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.