The Complexities of Consent to Personal Jurisdiction

Mallory v. Norfolk Southern Railway Co., decided in June 2023, held that consent remains a method of establishing personal jurisdiction independent of the “minimum contacts” test established by International Shoe Co. v. Washington. To many, the decision resolved ambiguity in personal jurisdiction doctrine and represented a straightforward way of establishing personal jurisdiction. But Mallory failed to consider the many complexities underlying consent. In this Article, I showcase those complexities and demonstrate that Mallory is just the tip of the iceberg: A host of questions, some fundamental to both consent theory and personal-jurisdiction doctrine, lurk beneath the surface. I argue that those complexities should be embraced, not ignored. I offer guideposts for taking the first steps toward fundamental theorizing about consent to personal jurisdiction to avoid misinterpretations of historical precedent and accurately reflect the many facets of consent.

Table of Contents Show

Introduction

The pathbreaking 1945 case International Shoe Co. v. Washington[1] dispensed with traditional limitations on personal jurisdiction—previously restricted to residents, in-state service, and voluntary appearance[2]—to establish a new way for state courts to exercise personal jurisdiction over a party with “certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”[3]

The Court subsequently explained that this test can be met through either general, all-purpose personal jurisdiction or specific, case-linked personal jurisdiction.[4] In 2011 and 2013, the Court restricted general jurisdiction to where the defendant is “at home.”[5] And in a series of cases culminating in Ford Motor Co. v. Montana Eighth Judicial District,[6] the Court completed a three-part framework for specific jurisdiction focusing on the “relationship among the defendant, the forum, and the litigation.”[7]

In the 2023 case, Mallory v. Norfolk Southern Railway Co.,[8] the Supreme Court confronted whether party consent could establish personal jurisdiction without regard to International Shoe. Five Justices answered yes.[9] And, relying on pre-International Shoe precedent, the Court held that the defendant consented to general personal jurisdiction in Pennsylvania by complying with the state’s unique business-registration statute,[10] which permitted state courts to “exercise general personal jurisdiction” over a registered corporation.[11]

Scholars and commentators hailed Mallory as opening a wide new avenue for consent-based personal jurisdiction. Professor Alan Morrison headlined part of his summary of the case using the header title “Consent Enough.”[12] Professor Maggie Gardner has written that Mallory’s reinvigoration of consent doctrine may swallow the limitations set by International Shoe and its progeny.[13] The Harvard Law Review published a case note proclaiming Mallory’s consent theory to be “significant.”[14] On the practitioner side, one law firm predicted that the case “may spawn many attempts by litigation tourists to assert personal jurisdiction based on consent even in the absence of a consent-by-registration scheme.”[15] These commentators correctly recognize that consent has become a powerful justification for personal jurisdiction outside International Shoe.

But courts and commentators focusing on consent’s new power have not paid close attention to the many complexities of consent to personal jurisdiction.[16] They have not parsed the multifaceted historical pedigree of consent to personal jurisdiction. They have not settled on the distinction between consent, waiver, and forfeiture. They have not considered the various timing implications of consent to personal jurisdiction. And they have not wrestled with the implications of consent for a doctrine governed by both federal and state law. Even though the Justices seem aware of some of these complexities,[17] the opinions in Mallory avoided them entirely, and litigants are already seeking to extend and apply Mallory without due consideration of the many unsettled issues underlying consent.[18]

The principal thesis of this Article is that consent to personal jurisdiction is not a simple idea. Consent’s complexities span history, theory, and application. On history, contrary to the conventional account, consent to personal jurisdiction does not have a long and consistent pedigree in the Court’s cases but instead is a recent addition born of twisted precedent and recharacterized holdings. On theory, consent has become an undifferentiated amalgam of true consent, waiver, and forfeiture, concepts that, in fact, have distinct meanings and implications. And on application, consent raises difficult issues of timing, enforceability, and revocation; of the interplay of constitutional and statutory law; and of the relationship between state and federal law. Consent is not the easy, monolithic method of establishing personal jurisdiction that Mallory makes it out to be.

A complicated doctrine should be treated as such to avoid the risk that the attempt to maintain a façade of clarity and simplicity will eventually falter and seriously disrupt both doctrine and practice. And we ought not fear confronting consent’s complexity. Existing doctrines of consent, of due process, and even of personal jurisdiction can supply useful guideposts for making sense of consent to personal jurisdiction after Mallory. Perhaps somewhat ironically, International Shoe, with its emphasis on fair play and substantial justice, may have a key role to play in helping to guide consent doctrine, while other constitutional doctrines can keep consent in check. Consent’s complexities should be embraced, not ignored.

Part I begins by documenting the evolution of consent in personal jurisdiction doctrine. For most of this nation’s history, and in English and colonial law before it, personal jurisdiction could be established either by service of summons within the territorial limits of a court’s authority or by the defendant’s voluntary appearance in the specific case.[19] Consent, as an animating concept, had little to do with either method. Defendants could consent to the appointment of an agent for purposes of receiving in-state service of process, but the court’s jurisdiction then resulted not from direct consent to personal jurisdiction but from the subsequent in-state service on that particular agent.[20] It was not until the mid-1900s that the Court began identifying consent as a direct basis for personal jurisdiction, and, in the process, it conflated notions of consent, waiver, forfeiture, estoppel, and ex ante promises.[21] Mallory fails to grapple with this convoluted history of consent and personal jurisdiction.

Against this backdrop, Part II unravels the various strands of consent along five dimensions. First, this Part distinguishes direct consent to jurisdiction, as under the Pennsylvania statute in Mallory, from consent to conditions of service, as established by the pre-International Shoe cases.[22] Second, this Part distinguishes between consent, waiver, and forfeiture, all of which have been conflated by courts and commentators but rest on different foundations, serve different purposes, and have different effects.[23] Third, this Part explores the implications of timing, contrasting ex ante consent from contemporaneous-litigation consent, and questions whether the former is true consent or is a mere promise to consent.[24] Fourth, this Part considers the implications of consent on personal jurisdiction’s dual levels of constitutional and statutory restrictions, suggesting ambiguity in whether consent might apply to just constitutional restrictions, just statutory restrictions, or both.[25] Fifth, this Part explores how consent to state court personal jurisdiction might affect federal court personal jurisdiction and vice versa.[26]

Part III then offers some general guideposts and principles for developing a coherent theory of consent attuned to these complexities. At the outset, this Part urges courts and commentators to avoid characterizing consent as a simple, monolithic concept.[27] Turning next to the first steps of building a workable consent doctrine, this Part proposes grounding consent not in history but instead in International Shoe’s “fair play and substantial justice” principle, constrained by applications of consent adapted from analogous contexts like state sovereign immunity.[28] A brief conclusion sketches likely future developments.

I. A History of Personal Jurisdiction and Consent

Mallory relies on pre-International Shoe precedent from 1917. But the relevant history goes back much further, and that history is essential for understanding the complexities of consent to personal jurisdiction today.

A.     The Traditional Role of Consent

For hundreds of years, until the mid-1900s, personal jurisdiction was grounded in one of two primary bases: voluntary appearance or in-state service. Neither was characterized as consent to personal jurisdiction.

Voluntary appearance was the sole basis for judicial jurisdiction when the doctrine developed in England. The defendant’s voluntary appearance was essential to the legitimacy of the court proceeding and ultimate decree.[29] So essential was it that the common law relied on assorted and often harsh means of inducing the defendant to appear, including civil arrest.[30] Crucially, voluntary appearance was necessary “regardless of the domicile of the defendant or any kind of territorial restriction on the court.”[31] Territorial borders were unimportant; instead, judicial power was based solely on the defendant’s actual, physical appearance in the pertinent litigation.

Draconian measures for compelling physical appearance, especially civil arrest, fell out of favor by the 1700s. The Frivolous Arrest Act of 1725 replaced the need for actual appearance with constructive appearance by way of civil summons, often coupled with the posting of bail.[32] Formal service of the court-ordered summons on the defendant was itself deemed sufficient to bring the defendant under the authority of the court.

The American colonies inherited these British traditions and added homegrown rules tailored to their own governmental structures and social experiences.[33] The community of semi-autonomous colonies presented territorial problems for jurisdiction by service of a summons. Most notably, cross-border service caused frictions among courts with competing claims to jurisdiction over the defendant.[34] In the spirit of good fences making good neighbors, the colonies, and later the states, developed the rule that service of a summons was restricted to territorial borders.[35] Accordingly, service was sufficient to bring the defendant under the personal jurisdiction of a state’s courts, but only if service was made while the defendant was physically present within the state’s territorial limits.

The in-state service rule was easy to apply to natural persons but trickier to apply to corporations, which lack a physical body to receive service. To prevent corporations from escaping liability in their courts, states quickly learned to use their laws to deem service on in-state corporate agents to be in-state service on the corporation.[36] Crucially, and as repeatedly recognized by the Court, the business-registration statutes purported to extract consent to the appointment of an in-state agent for purposes of in-state service, not to consent to personal jurisdiction directly.

In Lafayette Insurance Co. v. French,[37] Ohio law deemed service on an in-state agent of an out-of-state insurance company “as effectual as though the same were served on the principal” when suit arose out of an insurance contract with an Ohio resident.[38] Upholding personal jurisdiction over the out-of-state insurance company based on such service, the Court stated:

Now, when this corporation sent its agent into Ohio, with authority to make contracts of insurance there, the corporation must be taken to assent to the condition . . . that an agent, to make contracts, should also be the agent of the corporation to receive service of process in suits on such contracts . . . . The process was served within the limits and jurisdiction of Ohio, upon a person qualified by law to represent the corporation there in respect to such service . . . . [T]he corporation was personally amenable to that jurisdiction; and we hold such a judgment, recovered after such notice, to be as valid as if the corporation had had its habitat within the State . . . .”[39]

French has sometimes been characterized as an early case of implied consent to personal jurisdiction directly.[40] But the defendant’s consent—or “assent,” in the Court’s terminology—was to agree that service on its in-state agent was in-state service on the company. That assent was not consent to jurisdiction directly but rather consent to the appointment of an in-state agent, a predicate condition to jurisdiction by subsequent in-state service. French thus falls naturally under the traditional jurisdiction-by-service mechanism.

The infamous case Pennoyer v. Neff confirms this interpretation.[41] Pennoyer reiterates the two traditional methods of establishing personal jurisdiction over a nonresident: “service of process within the State, or his voluntary appearance.”[42] The former method included “cases in which that mode of service may be considered to have been assented to in advance,”[43] as under agent-appointment statutes like the one at issue in French.[44] Thus, Pennoyer, like French, treated “assent” as consent to the appointment of an in-state agent for purposes of establishing valid in-state service, not as consent to personal jurisdiction directly.[45]

A federal diversity case decided the same year as Pennoyer, Ex parte Schollenberger,[46] reconfirmed that consent was to an agent’s appointment, not to personal jurisdiction. There, foreign insurance companies had appointed agents residing in Pennsylvania for service of process, as required by Pennsylvania law to conduct business in the state.[47] At the time, the federal venue statute allowed suit to be brought in the district where the defendant “shall be found at the time of serving such process or commencing such proceeding.”[48] The Court held that, under federal venue law, the companies agreed to be “found” in Pennsylvania by appointing agents in Pennsylvania in compliance with Pennsylvania law.[49] Crucially, the Court distinguished between direct consent to personal jurisdiction, which was impermissible, and consent to factual conditions that could then establish personal jurisdiction by in-state service, which was permissible:

States cannot by their legislation confer jurisdiction upon the courts of the United States, neither can consent of parties give jurisdiction when the facts do not; but both State legislation and consent of parties may bring about a state of facts which will authorize the courts of the United States to take cognizance of a case.[50]

For the remainder of the 1800s and into the 1900s, the Court adhered to the principle that defendants could consent to in-state service conditions established by state law. In St. Claire v. Cox,[51] the Court, citing French, held that a state may require a corporation doing business in the state to “stipulate that in any litigation arising out of its transactions in the state, it will accept as sufficient the service of process on its agents,” and “such condition and stipulation may be implied as well as expressed.”[52]

In Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Co.,[53] the case Mallory principally relied upon, the Court extended the principle of French to assertions of general personal jurisdiction. There, a Pennsylvania insurance company issued a policy to an Arizona company covering buildings in Colorado.[54] The insurance company had registered to do business in Missouri, whose registration statute required the appointment of an in-state agent for service of process, and the insurance company had complied with the Missouri statute by expressly appointing the Missouri insurance superintendent as its in-state agent.[55] The Arizona policyholder sued the Pennsylvania insurance company in Missouri on the Colorado policy and served the Missouri superintendent.[56] Based on that in-state service, the Court upheld Missouri’s exercise of personal jurisdiction even though the claim arose entirely outside the state.[57]

In Mutual Reserve Fund Life Association v. Phelps,[58] the Court upheld jurisdiction over a company that implicitly agreed to in-state service upon the state’s insurance commissioner, as prescribed by the state business-registration statute, when the claim arose in the state.[59]

And, in Hess v. Pawloski,[60] the Court upheld a Massachusetts statute providing that a nonresident driver’s operation of a vehicle on Massachusetts roads was “deemed equivalent” to the nonresident’s express appointment of the Massachusetts registrar as the nonresident’s agent for lawful in-state service of process in any action arising from any accident in Massachusetts involving the nonresident. The statute also provided that the nonresident “agree[s] that any such process against him which is so served shall be of the same legal force and validity as if served on him personally.”[61] Hess is often misinterpreted as recognizing implied consent to personal jurisdiction,[62] but the case is really about implied consent to the appointment of an agent for in-state service.[63]

Importantly, in all these cases, consent was with respect to specific conditions of in-state service, not to personal jurisdiction directly. To illustrate the distinction, suppose on the facts of any of these cases the company had been properly served by some authorized method of service other than service on the appointed in-state agent. If the state statute had been deemed to extract consent to personal jurisdiction directly, then a state could have exercised personal jurisdiction over the company regardless of the mode of service used. Yet the Court repeatedly emphasized that personal jurisdiction in these circumstances was tied to the mode of service agreed to.[64] Thus, French, Pennoyer, and their progeny reflect not consent to personal jurisdiction directly but consent to conditions of in-state service that could, if service is made accordingly, then give a state jurisdiction.

Meanwhile, voluntary appearance continued to be a separate and independent basis for personal jurisdiction. In the early case of Pollard v. Dwight,[65] for example, Connecticut plaintiffs sued Virginia defendants in Connecticut state court. The defendants appeared, removed the case to federal court based on diversity jurisdiction, and tried the case to a verdict for the plaintiffs.[66] The defendants then unsuccessfully moved in arrest of judgment, arguing that the Connecticut district court lacked personal jurisdiction over them because they were neither inhabitants of, nor served in, Connecticut.[67] A unanimous Supreme Court affirmed. Chief Justice Marshall, writing for the Court, dispensed with the jurisdictional argument: “By appearing to the action, the defendants in the court below placed themselves precisely in the situation in which they would have stood had process been served upon them, and consequently waived all objections to the non-service of process.”[68] The Court in Dwight thus allowed a court to exercise jurisdiction over a defendant based on the defendant’s voluntary appearance, despite the lack of in-state service.

Into the mid-1900s, the Court continued to recognize personal jurisdiction by voluntary appearance as a distinct mechanism for exercising personal jurisdiction, separate from jurisdiction by in-state service of process. In York v. Texas, Texas sued in Texas state court for payment on a lease but did not properly serve the defendant.[69] When the defendant appeared to file a special plea challenging personal jurisdiction, the state court overruled the plea on the grounds that Texas had no special-plea procedure and that the defendant had submitted to the court’s jurisdiction by voluntarily appearing.[70] The Supreme Court upheld the state court’s assertion of jurisdiction by voluntary appearance as consistent with due process.[71] And in Adam v. Saenger,[72] the Court held that a plaintiff, “by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court” for the purposes of a counterclaim asserted against the plaintiff by the defendant.[73] Notably, not one of these three cases cast jurisdiction by voluntary appearance as a form of “consent” to personal jurisdiction.

Before the founding, and for about 150 years after, nonresidents could submit themselves to the personal jurisdiction of a court via voluntary appearance, regardless of the form or type of service of process. Parties could also consent to appointment of an in-state agent for service of process, which then could lead to personal jurisdiction through proper service upon that in-state agent. Consent was not seen as a basis for establishing personal jurisdiction directly. Rather, consent established a predicate condition for jurisdiction by in-state service.[74]

B.     The Incorporation of Consent to Jurisdiction

Since 1939, the Court has reconceptualized consent to jurisdiction in two ways. First, it has recast consent to agent appointment as consent to suit. Second, it has expanded voluntary appearance into new circumstances by employing terms like waiver and constructive consent.

1.     Consent to Agent Appointment and “Consent to Suit”

The entanglement of consent to agent appointment with consent to suit began with the federal diversity case Neirbo Co. v. Bethlehem Shipbuilding Corp.[75] There, the Court relied on Schollenberger to hold that federal venue could be established through compliance with a state business-registration statute that required appointment of an in-state agent for service of process.[76] Although Schollenberger speaks only to consent to appointment of an agent for service of process and disavows consent to personal jurisdiction directly,[77] Neirbo rephrases that consent as “consent to suit”:

That service upon such an agent, in conformity with a valid state statute, constituted consent to be sued in the federal court and thereby supplanted the immunity as to venue, was the rationale of Schollenberger’s case . . . . [The defendants] were “found” in the Eastern District of Pennsylvania only in a metaphorical sense, because they had consented to be sued there by complying with the Pennsylvania law for designating an agent to accept service . . . . Since the corporation had consented to be sued in the courts of the state, this Court held that the consent extended to the federal courts sitting in that state.[78]

Neirbo thus spawned an ambiguity as to whether the defendant consented to a predicate to personal jurisdiction by service or whether the defendant consented to personal jurisdiction directly.[79]

This ambiguity was entrenched in International Shoe Co. v. Washington,[80] which recharacterized French and St. Claire as “holding the corporation amenable to suit . . . by resort to the legal fiction that it had given its consent to service and suit.”[81] Like Neirbo, International Shoe blended consent to conditions of service with consent to suit.

2.     Voluntary Appearance, Waiver, and “Constructive Consent”

Meanwhile, the Court was expanding the concept of voluntary appearance into the realm of waiver. In the federal diversity case, Petrowski v. Hawkeye-Security Insurance Co.,[82] a defendant unsuccessfully moved to dismiss for lack of personal jurisdiction because the state business-registration statute—which authorized substituted service on the state insurance commissioner in certain cases—did not apply. The defendant asserted this defense in its answer but then executed a stipulation to “voluntarily submit[] to the jurisdiction of the above entitled Court without service of process here, the same as if personal service had been obtained.”[83] Judgment was entered against the defendant, the court of appeals reversed on jurisdictional grounds, and the Supreme Court unanimously reversed, reasoning that the defendant, “by its stipulation, waived any right to assert a lack of personal jurisdiction over it.”[84] Petrowski gave no indication how waiver by stipulation would fit within personal jurisdiction’s traditional notions of voluntary appearance or in-state service.

The federal diversity case National Equipment Rental, Ltd. v. Szukhent incorporated new consent-based terminology and circumstances.[85] There, Szukhent leased farm equipment from a company; the lease, which was drafted by the company, stated that “[l]essee hereby designates Florence Weinberg . . . as agent for the purpose of accepting service of any process within the State of New York.”[86] Florence Weinberg was an agent of the company, not of Szukhent; Szukhent had never met her. When Szukhent failed to make payments, the company served process on Florence, who then duly sent the papers to Szukhent. Szukhent moved to quash service, which the district court granted and the court of appeals affirmed.[87] The Supreme Court reversed, holding Rule 4 to allow “a party to a private contract [to] appoint an agent to receive service of process . . . where the agent is not personally known to the party, and where the agent has not expressly undertaken to transmit notice to the party.”[88] Importantly, the Court did not decide any issues of personal jurisdiction; the issue was solely about the propriety of the appointment of Florence as an agent for service of process. Nevertheless, in dictum, and citing only to circuit and state courts for support, the Court made the following widely quoted assertion: “[P]arties to a contract may agree in advance to submit to the jurisdiction of a given court.”[89]

In Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,[90] the Court used Adam, Petrowski, and the dictum from Szukhent to hold personal jurisdiction subject to principles of estoppel. In federal diversity court, a U.S. company sued its foreign insurers, who asserted a lack of personal jurisdiction.[91] During jurisdictional discovery, the insurers refused to comply with court orders to answer discovery requests relevant to the question of personal jurisdiction. The district court, as a sanction under Rule 37, assumed that the withheld discovery contained facts that would establish personal jurisdiction.[92]

The Supreme Court upheld that ruling, reasoning that personal jurisdiction was “an individual right, it can, like other such rights, be waived . . . regardless of the power of a state to serve process.”[93] This statement was hardly obvious. Previous references to waiver applied not to the due process right directly but rather to the procedural ability to assert the right as a challenge to a court’s exercise of personal jurisdiction.[94]

The Court stated the longstanding truism that “an individual may submit to the jurisdiction of the court by appearance” but then suggested that “[a] variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court.”[95] In reaching this conclusion, the Court reviewed several examples of consent: consent by contracting in advance to submit to jurisdiction (citing Szukhent’s dictum); consent by post-objection stipulation to submit to jurisdiction (citing Petrowski); and “constructive consent” by voluntarily using court procedures (citing Adam).[96] The Court also noted the ability to waive the defense under Rule 12(h).[97] “The actions of the defendant,” the Court summarized, “may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.”[98] To this list, the Court added a new variation: estopping the defendant from contesting personal jurisdiction as a Rule 37 sanction for failure to comply with fact discovery on the question of personal jurisdiction.[99] As the Court put it, “the sanction is nothing more than . . . the finding of a constructive waiver.”[100]

Petrowski, Szukhent, and Insurance Corp. dramatically expanded the notion of voluntary appearance and, for the first time, equated that historical basis for personal jurisdiction with more flexible notions of consent—including waiver and constructive consent.

C.     Mallory

Mallory is the culmination of the Court’s historical entangling of personal jurisdiction and consent. In Mallory, a mechanic working for Norfolk Southern Railway in Ohio and Virginia was exposed to asbestos on the job.[101] He retired, moved to Pennsylvania, and was diagnosed with cancer. After moving back to Virginia, he sued Norfolk Southern in Pennsylvania state court under the Federal Employers’ Liability Act.[102] Norfolk Southern moved to dismiss for lack of personal jurisdiction,[103] arguing that it did not have sufficient “minimum contacts” with Pennsylvania to satisfy either general or specific personal jurisdiction under International Shoe.[104] The Pennsylvania Supreme Court agreed and ordered Mallory’s suit dismissed.[105]

The Supreme Court reversed, finding that the Pennsylvania state court had personal jurisdiction. Although not within a single opinion, five Justices agreed that consent was a method of establishing personal jurisdiction independent of International Shoe’s contacts-based test.[106] Those five Justices also agreed that Norfolk Southern directly consented to general personal jurisdiction in Pennsylvania by complying with the state’s unique business-registration statute,[107] which provided that state courts could exercise general personal jurisdiction over a registered out-of-state corporation.[108] And, relying on Pennsylvania Fire, the majority concluded that Pennsylvania’s statute, authorizing personal jurisdiction under these circumstances, did not violate the Due Process Clause.[109]

The railroad argued that it never expressly consented to personal jurisdiction, despite its compliance with Pennsylvania’s statute and its knowledge of the statute’s attendant “jurisdictional consequences.”[110] Justice Gorsuch dismissed this formalist argument as inconsistent with “a legion of precedents that attach jurisdictional consequences to what some might dismiss as mere formalities,” such as jurisdiction by in-state service, jurisdictional estoppel, forum selection clauses, and procedural waiver of the defense.[111] Each of these was, according to Justice Gorsuch, “‘express or implied consent’ . . . manifested in various ways by word or deed” that “‘amount[ed] to a legal submission to the jurisdiction of a court.’”[112] Mallory thus endorses a notion of direct consent to personal jurisdiction that blends the consent-to-agent-appointment cases and the voluntary-appearance cases.

II. Complexities of Consent

Against the backdrop of the historical treatment of consent in personal jurisdiction doctrine, Mallory’s conclusion that Norfolk Southern consented to personal jurisdiction through compliance with Pennsylvania’s business-registration statute oversimplifies consent along several dimensions.

First, the business-registration precedent, upon which Mallory relied, focused on consent to service, not consent to personal jurisdiction directly. As the history reviewed shows, these two forms of establishing personal jurisdiction differ. Second, Mallory’s invocation of consent as a vehicle for establishing personal jurisdiction, along with its discussion of Insurance Corp., conflates the different concepts, effects, and establishment of consent, waiver, and forfeiture. Third, Mallory fails to recognize the distinction between true ex ante consent that is effective prior to suit and an ex ante promise to consent when future litigation is initiated. Fourth, Mallory’s discussion of consent to personal jurisdiction entangles the constitutional and subconstitutional components of personal jurisdiction without acknowledging that consent could go to one component but not the other. Fifth, Mallory’s facile phrasing of consent obscures the intricate interdependency of federal court personal jurisdiction on state court personal jurisdiction. Part II explores these complexities in turn.

A.     Consent to Jurisdiction vs. Consent to Conditions of Service

Mallory blurs the distinction between consent to service and consent to personal jurisdiction. Mallory fixates on consent to jurisdiction for good reason: The Pennsylvania business-registration statute deemed registration to be a direct consent to general personal jurisdiction.[113] Unlike all other states’ business-registration statutes, the Pennsylvania statute made consent to personal jurisdiction independent of any particular form of service of process.[114] For that reason, not a single judicial opinion or party brief, at any stage of the litigation or appeal, indicated how the railroad was served. It is likely that the railroad was not served in Pennsylvania at all.[115] Personal jurisdiction was based solely on direct consent to personal jurisdiction, irrespective of method or location of service.[116]

In upholding personal jurisdiction in Pennsylvania based on consent by registration, the Court relied on precedent, especially Pennsylvania Fire, to reaffirm that business-registration statutes comply with due process.[117] But, crucially, none of the registration statutes in the precedent cited by the Court required consent to personal jurisdiction directly. Rather, every single one required consent to appointment of an agent for purposes of subsequent in-state service of process.[118]

Mallory glosses over this distinction, recharacterizing the consent-to-service cases to bring them closer to direct consent to jurisdiction. Justice Gorsuch’s plurality opinion framed the business-registration statutes of yore as extracting “consent to in-state suits.”[119] And it described the small subset of state statutes that did not confine the type of lawsuit to activities related to the forum state as embodying an “all-purpose-jurisdiction rule.”[120] Justice Gorsuch, in the section of his opinion garnering a majority, treated Pennsylvania Fire as a case about “consent to suit.”[121] These characterizations of the agent-consent statutes would, if accurate, help create a link to the “direct consent” language in the Pennsylvania statute.[122]

But, as shown in Part I, agent-consent statutes were not, at the time of Pennsylvania Fire, the same as consent to suit. All the business-registration cases involved consent to some predicate aspect of in-state service, which then led to personal jurisdiction through compliance with that specified form of in-state service. None of these cases held—before or after Pennsylvania Fire—that business registration could confer personal jurisdiction without valid in-state service. Yet the Pennsylvania statutory regime equates registration to general personal jurisdiction regardless of the location, type, or validity of service. As the parties and courts involved in the Mallory litigation recognized, service was irrelevant to Pennsylvania’s assertion of jurisdiction.

Because Mallory is a consent-to-jurisdiction case and not a consent-to-service case, Pennsylvania Fire—the consent-to-service case relied upon by the majority in Mallory—is, at least without more explanation, inapposite. Instead, Mallory should have been analyzed under a theory of direct consent to jurisdiction, making Mallory a much more difficult link to precedent than the Justices made it out to be.

B.     Consent vs. Waiver vs. Forfeiture

In addition to relying on unsuitable precedent, Mallory treats the types of consent identified in Insurance Corp. and its antecedents as a monolithic concept. Justice Gorsuch’s opinion lumps the railroad’s voluntary compliance with the Pennsylvania statute as analogous to tag jurisdiction, jurisdictional estoppel under Insurance Corp., forum selection clauses in contracts, and waiver of the Rule 12 defense.[123] Each of these was, according to Gorsuch, “‘express or implied consent’ . . . manifested in various ways by word or deed” that “‘amount[s] to a legal submission to the jurisdiction of a court.’”[124] And, for five Justices, the railroad’s compliance with the Pennsylvania statute equated to the railroad’s consent to general jurisdiction as provided by the state statute.[125]

Justice Jackson, in her concurrence, focused more acutely on Insurance Corp. in her effort to ground personal jurisdiction over the railroad in notions of consent—or, in her terminology, waiver.[126] Citing Insurance Corp., she reasoned that the due process basis for personal jurisdiction is “an individual, waivable right,” that “[w]aiver is thus a critical feature of the personal-jurisdiction analysis,” and that “there is more than one way to waive personal-jurisdiction rights.”[127] According to Jackson, “[a] defendant can waive its rights by explicitly or implicitly consenting to litigate future disputes in a particular State’s courts” or by “fail[ing] to follow specific procedural rules,”[128] but whether waiver is “express[] or constructive[], the basic teaching of Insurance Corp. of Ireland is the same: When a defendant chooses to engage in behavior that ‘amounts 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.”[129] In light of these precepts, she concluded “that Norfolk Southern waived its personal-jurisdiction rights here.”[130]

Mallory firmly endorses the principle that personal jurisdiction can be waived or consented to directly. But that general principle masks at least two significant complexities. First, it elides the differences between consent, waiver, and, as I explain, forfeiture. Second, it obscures how difficult characterizing specific circumstances as consent, waiver, or forfeiture can be when the categories depend upon one’s conceptualization of the circumstances. I discuss both issues below.

1.     Distinguishing Consent, Waiver, and Forfeiture

Mallory’s conflation of consent and waiver elides their formal and functional distinctions. To be fair, Mallory is not anomalous. As many scholars recognize, “[s]ince the early nineteenth century, judges have used both the terms ‘waiver’ and ‘consent’ to describe the phenomenon of party agreement to jurisdiction.”[131] The Supreme Court itself has fallen prey. In Neirbo, Justice Frankfurter wrote for the Court: “Whether such surrender of a personal immunity be conceived negatively as a waiver or positively as a consent to be sued, is merely an expression of literary preference.”[132]

But these concepts, as used both in the realm of personal jurisdiction and in other doctrinal contexts, have formal distinctions with different functional effects.[133] Further, both courts and commentators discussing personal jurisdiction tend to ignore a third distinct concept: forfeiture.[134]

My own preliminary view sets out formal distinctions in the context of personal jurisdiction as follows: Consent is a voluntary submission to jurisdiction; waiver is the implied or express relinquishment of the substantive defense of lack of personal jurisdiction; and forfeiture is the loss of the procedural ability to invoke the defense.[135]

These formal distinctions matter because they have significantly different functional effects. Consent actually expands the scope of a court’s personal jurisdiction over a defendant by giving that court personal jurisdiction that it previously lacked.[136] If a defendant who consents to personal jurisdiction nevertheless raises the defense of lack of personal jurisdiction and moves to dismiss the case, a court should deny the motion on its merits because the court in fact has personal jurisdiction by virtue of consent.

Waiver, by contrast, does not expand the scope of personal jurisdiction. Instead, it extinguishes the legal availability of the defense of lack of personal jurisdiction. If a defendant who waives the defense nevertheless asserts the defense by way of answer or Rule 12 motion, the court should strike the defense or motion not because the court lacks personal jurisdiction but because the defense is not legally available. The procedural effects of consent and waiver are not particularly distinctive, but the substantive effects are quite important: Consent can give the court jurisdiction, while waiver cannot. That effect has significance for federal court personal jurisdiction under Rule 4, as I explain in more detail below.[137]

Forfeiture neither expands the scope of personal jurisdiction nor extinguishes the defense but instead procedurally disables the defendant from raising the defense. A forfeited defense, however, remains legally available and could be raised by the court sua sponte.[138] Normally, a court would not override forfeiture for reasons of party autonomy.[139] But override might be warranted if personal jurisdiction’s structural values of horizontal federalism are so strongly implicated in a particular case that they ought not be left to the whims of party choice.[140]

2.     Categorizing Factual Circumstances

Categorizing various factual circumstances as consent, waiver, or forfeiture is tricky business. One attempt might look as follows.

Consent includes a contemporaneous voluntary appearance in a specific case.[141] Dwight, York, Adam, and Petrowski all fall within this category. Even though none use the term “consent,” the conduct in those cases was a voluntary appearance equating to a submission to the jurisdiction of the court.[142]

Waiver includes Rule 12(h), which states that a party waives the defense of lack of personal jurisdiction by omitting it from a pre-answer motion or failing to include it in the answer.[143]

Forfeiture includes post-answer conduct that, despite initial preservation of the defense in the answer, prevents a defendant from using that defense as a basis for prevailing in the litigation.[144] Courts often characterize this kind of forfeiture as a waiver of the defense,[145] but nothing in the doctrine or the rules specifies that the defense can be waived in this way despite proper initial preservation. The proper categorization, it seems to me, is forfeiture of the procedural ability to ask the court to adjudicate the defense. Of course, because the denial of a pre-answer motion to dismiss for lack of personal jurisdiction leaves no further recourse in that court for prevailing on the defense, vigorous post-motion defense on the merits should not be construed as forfeiture.[146] By contrast, the failure to appeal the denial of the motion should be characterized as a forfeiture of the defense on remand.

This framework excludes two other personal jurisdiction matters. The consent-to-service cases—such as the business-registration cases prior to Mallory[147] and the agent designation by private contract in Szukhent[148]—fall entirely outside the consent-to-jurisdiction framework. They instead fall within a different basis for personal jurisdiction: in-state service. Consent is relevant to those cases not as a direct basis for personal jurisdiction but only as to the appointment of an agent for the purposes of in-state service. The regulation-of-proof case, Insurance Corp., also falls outside the direct-consent framework. Insurance Corp. held that the failure to engage in good-faith discovery on the jurisdictional issue allows the court to presume a factual basis for finding that it actually has personal jurisdiction via minimum contacts.[149] Neither service-based jurisdiction nor Insurance Corp. fits within the consent-based framework.

My preliminary attempt to set out a principled categorization of consent is open to debate.[150] For example, the failure to properly raise the personal jurisdiction defense under Rule 12 could be viewed not as a waiver of the underlying defense but as either a de facto voluntary submission of the party to the jurisdiction of the court or as a forfeiture of the procedural ability to raise the defense.[151] As another example, Adam could be viewed not as consent by voluntary submission but as conduct-based waiver of the defense.[152] My point here is not to rigorously defend a particular framework but to show how complicated and undertheorized the consent-to-jurisdiction idea is.[153]

C.     Ex Ante Implications

Mallory is based on ex ante consent to personal jurisdiction in future litigation, which presents a host of additional complexities. Unlike consent by voluntary appearance, which involves consent in specific, contemporaneous litigation, Mallory is akin to forum selection clauses in pre-litigation agreements, with some distinctions explored below.

The first complexity is determining what the act of consent is. The act of entering into a contract or registering a business either amounts to immediate consent to jurisdiction in a future case (what I call true ex ante consent) or amounts to a promise to voluntarily submit or waive the defense in the future through legally prescribed litigation mechanisms. Each possibility has its own labyrinth lurking beneath.

1.     True Ex Ante Consent

True ex ante consent is when the act of agreement (in the context of a forum-selection clause) or statutory compliance (in the context of a registration statute) itself amounts to immediate consent to personal jurisdiction in a future case. Mallory interpreted the consent extracted by the Pennsylvania business-registration statute in this way,[154] and many lower courts have interpreted contractual consents similarly,[155] reasoning that there is no difference between consent by voluntary appearance and ex ante consent.[156]

Examining true ex ante consent reveals various questions, including about its grounding in precedent, the validity of consent, its effect on interactions between state and federal law, and the ability to retract consent. As for precedent, Mallory is the first Supreme Court case to find direct ex ante consent to personal jurisdiction. All other direct-consent cases pertained to contemporaneous action in a specific, existing case.[157] And although the agent-consent cases and contractual venue-consent cases supply some analogous support for ex ante consent generally,[158] neither line of cases addressed ex ante consent to personal jurisdiction directly.

Ex ante consent also presents the question of how to determine the validity of consent. For instance, should consent depend on whether the contract is valid or whether the consent extracting statute is constitutional? In my view, the answer is neither. Consider a statement posted on a public website that proclaims: “This company hereby consents to the general personal jurisdiction of Pennsylvania state courts.” This statement is a consent to jurisdiction whether posted unilaterally and without consideration, posted in return for state permission to do business, or posted as consideration for contractual benefits.

True ex ante consent, therefore, is dependent solely on the party’s understanding that it was granting consent at the time. It is not dependent upon the validity of the contract or any subsequent breach of the contract by the other signatory. After all, a unilateral statement should satisfy consent even though, in contract terms, it is an unenforceable illusory promise. Nor is consent dependent upon the validity or constitutionality of the statute purporting to extract it. A statute might be unconstitutional for any number of reasons, including that it attempts to extract consent in violation of due process or that it violates the Dormant Commerce Clause,[159] but that invalidity does not retroactively negate a party’s intent to consent to personal jurisdiction.

The Court said otherwise in Southern Pacific Co. v. Denton,[160] which held that the invalidity of a business-registration statute negated any agreement or action that the corporation made in obedience to its provisions.[161] Scholars have also argued that contractual ex ante consent “may be vitiated by resort to traditional contract doctrines such as fraud, undue influence, or overweening bargaining power or mistake, public policy, and unconscionability.”[162] But for true ex ante consent, these positions seem wrong. The invalidity of the contract or statute may prevent its enforcement against the party if the party decides to retract its consent, a decision explored in more depth below. But the invalidity or unenforceability of the contract or statute does not itself retroactively negate a party’s true ex ante consent to jurisdiction.

For similar reasons, the actual meaning of the statute is irrelevant. One commentator writes that “a State must first have required a corporation to consent to general jurisdiction when it registers to do business. In other words, there is an antecedent state-law question of whether a State’s registration statute requires consent to registration in the first place.”[163] Another commentator observes: “If the statute was not intended to assert general jurisdiction or, stated differently, it was not intended to extract a consent to general jurisdiction by registering, then the matter is at an end.”[164] But that is not quite right. True ex ante consent depends upon not what the state intended but how the party understood the statutory condition. Of course, parties are likely to understand a state’s statutory condition in harmony with how the state’s highest court has previously construed it.[165] But an authoritative construction that comes after registration cannot unilaterally and retroactively negate the party’s antecedent understanding of its own consent.[166]

The detachment of ex-ante consent from the meaning or validity of state law would be consistent with how federal law defines the scope of constitutional rights. Federal law, not state law, prescribes when a party has consented to personal jurisdiction under the Fourteenth Amendment.[167] State law cannot contradict the meaning of the Due Process Clause. For example, a state law proclaiming the following would be unconstitutional: “Corporations that incorporate in this state shall not be deemed to be at home in this state for purposes of the scope of this state’s courts’ personal jurisdiction under the Fourteenth Amendment.” Similarly, state law cannot define the meaning of consent to personal jurisdiction under the Fourteenth Amendment. State law is relevant to understanding what the party intended at the time, but federal law determines whether the party’s conduct amounts to consent.[168] And if federal law defines consent to include an ex ante intentional submission to a court’s jurisdiction, then state law cannot define it differently.

A final problem with true ex ante consent is whether—and how—that consent can be retracted. Consent or waiver made in the context of a specific, ongoing case cannot be retracted and remains effective for the entirety of the case.[169] By the same logic, consent given ex ante that persists until the assertion of personal jurisdiction by a specific court in particular litigation cannot then be withdrawn. But whether consent given ex ante can be withdrawn or retracted any time prior to a court’s exercise of personal jurisdiction has never been tested. Some courts have assumed that, in consent-to-service cases, a nonresident corporation could withdraw its consent to the appointment of the in-state agent under certain conditions.[170] However, whether and how a party can effectively retract direct ex ante consent to personal jurisdiction remains a mystery.

2.     A Promise to Consent

Rather than construing a party’s conduct under a contract or state statute as immediate and true ex ante consent, the party could be only promising to consent or waive in a future case by case-specific methods, such as voluntary appearance or defense waiver.[171] In Professor David H. Taylor’s view, “[i]t is the act of submitting,” rather than the contract itself, “that provides the basis for personal jurisdiction.”[172] However, this understanding of a promise to consent runs into its own problems.

One problem is enforceability. A unilateral statement of consent is an illusory, unenforceable promise, at least absent reliance, and private contracts, even if enforceable, default to damages, not specific performance.[173] To the extent specific performance is available, would the enforcement request be instituted through a breach-of-contract claim joined with the main claim? If so, would the court have personal jurisdiction over the defendant with respect to the breach-of-contract claim?[174] For business-registration statutes and other state extractions of consent, a defendant that breaks its promise to submit may be subject to the state’s vengeance. The state could withdraw permission to do business in the state or possibly seek other recourse against the defendant. But in each case, the fact that the promise is made neither gives consent nor prevents the defendant from breaking the promise by, say, properly preserving the defense. Perhaps a state could deny breachers the opportunity to make a special appearance,[175] but a state likely could not compel a voluntary appearance.

Another problem is privity, so far as enforcement through specific performance is available. In a bilateral private contract, only the signatories and other parties allowed by law should be able to seek enforcement of the contract, and that signatory prerogative could itself be waived or forfeited.[176] If a consent-extraction statute is seen as a “transaction between the defendant and the state,”[177] only the state should be able to insist on compliance. In these circumstances, the state and the plaintiff could be at odds on whether to enforce the defendant’s promise.

D.    Constitutional vs. Statutory Jurisdiction

That personal jurisdiction is set by both constitutional and statutory authority exacerbates the complexity of consent. Every assertion of personal jurisdiction must comply with two levels of legal restrictions. The first is the U.S. Constitution. Federal law, not state law, defines the scope and applicability of consent with respect to the compatibility of the exercise of personal jurisdiction and due process. But the second level of restrictions is based on other laws, including state constitutional law, state statutory law, and state rules.[178] These state laws may authorize state courts to exercise personal jurisdiction to the full reach of the Fourteenth Amendment, or they may grant less personal jurisdiction than what the Fourteenth Amendment would allow.[179] State prerogatives over state law apply to consent under state law. States are free to define consent and the conditions under which it confers personal jurisdiction under state law.

Injecting consent into this dual-scope regime can create conundrums of horizontal federalism. Say, for example, a Texas corporation decides to incorporate in Texas because of its favorable tax laws but would prefer to litigate disputes in Delaware because of its favorable court procedures. Accordingly, the corporation enters into agreements “consenting to personal jurisdiction in Delaware” and selecting Delaware as the exclusive forum for any lawsuit.[180] But say Delaware dislikes the idea of being outsourced to supply costly court services without attracting businesses to incorporate in the state,[181] so it passes a law preventing its state courts from exercising personal jurisdiction via consent.[182] In that instance, the corporation’s consent would be effective for purposes of federal constraints on personal jurisdiction and thus allow Delaware courts to exercise personal jurisdiction under the Fourteenth Amendment. But the corporation’s consent would not be effective to overcome the state law barring Delaware courts from exercising jurisdiction by consent. Delaware could force the parties to litigate in Texas despite their consent to litigate exclusively in Delaware.

Federal courts have the same dual-scope regime. The Fifth Amendment’s Due Process Clause sets the constitutional limit for federal court personal jurisdiction, which is understood as having national scope.[183] Congress can provide for narrower statutory or rule-based restrictions,[184] and, today, Rule 4(k) by default sets the exercise of federal court personal jurisdiction at the scope of state court personal jurisdiction.[185] Statutes and rules can entirely control how consent plays out for those subconstitutional limits on personal jurisdiction.[186] Rule 4(k) could, for example, be made non-waivable and non-consentable. And to the extent Congress and the rule-makers use territorial limits to allocate cases among federal courts for structural and systemic reasons, as opposed to protecting fairness values for the parties,[187] those limits arguably should be non-waivable and non-consentable.[188] The dual-level nature of personal jurisdiction complicates when federal law deems consent to be valid and to which aspects of jurisdictional doctrine consent applies.

E.     State vs. Federal Personal Jurisdiction

Personal jurisdiction in federal court adds another layer of complexity because it incorporates state limits on personal jurisdiction. For most cases, Rule 4(k)(1) states that “[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”[189] In other words, the exercise of service-based federal court personal jurisdiction is conditioned on the defendant being “subject to” personal jurisdiction in state court. Federal law’s incorporation of state law raises issues of how consent operates within those two sets of laws.

To illustrate some of the complexities of this regime, consider a foreign defendant residing abroad who is sued in the Eastern District of Pennsylvania. This defendant is validly served abroad but lacks minimum contacts with either Pennsylvania or the United States as a whole. Say also the defendant is considering consenting to Pennsylvania state court jurisdiction only, consenting to federal court personal jurisdiction only, consenting to both, or consenting to neither. Table 1 below displays the possible range of consents and their effects on the district court’s personal jurisdiction:

Table 1. Consent to State or Federal Personal Jurisdiction

	Consent to PA State PJ	Consent to Federal Court PJ	Result in E.D. Pa.
Hypo 1 (state only)	Yes	No	Unclear
Hypo 2 (federal only)	No	Yes	Unclear
Hypo 3 (both)	Yes	Yes	PJ
Hypo 4 (neither)	No	No	No PJ

  Hypo 4 (neither) is straightforward: No basis for personal jurisdiction exists when a party, not otherwise subject to state or federal personal jurisdiction, consents to neither. Hypo 3 (both) also is straightforward: Because consent expands the scope of both state and federal personal jurisdiction to cover the defendant, the federal court needs only proper service to establish personal jurisdiction.[190]

Hypo 1 (state only), however, is trickier. In Hypo 1, Rule 4(k)(1) purports to establish personal jurisdiction in federal court because the defendant is “subject to” the personal jurisdiction of the state court via the defendant’s state court consent. But the Fifth Amendment would not be satisfied because the defendant does not have sufficient minimum contacts with the United States and has not consented to personal jurisdiction in the federal court. If consent to personal jurisdiction under the Fourteenth Amendment is independent from consent to personal jurisdiction under the Fifth Amendment, then Pennsylvania state courts would have personal jurisdiction over the defendant, but Pennsylvania federal courts would not.

As recounted above, the Supreme Court in Neirbo said otherwise: Consent to be sued in state court “extend[s]” to federal courts in the same state.[191] But why that should be the case is unclear. Neirbo is based on consent to the appointment of an in-state agent for service-based jurisdiction. Thus, Neirbo might construe appointment of an in-state agent as a satisfactory predicate for both state court and federal court personal jurisdiction. Or perhaps the Constitution makes consent to the Fourteenth Amendment an automatic basis for extending federal court personal jurisdiction too, whether by notions of consent or International Shoe standards of “fair play and substantial justice.” In short, the effect of state-court-only consent remains unclear.

Hypo 2 (federal only), the reversal of Hypo 1 (state only), is just as complicated. The federal court has constitutional personal jurisdiction under the Fifth Amendment based on consent, but service is ineffective to establish personal jurisdiction in federal court under Rule 4(k)(1) because the state court would lack personal jurisdiction.[192] Rule 4(k)(2) would make service effective to establish federal court personal jurisdiction for a claim under federal law.[193] But if the claim does not arise under federal law, then the defendant’s consent to personal jurisdiction in federal court cannot be honored because Rule 4(k)(1) does not allow the federal court to exercise the personal jurisdiction the defendant has consented to. Some extension of the defendant’s federal court consent to state court, like a reverse-Neirbo, would then allow the federal court to exercise personal jurisdiction. However, such an extension, while honoring the defendant’s federal court consent, would transgress the limits the defendant has imposed on that consent by extending it to state court.[194]

These hypotheticals do not even engage the predicate question of how to construe a defendant’s consent. Consider a foreign corporation who registers to do business under the Pennsylvania statute at issue in Mallory, which asserted that Pennsylvania state courts shall have “general personal jurisdiction” over registrants.[195] If compliance with the statute equates to consent just to state court personal jurisdiction, then Hypo 1 (state court only) applies, but if compliance equates to consent to both state court and federal court jurisdiction, then Hypo 3 (both) applies. Whether the consent extracted by the state statute also applies to federal court will depend upon federal law, which governs the scope and effect of consent to personal jurisdiction under the Fifth Amendment.

To go a step deeper into the mud, consider a Texas company registered to do business in Michigan and sued in Michigan federal court. Assume that the Michigan business-registration statute states that registrants waive defenses to state court personal jurisdiction. Because waiver—unlike consent—does not expand the scope of personal jurisdiction, the company, though waiving the personal jurisdiction defense in state court, is not in fact “subject to the jurisdiction” of Michigan state courts.[196] Therefore, service of a federal court summons on the Texas company does not establish personal jurisdiction in federal court under Rule 4(k). Under these circumstances, the company can be sued in Michigan state court but not Michigan federal court.

III. Theorizing Consent

Highlighting these complexities of consent to personal jurisdiction leads to several considerations for the doctrine’s future. First, consent’s monolithic status should be rejected, and its complexities should be embraced for what they are. Second, coping with those complexities requires careful development of consent doctrine. History is less important to that task than existing doctrine, which could supply resources from unlikely sources—like International Shoe.

A.     Rejecting Consent as Monolithic

The first step is to reject consent as a simple, undifferentiated concept. However, Mallory veers in the wrong direction. By endorsing direct ex ante consent to jurisdiction and blending it with waiver and consent to in-state service, Mallory will likely encourage the development of consent doctrine as an undifferentiated concept. Mallory has already influenced state and lower federal courts. Some courts have cited to Mallory when conflating disparate consent-related issues.[197] No doubt a slew of academic papers likewise will scamper ahead under the shadow of consent as a monolithic concept.

The Court’s repeated exhortations that jurisdictional rules should be clear and simple promote a false sense of doctrinal simplicity.[198] In that spirit, the Court has justified its narrowing of general personal jurisdiction under International Shoe on the ground that the doctrine would allow for one clear and predictable forum to sue the defendant.[199] Even in the realm of personal jurisdiction, the quest for simplification is a powerful siren’s song.

However, vigilance is crucial, lest “consent” lose its meaning. The Supreme Court has had to walk back similar careless uses of terms in jurisdictional doctrine—including careless uses of its own[200]—which has required it to use a significant chunk of its merits docket to impress upon lower courts the importance of adopting a disciplined approach attuned to nuance.[201] Mallory can and should be read narrowly to avoid this fate: Compliance with the unique Pennsylvania registration statute at hand, in the same manner as Norfolk Southern complied, allows Pennsylvania state courts to assert general personal jurisdiction over the registrant, even without the minimum contacts prescribed by International Shoe.[202]

A narrow reading of Mallory opens unrestricted space for a more fulsome examination of consent’s rocky landscape in other contexts. Courts asked to apply, and commentators seeking to develop, broader theories of jurisdictional consent should meticulously attend to its various metes and bounds.[203] Otherwise, the complexities of consent risk leaving cracks in the foundation of personal jurisdiction doctrine, rendering it infirm and likely to crumble over time.

B.     Toward a Theory of Polylithic Consent

Developing a theory of consent to jurisdiction that fully accounts for all its complexities is more honest, more useful for courts and litigants, and more enduring for the doctrine. It will not, however, be an easy task. To clear the way, I offer some general guideposts. The first is to avoid the history of consent, which has served to muddle rather than clarify. The second is to look to existing doctrine for guidance—especially notions of fairness under International Shoe. The third is to find analogous lines of doctrine, including other constitutional doctrines of consent. And the fourth is to appreciate the limits that the Constitution places on the scope of consent.

1.     History

First, the history of personal jurisdiction, and especially the pre-Shoe precedent, is too frail to support a comprehensive theory of modern consent doctrine. One commentator has written: “In the Pennoyer era, consent was viewed as a valid basis for a state to obtain personal jurisdiction, and this view did not change after International Shoe.”[204] Mallory essentially endorses that perspective.[205] But, as I have shown, that story is not quite right. Pennoyer-era consent, to the extent it was manifested through voluntary appearance and was grounded in notions of physical presence and territorial power, is not the same as post-International Shoe variations of consent founded on due process rights and fairness.[206]

Nor do accepted forms of modern consent, like private prelitigation agreements, fit comfortably within traditional paradigms. Mallory isn’t Burnham, which recognized a long and consistent history of in-state service of process to establish transient or “tag” jurisdiction over the defendant.[207] History and precedent help justify isolated bases for personal jurisdiction—namely, voluntary appearance and consent to in-state service—but not a comprehensive doctrine for all facets of consent to jurisdiction.[208]

2.     Fairness

Second, International Shoe’s endorsement of “notions of fair play and substantial justice” may very well be, contrary to the thrust of Mallory, highly relevant to developing a theory of consent.[209] That is not to endorse the Mallory dissent’s position that International Shoe’s minimum contacts tests have displaced jurisdiction by consent.[210] But it is possible to conceive of a broad theory of consent to personal jurisdiction through the principle of “fair play and substantial justice.” Consent, waiver, forfeiture, and even ex ante conduct can fit comfortably within that principle, which has sufficient flexibility to appreciate and accommodate their differences.

Fair play gives weight to Professor Oscar Chase’s observation that “[c]orporations have agency,” in that “[t]hey can and do decide whether or not to conduct business in a particular forum because of various legal disadvantages.”[211] Fairness helps justify the jurisdictional consequences that follow free choice.[212] For example, the Court has upheld forum selection clauses in private contracts, thereby attending to assumptions of free choice and agency.[213] Fairness might also counsel limitations on consent in circumstances of disparate bargaining power, when choice is less free.[214] Evaluation of choice and agency can draw upon principles of fairness and justice.[215]

At the same time, fair choice can only stretch so far. Adam-type consent of plaintiffs to the jurisdiction of the court where they elect to pursue their claims is not much of a fairness stretch.[216] Consider a plaintiff who files a California state court case that is nonremovable at the time and only has connections to California. Suppose the case unexpectedly develops strong ties to Maine, and it is whisked to Maine federal court through removal and venue transfer despite the plaintiff’s objection. Such circumstances might stretch notions of forum consent, informed by considerations of fairness and justice, too thinly.[217] In short, International Shoe’s notions of “fair play and substantial justice” may contribute to a sensible development of consent to jurisdiction.[218]

3.     Doctrine

Third, reliance on the principle of “fair play and substantial justice” need not devolve into “freeform notions of fairness.”[219] Instead, the guiding principle of “fair play and substantial justice” can be tethered to consent and waiver principles already developed in other areas of constitutional rights.[220]

One promising area is the Fourteenth Amendment’s due process right to notice and a hearing prior to deprivation of life, liberty, or property.[221] The Court has offered some guidance on how that notice-and-hearing right can be waived.[222]

In D.H. Overmyer Co. v. Frick Co.,[223] the Court held that a debtor could consent in advance to a judgment without notice and a hearing when the debtor, a sophisticated contractor with fair bargaining power, truly bargained away its due process rights in exchange for substantial consideration.[224] The Court found that the debtor “voluntarily, intelligently, and knowingly waived the rights it otherwise possessed to prejudgment notice and hearing, and that it did so with full awareness of the legal consequences.”[225] The Court cautioned that a different result might arise “where the contract is one of adhesion, where there is great disparity in bargaining power, and where the debtor receives nothing for the cognovit provision.”[226]

Subsequently, in Fuentes v. Shevin,[227] the Court considered whether buyers who signed conditional sales contracts—allowing the sellers to “take back,” “retake,” or “repossess” the merchandise in the event of the buyers’ default—waived their due process rights to notice and a hearing prior to replevin.[228] The Court distinguished Overmyer because the sales “terms were parts of printed form contracts, appearing in relatively small type and unaccompanied by any explanations clarifying their meaning.” [229] The Court also found that “[t]here was no bargaining over contractual terms between the parties who, in any event, were far from equal in bargaining power,” and there was “no showing whatever that the [buyers] were actually aware or made aware of the significance of the fine print now relied upon as a waiver of constitutional rights.”[230] Further, the Court held that the contract terms did not purport to extract a waiver because “[t]he contracts included nothing about the waiver of a prior hearing.”[231] Accordingly, the contracts did not waive any due process rights.[232]

Another source for analogy is the doctrine of state sovereign immunity. The Court occasionally characterizes state sovereign immunity as a jurisdictional doctrine[233] operating as a “personal privilege” that can be waived or consented to.[234] Because of the doctrine’s strong parallels with personal jurisdiction, [235] conditions under which states can waive sovereign immunity or consent to suit may provide helpful analogies for personal jurisdiction.[236]

For example, states can consent to suit as a condition of receiving federal funds under the Spending Clause,[237] an act not unlike a company consenting to personal jurisdiction through a business-registration statute. States can also waive sovereign immunity through litigation conduct that manifests an intent to invoke the court’s jurisdiction,[238] not unlike notions of voluntary appearance and litigation waiver in the personal jurisdiction context.[239] And Professor Jonathan Siegel has argued that sovereign immunity, mirroring personal jurisdiction, is consented to when “a state voluntarily and knowingly agrees to be sued” and is waived when “a state’s actions otherwise eliminate its immunity.”[240]

Whether the analogy to sovereign immunity or to notice-and-hearing rights ultimately proves fruitful under more intensive scrutiny remains to be seen. But efforts in these two related areas offer an opportunity to develop a unified theory of consent to suit that is consistent across doctrines.

4.     Limits

Fourth, limits on consent exist. Justice Barrett rightly raised the concern that consent could swallow limits on state power, especially when those limits serve a systemic interest in the rational allocation of cases among geographic forums.[241] Consent doctrine should develop with due attention to the interstate-federalism interests underlying the doctrine. One way to accommodate those interests is by cataloging circumstances in which they ought to outweigh party preferences. Doing so could ensure that certain manifestations of party preference through notions of consent can be set aside by courts to enforce systemic interests of case allocation.[242]

Another limit should attend to unconstitutional pressures to extract consent akin to the unconstitutional-conditions doctrine. The doctrine “vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.”[243] The Court has applied the doctrine to various rights, including Fifth Amendment just compensation,[244] First Amendment free speech,[245] Fourteenth Amendment equal protection[246] and due process,[247] and even the statutory right to remove a case to federal court.[248] The Court has also applied a version of the doctrine to strike down coercive Spending Clause legislation.[249] The Court has sometimes found unconstitutional conditions when rightsholders are likely to be “especially vulnerable” to coercive actions[250] and sometimes when the benefit to be conferred (or withheld) is so fundamental or essential as to render illusory the choice to forgo the benefit in exchange for the condition.[251] How the unconstitutional-conditions doctrine constrains consent-extraction statutes is an issue noted by courts and commentators[252] and ripe for consideration post-Mallory.

Conclusion

Mallory is a blockbuster opinion that enshrines consent as an independent basis for personal jurisdiction. But without careful attention to the complexities of consent to jurisdiction, Mallory risks oversimplification and may push underdeveloped notions of consent into areas that the doctrine cannot support. In the hands of sophisticated lawyers and lawmakers, zealously looking out for specific interests, Mallory could be a misused and dangerous weapon.

One example on the immediate horizon is the “floating forum-selection clause,” a term coined by Professor John Coyle and Professor Robin Effron.[253] These forum selection clauses do not name a specific jurisdiction but rather leave that determination to some future development or to unilateral party elective.[254] They may select a forum where one party happens to have its headquarters offices, a fact subject to that party’s unilateral determination.[255] They may select a forum in the state of some future, unspecified assignee to the contract.[256] Or, they may select an unspecified state to be specified in the future, without restriction, at the whim of one of the parties.[257] Essentially, one party to these agreements “is consenting to personal jurisdiction in the dark.”[258] The consent-to-jurisdiction doctrine of Mallory is not up to the task of governing sophisticated arrangements like these. It needs to be.

Copyright © 2025 Scott Dodson, James Edgar Hervey Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and Courts, University of California College of the Law, San Francisco. I received helpful feedback on an early draft presented at the 2024 UC Law SF Works-in-Progress Workshop, the 2024 Conflict of Laws Annual Workshop, the 2024 SEALS Annual Conference, the 2024 Berkeley Civil Procedure Workshop, and the 2025 AALS Annual Meeting Section on Conflict of Laws. Thanks specifically to Patrick Borchers, Kevin Clermont, Robin Effron, Allan Erbsen, and others who commented on other early drafts.

           [1].     326 U.S. 310 (1945).

           [2].     Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 733 (1878) (asserting that a nonresident defendant “must be brought within [the state’s] jurisdiction by service of process within the State, or his voluntary appearance”).

           [3].     International Shoe, 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

           [4].     Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8–9 (1984) (distinguishing between controversies “related to . . . a defendant’s contacts with the forum,” or specific jurisdiction, and suits in which “the cause of action does not arise out of or relate to the foreign corporation’s activities in the forum State,” or general jurisdiction).

           [5].     See Daimler AG v. Bauman, 571 U.S. 117, 137–38 (2014) (explaining that “at home” is comparative); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (developing the “at home” test). The narrowing of general jurisdiction appears to have been shaped, in part, by concerns for global compatibility. See Scott Dodson, Personal Jurisdiction in Comparative Context, 68 Am. J. Compar. L. 701, 715–16 (2020) (showing how the “at home” test moves U.S. personal jurisdiction doctrines closer to those in other countries).

           [6].     592 U.S. 351 (2021). For summaries of the cases, see Scott Dodson, Personal Jurisdiction, Comparativism, and Ford, 51 Stetson L. Rev. 187, 188–94 (2022) [hereinafter Dodson, Personal Jurisdiction and Ford]; Scott Dodson, Personal Jurisdiction and Aggregation, 113 Nw. U. L. Rev. 1, 15–28 (2018) [hereinafter Dodson, Personal Jurisdiction and Aggregation].

           [7].     Shaffer v. Heitner, 433 U.S. 186, 204 (1977); see also Dodson, Personal Jurisdiction and Ford, supra note 6, at 187 (stating that Ford “completes the triangulation of specific personal jurisdiction”).

           [8].     600 U.S. 122 (2023).

           [9].     Id. at 138 (Gorsuch, J.) (distinguishing between International Shoe and consenting defendants); id. at 152–53 (Alito, J., concurring) (same).

         [10].     Id. at 135 (“Norfolk Southern has agreed to be found in Pennsylvania and answer any suit there for more than 20 years.”).

         [11].     Id. at 134. Pennsylvania law provides that an out-of-state corporation “may not do business in this Commonwealth until it registers” to do so. 15 Pa. Cons. Stat. § 411(a) (2015). Upon registration, the corporation is “subject to the same liabilities, restrictions, duties and penalties . . . imposed on domestic entities.” Id. § 402(d). And “qualification as a foreign corporation” permits state courts to “exercise general personal jurisdiction” over a registered out-of-state corporation just as if it were a Pennsylvania corporation. 42 Pa. Cons. Stat. § 5301(a); (a)(2)(i) (1978).

         [12].     Alan B. Morrison, Plaintiffs and Precedent Win the Day in Norfolk Southern Case, Bloomberg L. (July 29, 2023), https://news.bloomberglaw.com/us-law-week/plaintiffs-and-precedent-win-the-day-in-norfolk-southern-case [https://perma.cc/4A7U-5HGC].

         [13].     See Maggie Gardner, Mallory Decision Opens New Path for Personal Jurisdiction, Transnat’l Litig. Blog (June 28, 2023), https://tlblog.org/mallory-decision-opens-new-path-for-personal-jurisdiction [https://perma.cc/22C3-DEFQ].

         [14].     The Supreme Court – Leading Cases, 137 Harv. L. Rev. 360, 369 (2022).

         [15].     Mallory v. Norfolk Southern Railway Co.: A New ‘Third Rail’ for Litigation Tourism or a Short-Lived Detour from the At Home Rule?, Greenberg Traurig: GT Alert (June 29, 2023), https://www.gtlaw.com/en/insights/2023/6/mallory-v-norfolk-southern-railway-co-a-new-third-rail-for-litigation-tourism-or-a-short-lived-detour-from-the-at-home-rule [https://perma.cc/T2ET-CW6B].

         [16].     For courts, see e.g., Fuld v. Palestine Liberation Org., 82 F.4th 74, 87–88 (2d Cir. 2023) (conflating consent and waiver); Lumen Techs. Serv. Grp., LLC v. CEC Grp., LLC, 691 F. Supp. 3d 1282, 1286 (D. Colo. 2023) (conflating consent under Mallory with consent through appearance or through a forum selection clause); Erbey Holding Corp. v. BlackRock Fin. Mgmt., Inc., No. SX-2018-CV-00146, 2023 WL 8432847, at *56–*57 (V.I. Super. Ct. Dec. 4, 2023) (conflating Mallory and consent to service); Cannon Fin. Servs., Inc. v. Direct Impressions, Inc., Civ. No. 23-cv-167 (RBK/SAK), 2023 WL 6140689, at *4 (D.N.J. Sept. 18, 2023) (citing Mallory in support of consent via a forum selection clause); Meridian PO Fin., LLC v. OTR Tire Grp., Inc., No. CV-20-00446-PHX-MTL, 2023 WL 5348551, at *2 (D. Ariz. Aug. 18, 2023) (doing the same).

                    A notable exception, on the theoretical side, is Roger Michalski, Personal Jurisdiction’s Aberrant Theory of Consent 3 (Sept. 12, 2024) (unpublished manuscript) (on file with author) (“show[ing] how personal jurisdiction’s theory of consent has become a Kafkaesque edifice of prorogation and derogation clauses, explicit and implicit consent, waiver, consent by appointment of an agent, consent as a sanction, estoppel, consent to jurisdiction by consent to conditions of service, class action opt-out implications, consent by business registration statutes, and forfeiture”).

         [17].     E.g., Transcript of Oral Argument at 11, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023) (No. 21-1168) (“I’m wondering what kind of consent you’re talking about.”) (Kagan, J.); id. at 8 (analogizing consent by registration to an “agreement”) (Thomas, J.); id. at 20–21 (wondering if consent is really a kind of waiver) (Jackson, J.); id. at 73–74 (pointing out the distinction between ex ante consent and in-litigation consent) (counsel for the railroad); id. at 8–9 (equating consent-to-service statutes as consent to jurisdiction) (counsel for Mallory).

         [18].     E.g., Plf. Tyco Fire Prod.’s Omnibus Resp. in Opp. to Insurer Defs’ Mot. to Dismiss or Stay at 16–17, Tyco Fire Prods. v. AIU Ins. Co., 2023 WL 6314488 (Aug. 14, 2023); In re Aqueous Film-Forming Foams Prod. Liab. Litig., C.A. No. 2:18-2873-RMG, 2023 WL 6846676, at *5 (D.S.C. Oct. 17, 2023) (noting the parties’ disagreement on the applicability of Mallory beyond Pennsylvania).

         [19].     See infra Part I.A.

         [20].     See infra Part I.A.

         [21].     See infra Part I.B.

         [22].     See infra Part II.A.

         [23].     See infra Part II.B.

         [24].     See infra Part II.C.

         [25].     See infra Part II.D.

         [26].     See infra Part II.E.

         [27].     See infra Part III.A.

         [28].     See infra Part III.B.

         [29].     Scott Dodson, Rule 4 and Personal Jurisdiction, 99 Notre Dame L. Rev. 1, 7 (2023) (“[T]he defendant’s willing appearance and acquiescence in the proceedings was essential to the legitimacy of the judgment.”); 2 William Searle Holdsworth, A History of English Law 105 (3d ed. 1923).

         [30].     2 Frederick Pollock & Frederick William Maitland, The History of English Law Before the Time of Edward I 591–92 (2d ed. 1898).

         [31].     Scott Dodson & Sebastian Spinei, Judicial Jurisdiction and Competence, in Comparative Civil Procedure 134, 150 (Margaret Y.K. Woo & Cornelis Hendrik van Rhee eds., 2025); Nathan Levy, Jr., Mesne Process in Personal Actions at Common Law and the Power Doctrine, 78 Yale L.J. 52, 56–57 (1968) (identifying procedures for compelling voluntary appearance of defendants inside and outside the territory).

         [32].     See Levy, Jr., supra note 31, at 69 (explaining how the Frivolous Arrest Act marked the transition from physical arrest to civil summons).

         [33].     See Harold L. Korn, The Development of Judicial Jurisdiction in the United States: Part I, 65 Brook. L. Rev. 935, 949–51 (1999) (recounting the sources for the colonial development of personal jurisdiction).

         [34].     See James Weinstein, The Early American Origins of Territoriality in Judicial Jurisdiction, 37 St. Louis U. L.J. 1, 41 (1992).

         [35].     See Joseph Story, Commentaries on the Conflict of Laws § 539 (1834) (“[N]o sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions.”).

         [36].     For some history on this point, see Charles W. “Rocky” Rhodes, Nineteenth Century Personal Jurisdiction Doctrine in a Twenty-First Century World, 64 Fla. L. Rev. 387, 391–97 (2012).

         [37].     59 U.S. (18 How.) 404 (1855).

         [38].     Id. at 406.

         [39].     Id. at 408.

         [40].     Oscar G. Chase, Consent to Judicial Jurisdiction: The Foundation of “Registration” Statutes, 73 N.Y.U. Ann. Surv. Am. L. 159, 174–75 (2018) (calling French a case of “implied jurisdiction” and stating that it “established that consent was a valid basis for jurisdiction”); Cody J. Jacobs, In Defense of Territorial Jurisdiction, 85 U. Chi. L. Rev. 1589, 1600 (2018) (asserting that French “uph[e]ld[] a statute requiring companies issuing insurance contracts to consent to jurisdiction”).

         [41].     95 U.S. (5 Otto) 714 (1878).

         [42].     Id. at 733.

         [43].     Id.

         [44].     Id. at 735 (referring to statutes that “require a non-resident . . . to appoint an agent or representative in the State to receive service of process . . . or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way”).

         [45].     Pennoyer, too, has occasionally been cited as support for consent to personal jurisdiction directly. See, e.g., Carol Andrews, Another Look at General Personal Jurisdiction, 47 Wake Forest L. Rev. 999, 1002–03, 1003 n.12 (2012) (citing Pennoyer for the proposition that the “physical power rule” had, as one exception, “suits in which the defendant consented to jurisdiction”); Chase, supra note 40, at 174 (identifying Pennoyer as “affirm[ing] consent as one of the bases on which a court could obtain jurisdiction over a person who was not found in the state”); Jacobs, supra note 40, at 1600 (“The validity of statutes requiring consent to the exercise of personal jurisdiction as a condition of conducting certain activities in a state was reaffirmed in Pennoyer . . . .”); Adam N. Steinman, Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401, 1461 n.330 (2018) (citing Pennoyer as support for jurisdiction based on consent); see also Br. for the U.S. as Amicus Curiae Supporting Resp. at 22, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2022) (No. 21-1168) (stating that Pennoyer sanctioned personal jurisdiction when “the defendant had consented to suit”). But Pennoyer did not equate voluntary appearance with “consent,” and Pennoyer’s recognition of “assent[]” pertained only to conditions of service. See Pennoyer, 95 U.S. at 733–35.

         [46].     96 U.S. 369 (1877).

         [47].     Id. at 370.

         [48].     Act of Mar. 3, 1875, 18 Stat. 470; id. at 375.

         [49].     Schollenberger, 96 U.S. at 376 (citing French).

         [50].     Id. at 377 (emphasis added). See also id. (“[I]f the legislature of a State requires a foreign corporation to consent to be ‘found’ within its territory, for the purpose of the service of process in a suit, as a condition to doing business in the State, and the corporation does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was procured by consent.”).

         [51].     106 U.S. (16 Otto) 350 (1882).

         [52].     Id. at 360; see also id. (“[C]orporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specifically authorized their agents to receive service of process.”).

         [53].     243 U.S. 93 (1917).

         [54].     See id. at 94.

         [55].     See id.

         [56].     See id.

         [57].     See id. at 95. The insurance company’s express appointment of the in-state agent was crucial to the decision because the Court previously had refused to infer assent to substituted service on an in-state insurance commissioner for causes of action occurring outside the state. Compare Old Wayne Mut. Life Ins. Ass’n v. McDonough, 204 U.S. 8, 22 (1907) (“Such assent [to appointment of an in-state agent] cannot properly be implied where it affirmatively appears as it does here, that the business was not transacted in Pennsylvania.”), with Pennsylvania Fire, 243 U.S. at 96 (distinguishing Old Wayne because the insurance company’s express appointment was its “voluntary act”).

         [58].     190 U.S. 147 (1903).

         [59].     Id. at 157. See also Simon v. S. Ry. Co., 236 U.S. 115, 130 (1915) (“[E]very state has the undoubted right to provide for service of process upon any foreign corporations doing business therein; to require such companies to name agents upon whom service may be made; and also to provide that in case of the company’s failure to appoint such agent, service, in proper cases, may be made upon an officer designated by law.”). But see Old Wayne, 204 U.S. at 22–23 (holding a nonresident insurance company’s implied assent to appointment of the state insurance commissioner as the company’s agent for purposes of service of process to be limited to suits pertaining to the company’s in-state business).

         [60].     274 U.S. 352 (1927).

         [61].     Id. at 354.

         [62].     E.g., 4 Wright & Miller’s Federal Practice & Procedure § 1065 (4th ed. 2023) (calling Hess a case about “‘implied consent’ jurisdiction”).

         [63].     Hess, 274 U.S. at 355 (making clear that the case was about “consent to be bound by the process of [a state’s] courts”); id. at 357 (“The difference between the formal and implied appointment is not substantial, so far as concerns the application of the due process clause.”).

         [64].     E.g., Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 735 (1877) (“It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed.”) (quoting Trallee v. Dumergue, 154 E.R. 1221 (1849), and citing Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855)).

         [65].     8 U.S. (4 Cranch) 421 (1808).

         [66].     Id. at 421–22.

         [67].     Id. at 422–24.

         [68].     Id. at 428–29.

         [69].     137 U.S. 15, 16–20 (1890).

         [70].     Id. at 20.

         [71].     Id. at 21 (“Can it be held, therefore, that legislation simply forbidding the defendant to come into court, and challenge the validity of service upon him in a personal action, without surrendering himself to the jurisdiction of the court, . . . deprives him of liberty or property, within the prohibition of the fourteenth amendment? We think not.”); see also McDonald v. Mabee, 243 U.S. 90, 91 (1917) (“[S]ubmission to the jurisdiction by appearance may take the place of service upon the person.”). Challenging personal jurisdiction in the forum court is a voluntary submission to the jurisdiction of that court to decide the personal jurisdiction issue, precluding relitigation of personal jurisdiction in a subsequent proceeding. See Chi. Life Ins. Co. v. Cherry, 244 U.S. 25, 29–30 (1917) (holding consistent with due process a state court’s determination that because “the issue of jurisdiction over the parties was raised and adjudicated after full hearing in the former case, it could not be reopened in this suit”).

         [72].     303 U.S. 59 (1938).

         [73].     Id. at 67–68.

         [74].     Cf. Patrick J. Borchers, Look Both Ways Before You Cross the Tracks: Mallory v. Norfolk Southern Railway Co. and the Past and Future of Personal Jurisdiction Law, 57 Creighton L. Rev. 1, 17 (2023) (“There’s also the question of whether ‘consent’ is the right word to describe assertions such as jurisdiction by registration . . . . Rather, it’s a voluntary activity that predictably results in jurisdiction in the forum state.”).

         [75].     308 U.S. 165 (1939).

         [76].     Id. at 170 (“[S]ervice upon such an agent, in conformity with a valid state statute, constituted consent to be sued in the federal court and thereby supplanted the immunity as to venue . . . .”).

         [77].     See supra text accompanying notes 47–50.

         [78].     Neirbo, 308 U.S. at 170–71 (emphases added). The phrase “consent to be sued” had been used by the Court in dictum and in other contexts involving federal law and federal courts. See Balt. & O. R. Co. v. Harris, 79 U.S. 65, 81 (1870) (stating, in dictum, that a corporation “may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place” and that “[o]ne of these conditions may be that it shall consent to be sued there”); see also Chi. & N.W. R. Co. v. Whitton, 80 U.S. 270, 285 (1871); Old Wayne Mut. Life Ins. Ass’n v. McDonough, 204 U.S. 8, 22 (1907) (quoting Harris and citing Whitton).

         [79].     Subsequent admiralty cases enforced private ex ante contracts with forum selection clauses. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 587–89 (1991); M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972). Although the issues in those cases were of federal venue, not personal jurisdiction, they are part of the era’s growing acceptance of consent by contract. See David Marcus, The Perils of Contract Procedure: A Revised History of Forum Selection Clauses in the Federal Courts, 82 Tul. L. Rev. 973, 1032 (2008) (arguing that Bremen and its progeny represent a break from previous forum selection skepticism).

         [80].     326 U.S. 310 (1945).

         [81].     Id. at 318. Cf. id. at 317 (stating that minimum contacts can establish personal jurisdiction “even though no consent to be sued or authorization to an agent to accept service of process has been given”).

         [82].     350 U.S. 495 (1956) (per curiam).

         [83].     Id. at 496.

         [84].     Id.

         [85].     375 U.S. 311 (1964).

         [86].     Id. at 313.

         [87].     Id. at 314.

         [88].     Id. at 315.

         [89].     Id. at 316.

         [90].     456 U.S. 694 (1982).

         [91].     Id. at 697–98.

         [92].     Id. at 698–99.

         [93].     Id. at 703.

         [94].     See Petrowski v. Hawkeye-Sec. Ins. Co., 350 U.S. 495, 496 (1956) (per curiam) (stating that the post-answer stipulation “waived any right to assert a lack of personal jurisdiction”) (emphasis added). Cf. Fed. R. Civ. P. 12(h) (providing that a “party waives [the] defense” of lack of personal jurisdiction).

         [95].     Ins. Corp., 456 U.S. at 703.

         [96].     Id. at 704.

         [97].     Id.

         [98].     Id. at 704–05.

         [99].     Id. at 705.

       [100].     Id. at 706.

       [101].     Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 126 (2023).

       [102].     Id.; see 45 U.S.C. §§ 51–60.

       [103].     Mallory, 600 U.S. at 126. The railroad was unable to remove the case to federal court first because FELA cases are nonremovable. 28 U.S.C. § 1445(a).

       [104].     Mallory, 600 U.S. at 136.

       [105].     Id. at 127.

       [106].     Id. at 138 (stating that “all International Shoe did was stake out an additional road to jurisdiction”); id. at 152–53 (Alito, J., concurring) (distinguishing International Shoe as applying to nonconsenting corporations).

       [107].     Id. at 146 n.11 (Gorsuch, J.) (“[A] majority of the Court today agrees that: Norfolk Southern consented to suit in Pennsylvania.”); id. at 152 (Alito, J., concurring) (stating that the railroad “took steps that, under the express terms or previous authoritative construction of state law, were understood as consent to the State’s jurisdiction in suits on all claims”).

       [108].     Pennsylvania law provides that an out-of-state corporation “may not do business in this Commonwealth until it registers” to do so. 15 Pa. Cons. Stat. § 411(a). Upon registration, the corporation is “subject to the same liabilities, restrictions, duties and penalties . . . imposed on domestic entities.” Id. § 402(d). And “qualification as a foreign corporation” permits state courts to “exercise general personal jurisdiction” over a registered out-of-state corporation just as if it were a Pennsylvania corporation. 15 Pa. Cons. Stat. § 411(a); 42 Pa. Cons. Stat. § 5301(a); (a)(2)(i). The Georgia Supreme Court has similarly interpreted Georgia law to authorize general personal jurisdiction upon business registration, though its statutory scheme differs from that of Pennsylvania. See Cooper Tire & Rubber Co. v. McCall, 863 S.E.2d 81, 83 (Ga. 2021).

       [109].     Mallory, 600 U.S. at 135 (“[S]uits premised on these grounds do not deny a defendant due process of law.”).

       [110].     Id. at 144–45.

       [111].     Id. at 145.

       [112].     Id. at 138, 146 (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 465 U.S. 694, 704–05 (1982)). Gorsuch’s focus on “legal submission” harkens to Justice Kennedy’s plurality opinion in Nicastro, which pitched consent to jurisdictional power as the animating feature of all forms of personal jurisdiction, including specific jurisdiction. J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 880–81 (2011) (Kennedy, J.) (folding “explicit consent” (citing Insurance Corp.), “[p]resence within a State at the time suit commences through service of process” (citing Burnham), general jurisdiction (citing Daimler), and specific jurisdiction into the omnibus concept of “an intention to submit to the laws of the forum State”). Cf. id. at 901 (Ginsburg, J., dissenting) (characterizing Kennedy’s opinion as advancing the “notion that consent is the animating concept” for personal jurisdiction).

       [113].     See supra note 12.

       [114].     Br. for Resp. at 5, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2022) (No. 21-1168), 2022 WL 3925010 (“This scheme is unique. All other states require foreign companies to register and appoint an agent for service of process, but only Pennsylvania’s statutes assert jurisdiction based on registration.”).

       [115].     Supreme Court counsel for Mallory, Ashley Keller, believes the railroad was served in Virginia. See Jurisdiction After Mallory, Conversations on Civil Justice (Feb. 9, 2024), https://executive.law.berkeley.edu/boosts/jurisdiction-after-mallory/ [https://perma.cc/L6TG-X4FV]. That belief is supported by Mallory’s original complaint. See Civil Action at 2 (Sept. 18, 2017), Mallory v. Norfolk S. Ry. Co., No. 17090196 (Pa. Ct. Comm. Pleas) (asserting that the railroad’s “address for service of process is Three Commercial Place, Norfolk, VA 23510”).

       [116].     Cf. Br. for Resp. at 5 (“Mallory thus asserted personal jurisdiction based solely on Norfolk Southern’s registration.”); Email from Ashley Keller to Patrick Borchers (Nov. 11, 2023, 5:15 AM) (on file with author) (“PA does not require appointment of a corporate agent. So that is not how it was served.”).

       [117].     Mallory, 600 U.S. at 135–36.

       [118].     See supra text accompanying notes 36–64.

       [119].     Mallory, 600 U.S. at 130 (Gorsuch, J.).

       [120].     Id. (Gorsuch, J.).

       [121].     Id. at 135; see also id. at 138 (“Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there.”); id. at 146 n.11 (characterizing Pennsylvania Fire as a “rule for consent-based jurisdiction”).

       [122].     Perhaps unsurprisingly, counsel for Mallory characterized the consent-to-service statutes as consent to jurisdiction repeatedly. Transcript of Oral Argument at 3, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023) (No. 21-1168) (“As far back as 1827, states enacted laws like Pennsylvania’s, and by 1868 or shortly thereafter, every state in the union had at least one and often several consent-by-registration statutes.”); Brief for the Petitioner at 3, 7, Mallory v. Norfolk S. Ry. Co., 600 U.S. 122 (2023) (No. 21-1168) (characterizing Pennsylvania Fire as “consent extracted” and stating that the Arizona corporation “consented to jurisdiction” in that case).

       [123].     Mallory, 600 U.S. at 145–46.

       [124].     Id. at 138 (quoting Insurance Corp., 465 U.S. at 703); id. at 146 (quoting Insurance Corp., 465 U.S. at 704–05).

       [125].     Id. at 144 (characterizing the railroad’s conduct as “submit[ting] to suit in the forum State”); id. at 151 (Alito, J., concurring) (“[B]y registering, it consented to all valid conditions imposed by state law.”). Though acknowledging that the statutory provisions did not use the word “consent,” the Court stated that it has “[n]ever imposed some sort of ‘magic words’ requirement” in extracted-consent cases. Id. at 136 n.5.

       [126].     Id. at 147 (Jackson, J., concurring).

       [127].     Id.

       [128].     Id. at 147.

       [129].     Id. at 148 (quoting Insurance Corp., 45 U.S. at 704–05).

       [130].     Id.

       [131].     John F. Coyle & Robin J. Effron, The Puzzle of Floating Forum Selection Clauses, 56 N.Y.U. J. Int’l L. & Pol. 183, 191 (2024); see, e.g., Jeffrey L. Rensberger, Consent to Jurisdiction Based on Registering to Do Business: A Limited Role for General Jurisdiction, 58 San Diego L. Rev. 309, 315 (2021) (“Courts often use the terms consent and waiver interchangeably.”); Pardazi v. Cullman Med. Ctr., 896 F.2d 1313, 1317 (11th Cir. 1990) (“[W]hen Cullman failed to raise its personal-jurisdiction and service-of-process objections in its pre-answer motion to dismiss, it waived any objections that it might have had to the court’s exercise of personal jurisdiction.”).

       [132].     Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939).

       [133].     See Scott Dodson, Party Subordinance in Federal Litigation, 83 Geo. Wash. L. Rev. 1, 40 (2014) (“Although legal nomenclature tends to sweep various party choices into a single concept of ‘waiver,’ the choices have formal distinctions.”) [hereinafter Dodson, Party Subordinance in Federal Litigation]; Rensberger, supra note 131, at 315, 317 (arguing that “one can and should distinguish between” consent and waiver and giving examples of how the concepts are different).

       [134].     The Court has affirmed, though not in a personal jurisdiction case, that forfeiture generally has an independent meaning. Wood v. Milyard, 566 U.S. 463, 470 n.4 (2012) (“A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve.”); Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (“Although jurists often use the words interchangeably, forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.” (citation cleaned up)).

       [135].     This framework seems close to that of Professor John Coyle, Professor Robin Effron, and Professor Aaron Simowitz, who attend to the differences between the scope of personal jurisdiction and the defense of lack of personal jurisdiction. Coyle & Effron, supra note 131, at 192 (concluding that waiver focuses “not on the content of the right but on the party’s implied or express choice to forego enforcement of that right”); Robin J. Effron & Aaron D. Simowitz, The Long Arm of Consent, 80 N.Y.U. Ann. Surv. Am. L. 179, 199 (2024) (“For purposes of this paper, ‘submission’ refers to a party’s acceptance of the forum state’s adjudicative authority via some sort of affirmative act. ‘Waiver,’ on the other hand, is the term we use to denote when a party does not object to personal jurisdiction when appearing in a lawsuit, thus waiving the right to pursue a personal jurisdiction defense.”); see also 4 Wright & Miller, supra note 62, at § 1067.3 (distinguishing between “consent to have the case adjudicated in the forum” and “waiver of the personal jurisdiction defense”).

       [136].     Dodson, Party Subordinance in Federal Litigation, supra note 133, at 47 (arguing that if the party conduct “alter[s] the substantive scope of personal jurisdiction,” then “the court actually has personal jurisdiction”). Cf. David H. Taylor, The Forum Selection Clause: A Tale of Two Concepts, 66 Temp. L. Rev. 785, 816–18 (1993) (arguing that “procedural consent” entails conduct that expands a court’s personal jurisdiction).

       [137].     See infra Part II.E.

       [138].     Cf. Wood, 566 U.S. at 471–73 (discussing circumstances in which courts could raise a forfeited defense); Day v. McDonough, 547 U.S. 198, 202 (2006) (making clear that a court can resurrect a forfeited, but not a deliberately waived, defense); Granberry v. Greer, 481 U.S. 129, 134 (1987) (allowing a court to consider a forfeited exhaustion defense).

       [139].     Dodson, Party Subordinance in Federal Litigation, supra note 133, at 15–16, 30, 47 (explaining why the U.S. legal system gives weight to party choice).

       [140].     See Scott Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619, 640–41 (2017) (articulating the structural importance of personal jurisdiction) [hereinafter Dodson, Jurisdiction and Its Effects]. But cf. Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 144 (2023) (“To date, our personal jurisdiction cases have never found a Due Process Clause problem sounding in federalism when an out-of-state defendant submits to suit in the forum State. After all, personal jurisdiction is a personal defense that may be waived or forfeited.”); id. at 156 (Alito, J., concurring) (“[W]e have never held that a State’s assertion of jurisdiction unconstitutionally intruded on the prerogatives of another State when the defendant had consented to jurisdiction in the forum State.”).

       [141].     Cf. Coyle & Effron, supra note 131, at 192 (“The theory of voluntary submission has a different conceptual focus. Here, courts stress the fact that the party has brought itself within the jurisdiction of the court by submitting to or invoking its power.”).

       [142].     See supra text accompanying notes 69–73, 82–84 (describing these cases).

       [143].     Fed. R. Civ. P. 12(h)(1). Functionally, a rule specifying procedural requirements for the timely assertion of a defense strikes me as falling more comfortably within forfeiture, cf. Day v. McDonough, 547 U.S. 198, 202 (2006) (“Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer or in an amendment thereto.”) (citing Rule 12), but the text of the rule unambiguously states that failure to comply “waives [the] defense,” Fed. R. Civ. P. 12(h)(1). I question whether a court rule that extinguishes a constitutional defense—as opposed to procedurally disabling a party from raising the defense—is compatible with the Rules Enabling Act, but, for now, I take Rule 12(h) at its word and locate Rule 12(h) in the waiver category. For its part, Wright & Miller characterizes the rule as a “waiver” provision. 5C Wright & Miller’s Federal Practice & Procedure § 1391 (4th ed. 2024).

       [144].     E.g., 5B Wright & Miller’s Federal Practice & Procedure § 1351 (illustrating this principle with cases in which the defendant asserted permissive counterclaims).

       [145].     See, e.g., Boulger v. Woods, 917 F.3d 471, 477 (6th Cir. 2019) (characterizing waiver after initial preservation as “waiver through conduct,” “constructive consent,” and “forfeiture”); Blockowicz v. Williams, 630 F.3d 563, 566 (7th Cir. 2010) (stating that “the defense is waived . . . if the objecting party proceeds to litigate the case on its merits”); United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008) (“[A] defendant who properly raises a jurisdictional defense can nevertheless waive the defense by his subsequent conduct.”); Minemyer v. R-Boc Reps., Inc., (N.D. Ill. 2012) (holding that a defendant who failed to move for an evidentiary hearing on its personal jurisdiction defense during four years of pretrial litigation “waived” the defense).

       [146].     See Peterson v. Highland Music, Inc., 140 F.3d 1313, 1319 (9th Cir. 1998) (“[T]he minimum requirements of Rule 12 are satisfied when a defendant raises the issue of personal jurisdiction in a timely motion to dismiss. In the absence of other factors militating in favor of a finding of waiver, this suffices to preserve the issue of personal jurisdiction for appeal.”).

       [147].     See supra text accompanying notes 37–61 (describing these cases).

       [148].     See supra text accompanying notes 85–89 (discussing Szukhent).

       [149].     Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 709 (1982) (“Petitioners’ failure to supply the requested information as to its contacts with Pennsylvania supports the presumption that the refusal to produce evidence was but an admission of the want of merit in the asserted defense. The sanction took as established the facts—contacts with Pennsylvania—that CBG was seeking to establish through discovery. That a particular legal consequence—personal jurisdiction of the court over the defendants—follows from this, does not in any way affect the appropriateness of the sanction.” (internal quotation marks and citation omitted)); id. at 707 (stating that “the manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding”). The same kinds of presumptions exist for subject matter jurisdiction, for which direct consent to jurisdiction is not conventionally available. See Scott Dodson, Hybridizing Jurisdiction, 99 Calif. L. Rev. 1439, 1466–70 (2011) (explaining how proof standards and procedures can influence findings of subject matter jurisdiction).

       [150].     Professor Jeffrey Rensberger considers consent to be “a voluntary, subjective assent to a court’s jurisdiction” and waiver to be “a consequence imposed by the law as a result of voluntarily taking some other action.” Rensberger, supra note 131, at 315. For Professor Rensberger, then, waiver includes Adam, Rule 12(h), and estoppel under Insurance Corp. because the party’s actions lead to personal jurisdiction without the subjective intent of the party to submit to the court’s personal jurisdiction. See id. at 316–17.

       [151].     See supra note 143.

       [152].     Cf. Ins. Corp., 456 U.S. at 704 (characterizing Adam as waiver); Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 147–48 (2023) (Jackson, J., concurring) (referencing Adam in her discussion of waiver).

       [153].     Even Wright & Miller seems consigned to the unsettled nature of the concepts, stating that conduct can “constitute consent or a constructive waiver.” 4 Wright & Miller, supra note 62, at § 1067.3.

       [154].     Mallory, 600 U.S. at 144 (characterizing the railroad’s compliance with the Pennsylvania statute as “submit[ting] to suit in the forum State”); id. at 151 (Alito, J., concurring) (“[B]y registering, it consented to all valid conditions imposed by state law.”).

       [155].     E.g., Alexander Proudfoot Co. World Headquarters. v. Thayer, 877 F.2d 912, 921 (11th Cir. 1989) (stating that “the nonresident defendant in the present case contractually agreed to personal jurisdiction in Florida”).

       [156].     E.g., N.W. Nat’l Ins. Co. v. Donovan, 916 F.2d 372, 375 (7th Cir. 1990) (“[S]ince a defendant is deemed to waive . . . objections to personal jurisdiction or venue simply by not making them in a timely fashion, a potential defendant can waive such objections in advance of suit by signing a forum selection clause.”); see also Megan M. La Belle, Personal Jurisdiction and the Fairness Factor(s), 72 Emory L.J. 781, 821 (2023) (“A forum selection clause in a contract—even one that is non-negotiated—provides the paradigm example of jurisdictional consent.”).

       [157].     See supra text accompanying notes 65–73, 82–100.

       [158].     See supra note 79.

       [159].     See Mallory, 600 U.S. at 152 (Alito, J., concurring) (doubting the Pennsylvania statute’s constitutionality under the Dormant Commerce Clause).

       [160].     146 U.S. 202 (1892).

       [161].     Id. at 207 (“But that statute requiring the corporation, as a condition precedent to obtaining a permit to do business within the state, to surrender a right and privilege secured to it by the constitution and laws of the United States, was unconstitutional and void, and could give no validity or effect to any agreement or action of the corporation in obedience to its provisions.”).

       [162].     Rensberger, supra note 131, at 317 (quotation cleaned up).

       [163].     Sean Marotta, After Mallory, Businesses Shouldn’t Panic, But They Should be Ready to Keep Fighting, 45 Westlaw J. Asbestos 12 (Aug. 7, 2023).

       [164].     Rensberger, supra note 131, at 322.

       [165].     Most states do not equate registration with consent to personal jurisdiction. See Chase, supra note 40, at 181 (making this assertion). As a recent example, New York has construed its agent-service statute not to be consent to personal jurisdiction. See Aybar v. Aybar, 177 N.E.3d 1257, 1266 (N.Y. 2021) (“We have never conflated statutory consent to service with consent to general jurisdiction, and the fact remains that, under existing New York law, a foreign corporation does not consent to general jurisdiction in this state merely by complying with the Business Corporation Law’s registration provisions.”); see also Chavez v. Bridgestone Americas Tire Ops., LLC, 503 P.3d 332, 348 (N.M. 2021) (holding that the New Mexico business-registration statute “does not clearly, unequivocally, and unambiguously express an intent to require a foreign corporation to consent to general personal jurisdiction in New Mexico”).

       [166].     Cf. Borchers, supra note 74, at 12 (questioning whether a business-registration statute “can be construed to create jurisdictional power even if it’s a surprise to the registrant”). Consent could occur if the party continues to abide by the statute after learning of the new consent repercussions of doing so.

       [167].     State law can, however, define consent with respect to state law restrictions on state courts’ exercise of personal jurisdiction. Thus, the state can prevent state courts from exercising personal jurisdiction over a party despite that party’s consent. I explore the interplay between constitutional and statutory personal jurisdiction in more detail below. See infra Part II.D.

       [168].     See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 622–23 (2002) (holding that federal law, not state law, defines consent for purposes of state sovereign immunity under the U.S. Constitution).

       [169].     See S.E.C. v. Diversified Growth Corp., 595 F. Supp. 1159, 1164 (D.D.C. 1984) (rejecting a defendant’s “attempt to withdraw his consent” to personal jurisdiction); see also Coffin v. Magellan HRSC, Inc., No. CIV 20-0144 JB/GJF, 2021 WL 2589732, at *5–6, *38 (D.N.M. June 24, 2021) (holding that class members, by joining a class action, consented to the court’s personal jurisdiction and could not later withdraw that consent). Cf. Paul J. Morken, Church Discipline and Civil Tort Claims: Should Ecclesiastical Tribunals be Immune?, 28 Idaho L. Rev. 93, 152 (1991) (“When a civil court obtains personal jurisdiction over a party to an action, its jurisdiction over the individual continues throughout the proceedings which arise out of the original cause of action, notwithstanding withdrawal of consent or change of domicile.”).

       [170].     See, e.g., Bohreer v. Erie Ins. Exch., 165 P.3d 186, 187 (Ariz. App. 2007) (noting that the defendant “had not withdrawn its appointment of the Director . . . as an agent for service of process until after it had been served with the complaint”).

       [171].     Dodson, Party Subordinance in Federal Litigation, supra note 133, at 38 (“[I]f the law specifies an ex post mechanism for exercising the choice but not an ex ante mechanism, then the ex post mechanism is the only way to exercise the choice, and the ex ante agreement just becomes a contractual promise to utilize the legally sanctioned mechanism.”). Coyle and Effron endorse this promise-based view for forum selection clauses, Coyle & Effron, supra note 131, and the Court’s decision in Atlantic Marine also arguably supports this view for venue selection in federal court. See Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 56 (2013) (“Whether the parties entered into a contract containing a forum-selection clause has no bearing on whether a case falls into one of the categories listed in § 1391(b) . . . . The structure of the federal venue provisions confirms that they alone define whether venue exists in a given forum.”).

       [172].     Taylor, supra note 136, at 811–12. Taylor does not believe that parties can consent to personal jurisdiction without submission. See id. at 812.

       [173].     See Robert A. Prentice, “Law &” Gratuitous Promises, 2007 U. Ill. L. Rev. 881, 883 (“Absent one of these exceptions, a gratuitous promise will not be enforced, even if it is indisputable that its maker well considered and seriously intended it.”).

       [174].     Cf. Dodson, Personal Jurisdiction and Aggregation, supra note 6, at 29 (making clear that personal jurisdiction is a claim-by-claim analysis). It is unclear whether state law or federal common law would apply to such contract claims. See Dodson, Party Subordinance in Federal Litigation, supra note 133, at 34–37 (discussing the difficulties of either state law enforcement or federal law enforcement of contractual forum selection clauses). Cf. generally Amanda R. Szuch, Reconsidering Contractual Waivers of the Right to a Jury Trial in Federal Court, 79 U. Cin. L. Rev. 435 (2010) (considering the Erie implications of contractual waivers of jury trial rights in federal court).

       [175].     See York v. Texas, 137 U.S. 15, 20–21 (1890) (upholding the constitutionality of a state procedure that lacks a special-appearance rule).

       [176].     For exploration of privity issues in forum selection clauses, see generally John F. Coyle & Robin J. Effron, Forum Selection Clauses, Non-Signatories, and Personal Jurisdiction, 97 Notre Dame L. Rev. 187 (2021).

       [177].     Rensberger, supra note 131, at 332.

       [178].     See Zachary D. Clopton, Long Arm “Statutes”, 23 Green Bag 2d 89, 96 (2020) (tabulating the various state long-arm laws).

       [179].     See Burnham v. Superior Court of Cal., 495 U.S. 604, 627 (1990) (Scalia, J.) (“Nothing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction.”). Compare, e.g., Cal. Civ. P. Code § 410.10 (statutorily granting state courts “jurisdiction on any basis not inconsistent with the Constitution of this state or the United States”), with, e.g., N.Y. C.P.L.R. § 302 (setting out a detailed, fact-specific authorization scheme). State constitutional provisions often are interpreted the same as analogous federal constitutional provisions, see Scott Dodson, The Gravitational Force of Federal Law, 164 U. Pa. L. Rev. 703, 724–27 (2016) (documenting the pull that the U.S. Constitution has on interpretations of state constitutions), though they need not be, see William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977) (“State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”).

       [180].     Such agreements are generally enforced. See John F. Coyle & Katherine C. Richardson, Enforcing Outbound Forum Selection Clauses in State Court, 96 Ind. L.J. 1089, 1091 (2021) (“By the late 1990s, most state courts in the United States had come around to the view that these clauses should be given effect in most cases.”); see also John Coyle & Katherine C. Ricardson, Enforcing Inbound Forum Selection Clauses in State Court, 53 Ariz. St. L.J. 65, 68 (2021) (“State courts are routinely called upon to determine the validity of consent-to-jurisdiction clauses . . . . Their general practice is to enforce these clauses.”).

       [181].     The literature has documented instances of “forum selling,” in which courts (or states) vie to attract cases. See generally, e.g., Daniel Klerman & Greg Reilly, Forum Selling, 89 S. Cal. L. Rev. 241 (2016). One can imagine the reverse. See Borchers, supra note 74, at 18 (“To begin, not all states will decide to assert jurisdiction by registration to the full extent the Constitution permits . . . . [N]ot all policymakers believe allowing general jurisdiction by registration is in their state’s interest.”).

       [182].     Assume the Delaware law is otherwise constitutional.

       [183].     See William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, 116 Mich. L. Rev. 1205, 1236–37 (2018) (stating that the Fifth Amendment imposes a “national contacts” test for personal jurisdiction in federal courts).

       [184].     E.g., Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79 (“[N]o civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of servicing the writ.”).

       [185].     See Fed. R. Civ. P. 4(k)(1).

       [186].     See, e.g., 28 U.S.C. § 1330(c) (providing that, in a civil suit against a foreign state, “an appearance by a foreign state does not confer personal jurisdiction with respect to [certain] claim[s]”).

       [187].     See Dodson, supra note 29, at 34 (“[S]ubconstitutional personal jurisdiction in federal court reflects systemic policy choices about docket allocation, judicial relationships, and federalism. These are institutional and structural considerations, not rights.”).

       [188].     Cf. Ex parte Schollenberger, 96 U.S. 369, 377 (1877) (“[N]either can consent of parties give jurisdiction when the facts do not.”); Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328 (1838) (“The judiciary act has divided the United States into judicial districts. Within these districts, a circuit court is required to be holden . . . . Whatever may be the extent of their jurisdiction over the subject matter of suits, in respect to persons and property; it can only be exercised within the limits of the district.”); Picquet v. Swan, 17 F. Cas. 609, 612 (C.C.D. Mass. 1828) (No. 11,134) (Story, J.) (“[T]he exercise of the jurisdiction of the circuit courts by compulsive process, was essentially confined, by their very organization, within the limits of their respective districts.”); Ex parte Graham, 10 F. Cas. 911, 912 (C.C.E.D. Pa. 1818) (No. 5,657) (Washington, J.) (stating that Congress’s “division and appointment of particular courts, for each district, necessarily confines the jurisdiction of the local tribunals, within the bounds of the respective districts, within which they are directed to be holden”).

       [189].     Fed. R. Civ. P. 4(k)(1). Elsewhere, I have argued that Rule 4(k)’s territorial limits on service of process do not limit the scope of personal jurisdiction a federal court has but rather constrain the effectiveness of service to establish personal jurisdiction that already exists in a particular case. See Dodson, supra note 29, at 24–25 (“Rule 4 merely sets the means and conditions for bringing a defendant before a court that already has personal jurisdiction over the defendant.”); see also Miss. Publ’g Corp. v. Murphree, 326 U.S. 438, 444–45 (1946) (characterizing service as “the procedure by which a court . . . asserts jurisdiction over the person of the party served”). However, for my purposes here, limits on the exercise of personal jurisdiction are functionally equivalent to limits on the scope of personal jurisdiction.

       [190].     See Fed. R. Civ. P. 4(k)(1) (making service effective to establish federal court personal jurisdiction when the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located”).

       [191].     Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 170–71 (1939).

       [192].     See Fed. R. Civ. P. 4(k)(1).

       [193].     Fed. R. Civ. P. 4(k)(2).

       [194].     One way out of this quandary is to allow the defendant to waive Rule 4(k)(1)’s service requirement that the state court also has personal jurisdiction. See Dodson, supra note 29, at 25. This waiver of a federal service requirement would not be tantamount to consent to state court personal jurisdiction.

       [195].     42 Pa. Cons. Stat. § 5301(a)(2)(i) (1978).

       [196].     See Fed. R. Civ. P. 4(k)(1).

       [197].     See, e.g., supra note 16.

       [198].     E.g., Hamer v. Neighborhood Hous. Servs. of Chi., 583 U.S. 17, 18 (2017) (characterizing the Court’s test for when a limit is jurisdictional as “clear and easy to apply”); Hertz Corp. v. Friend, 559 U.S. 77, 79 (2010) (asserting that “administrative simplicity is a major virtue” in jurisdictional rules because it “promote[s] greater predictability” and benefits courts in “readily assur[ing] themselves of their power to hear a case”); Grupo Dataflux v. Atlas Glob. Grp., 541 U.S. 567, 582 (2004) (“Uncertainty regarding the question of jurisdiction is particularly undesirable . . . .”); Holmes Grp. v. Vornado Air Circulation Sys., 535 U.S. 826, 829–32 (2002) (lauding the well-pleaded complaint rule for its “clarity and ease of administration”); Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621 (2002) (justifying a test for sovereign immunity waiver on the ground that “jurisdictional rules should be clear”); see also John F. Preis, Jurisdiction and Discretion in Hybrid Law Cases, 75 U. Cin. L. Rev. 145, 167 (2006) (“Just about nobody, it seems, thinks that jurisdictional rules should be fuzzy.”); Martha A. Field, The Uncertain Nature of Federal Jurisdiction, 22 Wm. & Mary L. Rev. 683, 683 (1981) (arguing for “jurisdictional rules to be clear and simple”). For a contrary view, see generally Scott Dodson, The Complexity of Jurisdictional Clarity, 97 Va. L. Rev. 1 (2011) (doubting both the possibility and wisdom of clear and simple jurisdictional rules).

       [199].     See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (stating that narrowing general jurisdiction is justified by “afford[ing] plaintiffs recourse to at least one clear and certain forum in which a corporate defendant may be sued on any and all claims”).

       [200].     See Kontrick v. Ryan, 540 U.S. 443, 454–55 (2004) (“Courts, including this Court, it is true, have been less than meticulous in this regard; they have more than occasionally used the term ‘jurisdictional’ to describe emphatic time prescriptions in rules of court . . . . Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within the court’s adjudicatory authority.”).

       [201].     See Scott Dodson, A Critique of Jurisdictionality, 39 Rev. Litig. 355, 358–59 (2020) (recounting the many opinions issued by the Court on this topic).

       [202].     Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 135–36 (2023) (“To decide this case, we need not speculate whether any other statutory scheme and set of facts would suffice to establish consent to suit. It is enough to acknowledge that the state law and facts before us fall squarely within Pennsylvania Fire’s rule.”).

       [203].     One careful academic attempt is Effron & Simowitz, supra note 135, at 211–54 (canvassing some of consent’s complexities and offering a consent theory based on principles of deference); another is Michalski, supra note 16, at 5 (articulating a theory of personal jurisdiction consent tied to the legitimization of state power).

       [204].     Sam Heyman, Note, Mallory v. Norfolk Southern Railway Company: The Unwarranted End to Consent to General Jurisdiction in Pennsylvania, 95 Temp. L. Rev. 169, 176–77 (2022).

       [205].     See Mallory, 600 U.S. at 138 (“Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there. International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum State . . . .”); see also id. at 153 (Alito, J., concurring) (“Pennsylvania Fire’s holding, insofar as it is predicated on the out-of-state company’s consent, is not “inconsistent” with International Shoe or its progeny.”).

       [206].     A contemporaneous paper reaches the same conclusion. See Effron & Simowitz, supra note 135, at 188 (“[C]ontemporary notions of consent do not map well onto the traditional basis of jurisdiction as used and exercised at the time of Pennoyer.”).

       [207].     Burnham v. Superior Court of Cal., 495 U.S. 604, 615–19 (1990) (relying on longstanding acceptance of the principle that in-state service on an individual constitutionally establishes personal jurisdiction).

       [208].     One could, of course, give primacy to originalism in personal jurisdiction doctrine, as Justice Gorsuch has suggested, see Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 384 (2022) (Gorsuch, J., concurring) (“The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts.”), and scuttle much of the modern evolution of the Due Process Clause, but it is not clear how attractive that option would be for the other Justices. For commentary, see generally Allan Erbsen, Personal Jurisdiction’s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists, 75 Fla. L. Rev. 415 (2023); Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483 (2022).

       [209].     For a recent exploration of fairness and consent, especially from a procedural justice perspective, see Rebecca Hollander-Blumoff, The Procedural Justice of Personal Jurisdiction, 65 Ariz. L. Rev. 643, 682–90 (2023).

       [210].     Mallory, 600 U.S. at 178 (Barrett, J., dissenting) (endorsing International Shoe over earlier precedent).

       [211].     Chase, supra note 40, at 166.

       [212].     See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (noting the importance of permitting out-of-state defendants “to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit”).

       [213].     E.g., M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12–13 (1972) (“[A] freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect.”). Cf. Atl. Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49, 66 (2013) (“When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations. A forum-selection clause, after all, may have figured centrally in the parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place.”).

       [214].     Consent to jurisdiction in Europe is limited by the sense of unfairness in consumer contracts of adhesion. See Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, art. 5(2) (July 2, 2019); European Regulation No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, art. 19, 2012 O.J. (L 351) 1; Hague Convention on Choice of Court Agreements, art. 2(1), 44 I.L.M. 1294 (June 30, 2015).

       [215].     Commentators have considered the importance and utility of fairness in evaluating tacit or implied consent to personal jurisdiction. See, e.g., Lea Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L.J. 1277, 1306 (1989) (arguing for assessing tacit consent under notions of fairness); Wendy Collins Perdue, Personal Jurisdiction and the Beetle in the Box, 32 B.C. L. Rev. 529, 537–46 (1991) (criticizing tacit consent); Roger H. Transgrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 891 (1989) (arguing that “political consent” should not be “unfair” and that a reconceptualized notion of political consent would be “fair to all defendants”).

       [216].     Adam v. Saenger, 303 U.S. 59, 67–68 (1938) (“The plaintiff having, by his voluntary act in demanding justice from the defendant, submitted himself to the jurisdiction of the court, there is nothing arbitrary or unreasonable in treating him as being there for all purposes for which justice to the defendant requires his presence.”).

       [217].     See Scott Dodson, Plaintiff Personal Jurisdiction and Venue Transfer, 117 Mich. L. Rev. 1463, 1476–77 (2019) (exploring this hypothetical); see also Debra Lyn Bassett, Class Action Silence, 94 B.U. L. Rev. 1781, 1790 (2014) (arguing that implied consent to join a class action, based on failure to opt out, stretches the notion of consent). In the consent-to-service cases, the Court has allowed service that leads to state court jurisdiction over a defendant for claims arising outside of the state when the appointment of an in-state agent was express but not when it was implied. Compare Pa. Fire Ins. Co. v. Gold Issue Mining & Co., 243 U.S. 93, 97 (1917) (express appointment), with Old Wayne Mut. Life Ins. Ass’n v. McDonough, 204 U.S. 8, 22–23 (1907) (implied appointment), with Robert Mitchell Furniture Co. v. Selden Breck Constr. Co., 257 U.S. 213, 216 (1921) (distinguishing between “express appointment” and “implied” and stating that “[i]n the later case the implication is limited to business transacted within the State”).

       [218].     See La Belle, supra note 156, at 850–52 (applying the fairness factors to consent-by-registration cases).

       [219].     See J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011).

       [220].     Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 149 (2023) (Jackson, J., concurring) (“In other areas of the law, we permit States to ask defendants to waive individual rights and safeguards.”).

       [221].     See Fuentes v. Shevin, 407 U.S. 67, 80 (1983) (“For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” (internal quotation marks omitted)). For an application of notice doctrine to jurisdiction-by-registration statutes, see Robin J. Effron, The Lost Story of Notice and Personal Jurisdiction, 74 N.Y.U. Ann. Surv. Am. L. 23, 98–100 (2019).

       [222].     See Boddie v. Connecticut, 401 U.S. 371, 378–79 (1971) (acknowledging that “the hearing required by due process is subject to waiver”).

       [223].     405 U.S. 174 (1972).

       [224].     Id. at 186–87.

       [225].     Id. at 187.

       [226].     Id. at 188.

       [227].     407 U.S. 67 (1972).

       [228].     Id. at 94.

       [229].     Id.

       [230].     Id. at 95.

       [231].     Id. at 95–96.

       [232].     Id. at 96.

       [233].     See, e.g., Edelman v. Jordan, 415 U.S. 651, 677–78 (1974) (stating that immunity “sufficiently partakes of the nature of a jurisdictional bar”); Monaco v. Mississippi, 292 U.S. 313, 330 (1934) (stating that immunity is a restriction on jurisdiction). But see Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (calling the Eleventh Amendment an “immunity from suit, rather than a nonwaivable limit on . . . subject-matter jurisdiction”). For commentary on the jurisdictional stature of the Eleventh Amendment, see Dodson, Jurisdiction and Its Effects, supra note 140, at 649–51.

       [234].     Clark v. Barnard, 108 U.S. 436, 447 (1883).

       [235].     See Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1574–75 (2002).

       [236].     Another close analogy is foreign sovereign immunity, the waiver of which Congress has regulated by statute. 28 U.S.C. § 1605(a)(1) (providing for waiver “either explicitly or by implication”); id. § 1607 (denying immunity with respect to related counterclaims when a foreign state brings a suit or intervenes).

       [237].     See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985).

       [238].     See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 624 (2002).

       [239].     Cf. Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906) (“[W]here a State voluntarily becomes a party to a cause and submits its rights for judicial determination, it will be bound thereby and cannot escape the result of its own voluntary act by invoking the prohibitions of the Eleventh Amendment.”).

       [240].     Jonathan R. Siegel, Waivers of State Sovereign Immunity and the Ideology of the Eleventh Amendment, 52 Duke L.J. 1167, 1187 (2003).

       [241].     Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 169 (2023) (Barrett, J., dissenting) (“[W]hen a State announces a blanket rule that ignores the territorial boundaries on its power, federalism interests are implicated too.”).

       [242].     See Marcus, supra note 79, at 1044 (“Extraindividual concerns remain relevant to the clause enforcement equation.”).

       [243].     Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604 (2013). For perhaps the first invocation of the doctrine, see Home Ins. Co. v. Morse, 20 Wall. 445, 451 (1874). For seminal commentary, see generally Cass Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. Rev. 593 (1990); Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989); Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4 (1988).

       [244].     Koontz, 570 U.S. at 604–05.

       [245].     United States v. Am. Libr. Ass’n, 539 U.S. 194, 210 (2003).

       [246].     S. R. Co. v. Greene, 216 U.S. 400, 415–18 (1910) (holding that a corporation does not waive equal protection rights by registering to do business under a discriminatory state statute).

       [247].     Frost v. R.R. Comm’n of Cal., 271 U.S. 583, 599 (1926) (“We hold that the act under review, as applied by the court below, violates the rights of plaintiffs in error as guaranteed by the due process clause of the Fourteenth Amendment, and that the privilege of using the public highways of California in the performance of their contract is not and cannot be affected by the unconstitutional condition imposed.”).

       [248].     S. Pac. Co. v. Denton, 146 U.S. 202, 207 (1892) (“But that statute requiring the corporation, as a condition precedent to obtaining a permit to do business within the state, to surrender a right and privilege secured to it by the constitution and laws of the United States, was unconstitutional and void, and could give no validity or effect to any agreement or action of the Corporation in obedience to its provisions.”).

       [249].     See NFIB v. Sebelius, 567 U.S. 519, 580–85 (2012) (calling an unconstitutional Spending Clause threat to withhold funds “a gun to the head”).

       [250].     Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 604–05 (2013).

       [251].     See NFIB, 567 U.S. at 582. For a recent comprehensive treatment of unconstitutional conditions, see generally Ryan C. Williams, Unconstitutional Conditions and the Constitutional Text, 172 U. Pa. L. Rev. 747 (2024).

       [252].     See Mallory v. Norfolk S. Ry. Co., 266 A.3d 542, 569–71 (Pa. 2021) (holding Pennsylvania’s consent-to-jurisdiction statute violative of the unconstitutional-conditions doctrine), rev’d on other grounds, 600 U.S. 122 (2023); Chavez v. Bridgestone Americas Tire Ops., LLC, 503 P.3d 332, 336 (N.M. 2021) (noting the argument); Heyman, supra note 204, at 197–200 (discussing the issue); D. Craig Lewis, Jurisdiction Over Foreign Corporations Based on Registration and Appointment of an Agent: An Unconstitutional Condition Perpetuated, 15 Del. J. Corp. L. 1, 3 (1990) (arguing that consent-to-service statutes are unconstitutional conditions).

       [253].     Coyle & Effron, supra note 131, at 183.

       [254].     Id. (“[T]he floating clause does not name a specific jurisdiction in which to resolve disputes. Instead, it ties the choice of forum to a mutable fact that can change after the contract is signed.”).

       [255].     E.g., Brock v. Baskin-Robbins USA Co., 113 F. Supp. 2d 1078, 1082 (E.D. Tex. 2000) (noting that a Baskin-Robbins agreement stated that any dispute regarding the agreement “shall be resolved exclusively by the federal or state courts in the judicial district in which Baskin-Robbins has its principal place of business”).

       [256].     Danka Funding, L.L.C. v. Page, Scranton, Sprouse, Tucker & Ford, P.C., 21 F. Supp. 2d 465, 468 (D.N.J. 1998) (“You consent to the jurisdiction of any local, state or federal court located within our or our assignee’s state.”) (fixed capitalization).

       [257].     Lopez v. United Cap. Fund, LLC, 88 So. 3d 421, 423 (Fla. App. 2012) (“[E]ach of the parties hereto agrees that any . . . claim or cause or action shall be tried by a court trial without a jury in seller’s county and state of choice.”) (fixed capitalization); Price v. Brown Grp., 619 N.Y.S.2d 414, 417 (N.Y. App. 1994) (noting that the contract agreed to litigation in “any Court of competent jurisdiction within the United States”).

       [258].     Coyle & Effron, supra note 131, at 185.