Page:Mallory v. Norfolk Southern.pdf/59

Rh Sidestepping Burnham’s logic, the plurality seizes on its bottom-line approval of tag jurisdiction. According to the plurality, tag jurisdiction (based on physical presence) and registration jurisdiction (based on deemed consent) are essentially the same thing—so by blessing one, Burnham blessed the other. See,. The plurality never explains why they are the same, even though—as we have just discussed—more than a century’s worth of law treats them as distinct. See also Burnham, 495 U. S., at 610, n. 1 (opinion of Scalia, J.) (corporations “have never fi[t] comfortably in a jurisdictional regime based primarily upon ‘de facto power over the defendant’s person’ ”); International Shoe, 326 U. S., at 316–317. The plurality’s rationale seems to be that if a person is subject to general jurisdiction anywhere she is present, then a corporation should be subject to general jurisdiction anywhere it does business. See, , , ,. That is not only a non sequitur—it is “contrary to the historical rationale of International Shoe.” Wenche Siemer v. Learjet Acquisition Corp., 966 F. 2d 179, 183 (CA5 1992).

Before International Shoe, a state court’s power over a person turned strictly on “service of process within the State” (presence) “or [her] voluntary appearance” (consent). Pennoyer v. Neff, 95 U. S. 714, 733 (1878). In response to changes in interstate business and transportation in the late 19th and early 20th centuries, States deployed new legal fictions designed to secure the presence or consent of nonresident individuals and foreign corporations. For example, state laws required nonresident drivers to give their “implied consent” to be sued for their in-state accidents as a condition of using the road. Hess v. Pawloski, 274 U. S. 352, 356 (1927); World-Wide Volkswagen, 444 U. S., at 296, n. 11. And foreign corporations, as we have discussed, were required by statute to “consent” to the appointment of a