,

and

state

supreme

courts.

See

atlanticlegal.org.

***

Clarity, predictability, and uniformity concerning

the circumstances under which an out-of-state

corporation can be haled into a state’s courts by an

out-of-state plaintiff—especially where, as here, the

cause of action has no connection to the forum state—

1 No counsel for a party authored this brief in whole or part, and

no party, counsel for a party, or person other than the amicus

curiae and its counsel made a monetary contribution intended to

fund preparation or submission of this brief.

2

are critical to civil justice. Until recently, the Court’s

modern personal-jurisdiction jurisprudence largely

achieved these objectives. But the split decision in

Mallory v. Norfolk Southern Railway Co., 600 U.S. 122

(2023), is a step backwards. It has left unanswered

important constitutional questions that have

produced significant uncertainty about whether or

when an out-of-state corporation can be subjected to a

state’s general (“all purpose”) jurisdiction merely by

registering to do business in the state.

This appeal squarely presents the key question left

unanswered by Mallory: Do state consent-byregistration statutes (i.e., statutes requiring a

corporation to accede to a state’s general jurisdiction

in order to register to do business) violate the dormant

Commerce Clause? Justice Alito discussed this crucial

question at length in his concurring opinion and

strongly suggested that the answer is yes. See

Mallory, 600 U.S. at 150–162 (Alito, J., concurring in

part and concurring in the judgment). It is a question

that courts and litigants throughout the United States

urgently need answered in light of Mallory’s holding

that consent-by-registration statutes do not violate

due process, at least in states where a corporation has

substantial operations.

ALF leaves the merits of the dormant Commerce

Clause issue to Petitioner Norfolk Southern. Instead,

this amicus brief emphasizes the need for review by

focusing on one of the principal adverse consequences

of consent-by-registration: forum shopping. Unless

and until the Court addresses the unanswered

3

dormant Commerce Clause question, Mallory not only

will enable, but also encourage, plaintiff-side forum

shopping, especially in notoriously plaintiff-friendly

state trial courts like Philadelphia’s Court of Common

Pleas. Relatedly, this brief also explains why Mallory,

and the forum shopping that it enables, undermines

interstate federalism.

ALF urges the Court to grant the petition for a writ

of certiorari and complete the constitutional analysis

of consent-by-registration that it began but did not

finish in Mallory.

SUMMARY OF ARGUMENT

Mallory has destabilized the Court’s previously

well-refined personal-jurisdiction jurisprudence. The

Court’s precedents on general personal jurisdiction

and specific personal jurisdiction seem meaningless if

a state can exercise personal jurisdiction over an outof-state corporate defendant in any and all cases

merely because it has registered to do business in the

state. The Court needs to remedy this situation

immediately by addressing the dormant Commerce

Clause question that Mallory did not answer. Until

the Court does so, Mallory will continue to undermine

the civil justice system by incentivizing forum

shopping and eroding interstate federalism.

By holding that consent-by-registration does not

offend due process—while declining to decide whether

consent-by-registration statues violate the dormant

Commerce Clause—Mallory has enabled every state to

transform its perfunctory corporate registration

4

system into an all-plaintiffs-are-welcome scheme for

exercising general jurisdiction over every registered

corporation regardless of where it is “at home” or

where a cause of action arose.

This in turn has unleashed significant,

unprecedented, forum-shopping opportunities for the

plaintiffs bar. Indeed, there is no shortage of plaintifffriendly forums throughout the United States. See

Am. Tort Reform (“ATR”) Found., Judicial Hellholes

2025–2026; 2 id. at 87 (“Judicial Hellholes are known

for being plaintiff-friendly and thus attract personal

injury cases with little or no connection to the

jurisdiction. Judges in these jurisdictions often refuse

to stop this forum shopping.”).

For many decades, and in a wide variety of

contexts, this Court has expressed concern about, and

sought to deter, abusive forum shopping. But

Mallory’s holding instigates rather than restrains it.

This is a compelling reason why the Court should

grant review and decide whether state consent-byregistration statutes conflict with the dormant

Commerce Clause.

State

personal-jurisdiction

overreach

also

undermines interstate federalism. The coequal status

of each state’s sovereignty is a pillar of the

Constitution’s federalist structure. By asserting

general jurisdiction over each and every corporation

2 https://judicialhellholes.org/wpcontent/uploads/2025/12/ATRA_JH25_text_05.pdf.

5

that merely registers to do business, a state imposes

its sovereignty beyond its borders in a way that

interferes with other states’ sovereignty—such as the

sovereignty of the state where a corporation is

incorporated or headquartered, or the state where a

cause of action arose.

ARGUMENT

The Court Should Grant Certiorari To Decide

Whether Consent-By-Registration Violates the

Dormant Commerce Clause

A. Consent-by-registration undermines the

civil justice system by promoting forum

shopping

1. Mallory’s incomplete constitutional analysis has

engendered significant uncertainty about the validity,

or at least the permissible limits, of state consent-byregistration statutes. The Court’s 5 to 4 due-process

holding does not clarify whether it is limited to out-ofstate corporations with “substantial operations” in the

forum state. See 600 U.S. at 150 (Alito, J., concurring

in part and concurring in the judgment). And although

the Court expressly declined to consider whether state

consent-by-registration statutes violate the dormant

Commerce Clause, id. at 127 n.3, Justice Alito’s

separate opinion discusses at length why “there is a

good prospect” that they do where, as here, a state

asserts general jurisdiction “over an out-of-state

6

company in a suit brought by an out-of-state plaintiff

on claims wholly unrelated” to the state. Id. at 160. 3

The net result is that “Mallory cleared a path

allowing all states to adopt and apply ‘consent by

registration.’”

Will

Lattimore,

“Consent

by

Registration” After Mallory—A Fifty State Summary,

12 Belmont L. Rev. 83, 85 (2024). “All a State must do

is compel a corporation to register to conduct business

there (as every State does) and enact a law making

registration sufficient for suit on any cause (as every

State could do).” Mallory, 600 U.S. at 163-64 (Barrett,

J., dissenting). “If States take up the Court’s invitation

to manipulate registration, Daimler and Goodyear will

be obsolete, and, at least for corporations, specific

jurisdiction will be ‘superfluous.’” Id. at 180 (Barrett,

J., dissenting) (citing Daimler AG v. Bauman, 571 U.S.

Justice Alito explained that “a state law may offend the

Commerce Clause's negative restrictions in two circumstances:

when the law discriminates against interstate commerce or when

it imposes undue burdens on interstate commerce.

Discriminatory state laws are subject to a virtually per se rule of

invalidity.” Id. (cleaned up). In Justice Alito’s view “[t]here is

reason to believe that Pennsylvania's registration-based

jurisdiction law discriminates against out-of-state companies.

But at the very least, the law imposes a significant burden on

interstate commerce by [r]equiring a foreign corporation . . . to

defend itself with reference to all transactions, including those

with no forum connection.” Id. (cleaned up).

3

7

117 (2014); Goodyear Dunlop Tires Ops., S.A. v.

Brown, 564 U.S. 915 (2011)). 4

“[C]onsent-by-registration statutes, if adopted

more broadly, would make it impossible for businesses

to predict where they will be sued, leading to massive

litigation costs that will be especially burdensome for

small and medium-sized businesses.” U.S. Chamber of

Commerce Institute for Legal Reform (“ILR”),

Personal Jurisdiction After Mallory, ILR Briefly, Nov.

2023, at 2. 5

“Left unchecked the [Mallory] ruling will give rise

to a patchwork quilt of conflicting general jurisdiction

rules.” Anthony J. Gaughan, The Unsettled State of

Corporate General Personal Jurisdiction, 103 Neb. L.

Rev. 131, 132 (2024). “Large companies may be able to

manage the patchwork of liability regimes, damages

caps, and local rules in each State, but the impact on

small companies, which constitute the majority of all

4 Under Goodyear and Daimler, a corporation must be “at home”

in the forum state for it to be subjected to the state’s general

jurisdiction. See Goodyear, 564 U.S. at 919, 924; Daimler, 571

U.S. at 137; see also BNSF Ry. Co. v. Tyrrell, 581 U.S. 402, 40506 (2017) (“Our precedent . . . explains that the Fourteenth

Amendment’s Due Process Clause does not permit a State to hale

an out-of-state corporation before its courts when the corporation

is not ‘at home’ in the State and the episode-in-suit occurred

elsewhere.”).

5 https://instituteforlegalreform.com/wp-

content/uploads/2023/11/ILR-Briefly-Mallory-PersonalJurisdiction-FINAL.pdf.

8

U.S. corporations, could be devastating.” Mallory, 600

U.S. at 161-62 (Alito, J., concurring in part and

concurring in the judgment).

2. In the wake of Mallory, states that assert

general jurisdiction over out-of-state corporations

based merely on registration to do business have

become magnets for plaintiff-side forum shopping.

Forum shopping is “[t]he practice of choosing the

most favorable jurisdiction or court in which a claim

may be heard.” Black’s Law Dictionary (12th ed.

2024). “Motive and opportunity breed forum shopping,

which reflects the reality that a plaintiff who must

initially choose between available forums is likely to

choose one favorable to the plaintiff’s interests.” Scott

Dodson, Civil Procedure: The Culture of Forum

Shopping in Civil Litigation, in The Judges’ Book 26

(Berkeley Jud. Inst. ed., 2025).

But forum shopping often is demonstrably unfair,

especially to corporate defendants confronted with

class actions or other mass litigation. “As a rule,

counsel, judges, and academicians employ the term

‘forum shopping’ to reproach a litigant who, in their

opinion, unfairly exploits jurisdictional or venue rules

to affect the outcome of a lawsuit.” Friedrich K.

Juenger,

Forum

Shopping,

Domestic

and

International, 63 Tulane L. Rev. 553 (1989); see also

Richard Maloy, Forum Shopping – What’s Wrong With

That?, 24 Quinnipiac L. Rev. 25, 28 (2005) (“[F]orum

shopping is the taking of an unfair advantage of a

party in litigation.”)

9

Plaintiffs attorneys forum shop for a variety of

reasons. For example, they file suits in courts with—

•

plaintiff-friendly judges and juries;

•

long statutes of limitations;

•

favorable substantive law and receptivity to

novel and expansive theories of corporate

liability;

•

discovery and trial-court procedures slanted

toward plaintiffs;

•

lax standards, or enforcement of standards, for

admission of expert testimony; and

•

high damages caps (if any), coupled with a

reputation for “nuclear verdicts” or excessive

damages awards.

“More nefariously, plaintiffs might shop for a forum

that, geographically, is highly inconvenient for the

defendant. . . . Less nefariously, plaintiffs might shop

for a forum that is most convenient for them.” Dodson,

supra, at 30.

In today’s ultra-litigious climate, third-party

litigation funding, targeted advertising to attract

potential claimants and bias the jury pool, and

widespread coordination within the plaintiffs bar,

facilitate forum shopping to the detriment of corporate

10

defendants. See James E. Pfander & Jackie O’Brien,

Realism, Formalism, and Personal Jurisdiction: Due

Process after Mallory and Ford Motor, 103 Tex. L. Rev.

65, 100 (2024).

3. Plaintiff-side forum shopping not only is unfair to

corporate defendants, but also can undermine a

state’s judiciary, especially in states where judges are

elected. This is because the availability of forum

shopping “can lead to ‘forum selling,’ the creation of

excessively pro-plaintiff law by judges who want to

hear more cases.” Daniel Klerman, Rethinking

Personal Jurisdiction, 6 J. Legal Analysis 245, 247

(2014).

“Loose jurisdictional rules that allow plaintiffs to

choose among many potential courts give judges an

incentive to be pro-plaintiff in order to attract

litigation.” Id. “Without constitutional constraints on

assertions of jurisdiction, some courts are likely to be

biased in favor of plaintiffs in order to attract

litigation and thus benefit themselves or their

communities.” Daniel Klerman & Greg Reilly, Forum

Selling, 89 S. Cal. L. Rev. 241, 243 (2016). For

example, some state-court judges may want to attract

high-profile cases to enhance their own reputations

and careers or to impose their own ideological views.

This troubling corollary to forum shopping “leads to

inefficient distortions of substantive law, procedure,

and trial management practices.” Id. at 246.

11

4. At least since Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938), this Court, in many different contexts,

has decried forum shopping. See, e.g.,

• Berk v. Choy, 146 S. Ct. 546, 554 (2026) (“A state

law is substantive if . . . failing to apply it in federal

court would promote forum shopping and the

inequitable administration of the law.”);

• Trump v. CASA, Inc., 606 U.S. 831, 899-900 (2025)

(Sotomayor,

J.,

dissenting)

(“[U]niversal

injunctions encourage forum shopping, by allowing

preferred district judges in a venue picked by one

plaintiff to

enjoin governmental policies

nationwide.”); Labrador v. Poe, 144 S. Ct. 921, 927

(2024) (mem.) (“In universal-injunction practice

. . . [j]ust do a little forum shopping for a willing

judge and . . . you can win a decree barring the

enforcement of a duly enacted law against

anyone.”); United States v. Texas, 599 U.S. 670,

694 (2023) (“Universal injunctions . . . encourage

parties to engage in forum shopping . . . .”);

•

Great Lakes Ins. SE v. Raiders Retreat Realty Co.,

LLC, 601 U.S. 65, 72 (2024) (“Choice-of-law

provisions . . . discourage forum shopping, further

cutting the costs of litigation.”);

• Williams-Yulee v. Florida Bar, 575 U.S. 433, 454

(2015) (rejecting a state judge recusal rule “that

would enable transparent forum shopping”);

12

• Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.

663, 670 (2014) (“The federal limitations

prescription governing copyright suits serves . . . to

prevent the forum shopping invited by disparate

state limitations periods . . . .”);

• Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S.

49, 65 (2013) (federal change-of-venue statute

“should not create or multiply opportunities for

forum shopping” where parties have agreed to a

contractual forum-selection clause) (internal

quotation marks omitted);

• Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins.

Co., 559 U.S. 393, 415 (2010) (“We must

acknowledge the reality that keeping the federalcourt door open to class actions that cannot

proceed in state court will produce forum

shopping.”).

• Southland Corp. v. Keating, 465 U.S. 1, 15 (1984)

(“The interpretation given to the Arbitration Act

by the California Supreme Court would therefore

encourage and reward forum shopping.”);

• Hanna v. Plumer, 380 U.S. 460, 468 (1965)

(“discouragement of forum-shopping” is one of the

Erie rule’s aims).

See also Note, Forum Shopping Reconsidered, 103

Harv. L. Rev. 1677, 1681 (1990) (“The Supreme Court

13

has relied on the ‘danger of forum shopping’ in

reaching many decisions.”).

5. “[T]he Goodyear trilogy”—Goodyear, Daimler,

and BNSF, see supra note 4—“reduced forum

shopping.” Gaughan, supra, at 181. Mallory is having

exactly the opposite effect.

“Goodyear and its companion cases placed plaintiffs

and defendants on a level playing field. But the

Mallory decision destroys that equilibrium and

creates a new era of instability in corporate general

jurisdiction. . . . Mallory thus gives forum shopping

special new potency.” Id. at 136, 137.

The plaintiffs’ bar has seized on Mallory to

press for a return to the days of abusive

forum shopping when, prior to cases like

Daimler, they could bring a case almost

anywhere—even if the state lacked any

connection to the parties or the dispute.

Indeed, Justice Alito recognized that

Mallory

is about forum shopping—

describing the Philadelphia court system

involved in that case as a “venue that is

reputed to be especially favorable to tort

plaintiffs.”

ILR, supra, at 9 (quoting Mallory, 600 U.S. at 154

(Alito, J., concurring in part and concurring in the

judgment)).

“[U]nrestricted forum shopping makes it almost

impossible for defendants to get a fair trial in some of

the magic jurisdictions favored by the plaintiffs’ bar,

14

where trial lawyers have established relationships

with the judges that are elected.” Id. at 9 (internal

quotation marks omitted).

The Court needs to get “to the end of the story for

registration-based jurisdiction” by granting certiorari

and restoring credibility and vitality to its personal

jurisdiction precedents. Mallory, 600 U.S. at 154

(Alito, J., concurring in part and concurring in the

judgment).

6. Justice Alito’s observation that Philadelphia’s

Court of Common Pleas—the court where this suit

was filed—is “especially favorable to tort plaintiffs” is

an understatement. That court is among the top 5 on

the American Tort Reform Foundation’s latest list of

the nation’s worst “Judicial Hellholes.” See ATR

Found., Judicial Hellholes 2025/2026, supra, at 1.

The Judicial Hellholes report emphasizes that “[t]he

City of Brotherly Love’s reputation as a Judicial

Hellhole® has spread far and wide, drawing plaintiffs’

lawyers from across the country eager to file cases

there, while prompting defendants to settle at almost

any cost to avoid the massive nuclear verdicts® for

which the court has become notorious.” Id. at 36.

Mallory has turbo-charged the personal injury bar’s

incentives for filing mass tort litigation in

Philadelphia’s Court of Common Pleas. The “Mallory

decision has all roads leading to Pennsylvania.”

Tracey McDevitt Hagan & Molly Reilly, Commentary,

A Fork In the Road To Justice In Pennsylvania,

Mealey’s Litig. Rep. (May 28, 2025) at 2. “The impact

15

of forum shopping on litigation in Philadelphia is

undeniable.” Id. at 1.

B. Consent-by-registration erodes interstate

federalism

Consent-by-registration undermines the civil

justice system not only by facilitating forum shopping,

but also by upsetting the balance of “interstate

federalism.”

This term “refers to the relationship between the

states within our federal system, their status as

coequal sovereigns, and the limits on state power that

derive from that status.” A. Benjamin Spencer,

Jurisdiction to Adjudicate: A Revised Analysis,

73 U. Chi. L. Rev. 616, 624, 637 (2006). The fifty States

are “coequal sovereigns,” World-Wide Volkswagen

Corp. v. Woodson, 444 U.S. 286, 292 (1980). “‘The

sovereignty of each State . . . implie[s] a limitation on

the sovereignty of all its sister States.’” Bristol-Myers

Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255, 263

(2017) (quoting World-Wide Volkswagen, 444 U.S. at

293).

Five Justices in Mallory expressed serious

concerns about the effect of consent-by-registration on

interstate federalism. In her dissenting opinion,

Justice Barrett, joined by Chief Justice Roberts and

Justices Kagan and Kavanaugh, argued that

[t]he Due Process Clause protects more

than the rights of defendants—it also

protects interstate federalism. We have

emphasized this principle in case after

16

case. . . . [W]hen a State announces a

blanket rule that ignores the territorial

boundaries on its power, federalism

interests are implicated too.

Pennsylvania's effort to assert general

jurisdiction over every company doing

business within its borders infringes on

the sovereignty of its sister States in a

way no less “exorbitant” and “grasping”

than attempts we have previously

rejected.

Mallory, 600 U.S. at 169 (Barrett, J., dissenting).

Along the same lines, Justice Alito explained in his

Mallory concurrence that “[t]he notion that the

Commerce Clause restrains States . . . vindicates a

fundamental aim of the Constitution: fostering the

creation of a national economy and avoiding the everyState-for-itself practices that had weakened the

country under the Articles of Confederation.” Id. at

157 (Alito, J., concurring in part and concurring in the

judgment).

In Justice Alito’s view,

[i]t is especially appropriate to look to the

dormant Commerce Clause in considering

the constitutionality of the authority

asserted by Pennsylvania’s registration

scheme. Because the right of an out-ofstate corporation to do business in

another State is based on the dormant

Commerce Clause, it stands to reason

17

that this doctrine may also limit a State’s

authority to condition that right.

Id. at 158-59.

Rather than respecting each state’s role as a

coequal sovereign, a state that imposes a consent-byregistration scheme so that it can assert general

jurisdiction over out-of-state corporations regardless

of where they are at home or where a cause of action

arose violates interstate federalism by encroaching

upon the sovereignty of other states.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

LAWRENCE S. EBNER

Counsel of Record

ATLANTIC LEGAL FOUNDATION

1701 Pennsylvania Ave., NW

Washington, DC 20006

(202) 729-6337

lawrence.ebner@atlanticlegal.org

April 2026