Today’s guest post is from friend-of-the-Blog Richard Dean of Tucker Ellis. For years he has been advocating greater defense use of the dormant Commerce Clause, and given the discussion of that constitutional defense in the pivotal Alito concurrence in the recent Mallory v. Norfolk Southern Railway Co., ___ S. Ct. ___, 2023 WL 41877494 (U.S. June 27, 2023), personal jurisdiction decision, he is back again. He’s too nice to say “I told you so,” but he’s earned the right. As always our guest bloggers deserve 100% of the credit, and any blame, for what they write.Continue Reading Guest Post − Let the Dormant Commerce Clause Challenge to Consent Statutes Go Forth

We’ve blogged a number of times about the Dormant Commerce Clause (“DCC”) as an additional basis for bolstering both preemption and Due Process arguments.  Here’s another prescription drug-based example.

The state of New York decided to impose a special tax on opioid manufacturers to finance various responses to the so-called “opioid epidemic.”  The tax came

The first year law school class we most anticipated was Constitutional Law.  Then disappointment greeted us when we learned that the first year course covered only broad institutional topics such as judicial review and separation of powers.  The sexy bits – First Amendment, Fourth Amendment, Equal Protection, and Due Process – were reserved for higher

We have another guest post for our readers today, this time courtesy of Richard Dean of Tucker Ellis.  His point involves personal jurisdiction.  As we’ve discussed, some courts have allowed “general jurisdiction by consent” as a way to dodge Daimler AG. V. Baumann, 134 S. Ct. 746 (2014), on the basis of an ancient Supreme Court decision from 1917 – Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95 (1917).  This posts points out that this argument can be countered successfully with Supreme Court decisions (almost as old) involving the Dormant Commerce Clause.  It’s a nice counter, and it has worked.

As always, our guest poster deserves full credit (and any blame) for the contents that follow.


Last weekend I attended my 50th high school reunion in rural Indiana.  While driving to the reunion, there were literally cornfields to the North, South, East and West.  There was corn as far as the eye can see.  Ironically, that weekend I had my first occasion to read In re: Syngenta AG MIR 162 Corn Litigation, 2016 WL 2866166 (D. Kan. May 17, 2016).  I don’t think there has been any significant commentary about this case.  It deserves some.

The issue in this case was whether an MDL court located in Kansas had general jurisdiction over the defendant in cases direct-filed in the MDL, some of which had been selected for bellwethers, where none of the defendants were incorporated in or had their principal place of business in Kansas.  Kansas has a registration statute, which had been interpreted by the Kansas Supreme Court to establish consent jurisdiction.  Syngenta argued that such consent by registration of a business agent was effectively negated by Daimler AG. V. Baumann, 134 S. Ct. 746 (2014), and by earlier Supreme Court cases.  Originally the MDL Court had rejected this argument based upon the fact that the Supreme Court had not directly addressed the issue and there was Supreme Court authority supporting the constitutionality of such statutes from pre-Daimler days.  2016 WL 1047966 at * 2.  It denied the reconsideration on that basis on the merits.

But Syngenta  also asked the Court to reconsider based on the argument that giving effect to the consent statute would violate the Dormant Commerce Clause—an argument which Syngenta had previously raised only in passing.  That judicially created doctrine addresses the validity of state legislation that may unconstitutionally burden commerce in another, unrelated state. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).  The Court was persuaded by Syngenta’s motion, finding it “presented a much more thorough analysis of the application of the commerce clause.” Syngenta, 2016 WL 2866166 at *4.  And even though the court said it was not obligated to consider a motion for reconsideration, it believed that the issue was of sufficient importance to decide it.Continue Reading Guest Post – Corn, Justice Brandeis, Litigation Tourism and the Dormant Commerce Clause

As we discussed at length in this post, since the 1940s, the Pennsylvania Supreme Court and other courts applying Pennsylvania law have refused to subject prescription medical products to strict liability.  That is significant because, unlike (now) every other state in the country, since 1987 Pennsylvania precedent prohibited defendants from introducing evidence of their