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The Oligarchic Courthouse


Helen Hershkoff is the Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties at New York University School of Law.

Luke Norris (@Luke_P_Norris) is Professor of Law at the University of Richmond School of Law.

It is no secret that oligarchy—extreme wealth and political power concentrated in the hands of a small minority—can profoundly influence and undermine democracy. “The unusual aspect of oligarchic politics,” Jeffrey Sellers writes, “is that massive fortunes produce both particular political challenges—the need to defend wealth—and the unique power resources for pursuing that defense.” For Sellers and many other theorists, law serves as an instrument that oligarchs use for private ends that resist and distort public goals. The conventional account of oligarchy typically limits its focus to statutes and regulations, with less attention to how these laws actually work in practice. We think it important to expand the lens and draw greater attention to the role of courts, and especially of civil procedure and judicial jurisdiction, in furthering oligarchic conditions and their threat to democracy.

In a forthcoming article, we explore how federal courts, wielding procedures that govern their subject matter jurisdiction, contribute to rising oligarchic conditions and declining democratic capacity. Subject matter jurisdiction may seem no more than a dry and technical feature of civil litigation, unmoored from questions of economic influence and democratic vitality. But subject matter jurisdiction is fundamentally about power—the power of courts to entertain claims, enforce laws, and constrain the behavior of powerful actors. And it is precisely for this reason that subject matter jurisdiction has featured so prominently in corporate efforts to twist legal frameworks to their own ends by undermining the efficacy of litigation as a mechanism for enforcing laws and regulations. Through strategic use of procedure and jurisdiction, oligarchic actors are able to insulate their power from statutory and regulatory constraints and to do so with the sanction of law.

To understand the relationship between subject matter jurisdiction and economic power, we consider three prevalent features of contemporary jurisdictional practice that slant litigation and regulatory enforcement towards the interests of the economically powerful. The first is one of lock out: through their arbitration decisions, courts have permitted corporate parties to lock claimants out of court, divesting judges of jurisdiction and sending plaintiffs to private fora lacking many of the protections of public ones. The second is one of lock-in: in contexts where arbitration clauses aren’t present and plaintiffs have filed in state court, courts have permitted corporate parties to lock claimants into federal court through strained and sometimes erroneous removal doctrines—which can lead to the end of cases that would have proceeded in state court. And finally, there is throw out: courts have broadly permitted corporate parties to assert administrative primary jurisdiction, stretching the doctrine beyond any sensible limits and throwing claims out to agencies that may never consider them or may put them on the backburner to protracted agency proceedings.

These litigation moves all depend on corporate parties’ strategic use of subject matter jurisdiction to steer the dispute to a forum that enables them to avoid liability for violating common law and statutory rights without ever having to defend the suit on the merits. As plaintiffs seek to bring suits—very often enforcing regulatory and civil rights laws—jurisdiction has become a powerful tool used to wear them out and thwart access to judicial redress. Corporate victories over subject matter jurisdiction not only serve corporations’ short-term goals and block legitimate claims of redress, but also undermine legislative bargains and contribute to democratic erosion.

Proceduralists have long recognized the relationship between corporate deregulatory goals and an anti-adjudicative agenda. And today’s corporate effort to manipulate jurisdiction certainly is a chapter in that story. Indeed, contemporary jurisdictional shifts involving arbitration, removal, and primary jurisdiction constitute an inflection point similar to the one at the turn of the twentieth century, when federal court jurisdiction was implicated in a struggle over corporate power, rising oligarchic conditions, and the advent of the modern regulatory state. Then, corporations and aligned legislators and courts sought to cement large-scale enterprises in the U.S legal system and to weaken regulatory interventions that would rein in corporate power. These actors expanded the jurisdictional power of the federal courts, believing that federal courts were, as Howard Gillman reminds us, “forums of order for national commercial interests” that would aid in advancing deregulatory goals. Struggles over jurisdiction and corporate power were part of the larger battle over judicial power and oligarchy that framed the New Deal, prompting then-Professor Felix Frankfurter to reflect that “under the guise of seemingly dry jurisdictional and procedural problems, majestic and subtle issues of great moment to the political life of the country are concealed.”

Frankfurter’s words aptly describe today’s jurisdictional battleground. But today, the terrain is different. While the earlier century’s effort to cement large-scale enterprises succeeded, the efforts to resist the advent of the modern regulatory state were short-lived and ultimately largely failed in the constitutional confrontation of the New Deal. But the old struggle has new life today. As the regulatory state has grown since the New Deal, litigation has come to play a substantial—and in some ways outsized—role in making regulatory governance function. And cutting off litigation or blunting its effects at the earliest jurisdictional stages is a core anti-regulatory strategy for corporate actors for wearing out litigants seeking to enforce regulatory laws and ending litigation.

But the current jurisdictional wars are taking on a disturbing shape that suggests these trends are not simply business as usual. In our view, federal courts’ doctrines and decisions sanctioning corporate efforts to manipulate jurisdiction are part of the growing architecture of what we call the “oligarchic courthouse”—a judicial system in which corporate actors are permitted to leverage their private economic power into not only greater wealth, but also self-serving public institutional policy, without due regard to the democratic costs of their adjudicative conduct. By stymying the ability of less powerful parties to access court (arbitration), litigate in a more convenient forum (removal), or litigate in a timely matter or even at all (primary jurisdiction), corporate actors effectively use civil procedure to ensure that laws enacted to regulate their affairs are not meaningfully enforced. Procedure is thus a sword and shield for corporate actors seeking to insulate their power and manipulate state institutions to their own ends.

Battles over jurisdiction are thus part and parcel of how economic power translates into political power—of how oligarchy comes into shape as corporate actors bend public resources to suit their own ends. Corporate success in the jurisdictional wars has enabled powerful interests to gain and retain control over judicial process without due regard to democratic goals. The practices highlight that oligarchy is about the economically powerful shaping not only “substantive” policies, but also the procedures for generating, implementing, and blocking enforcement of those policies.

Finally, the rise of the oligarchic courthouse has troubling implications for democratic governance—and can be nested in a larger account of democratic decline and erosion in the United States today. To understand why, it is first important to recognize jurisdiction as a form of political resource, one that can dynamically affect the possibilities for democratic contestation and mobilization. Law and social mobilization theorists have long recognized that procedural design choices can affect the ability of organized citizens to contest power and shape democratic norms. Jurisdictional questions are foundational not only to a court’s ability to exercise power but also to citizens’ ability to leverage public resources to engage in democratic contestation. And the manipulations of jurisdiction by corporate actors that we explore undermine the possibilities of and for democratic mobilization, taking the wind from the sails of citizens seeking to contest power and enforce and shape democratic norms. Abstruse jurisdictional battles enable corporate parties to leverage public power for their exclusive, private ends, deepening concentrations of corporate power, exacerbating inequality, and undermining participatory capacity. In this way, jurisdictional doctrines contribute to the broader closing of democratic doors that characterizes our era of democratic decline.

Our effort to cohere jurisdictional doctrines and embed them in a larger account of oligarchy and democracy forms part of a growing shift in the study of procedure and federal courts. Much important work is being done on courts and inequality—work focusing on debt-collection, state courts, racial subordination, unpublished opinions, pro se litigants, standing, elite control, and so much more. The larger web of civil procedure is one where economic power is concentrated and where democratic commitments are eroded. In future work, we aim to broaden the lens—focusing on how the judiciary is limiting sovereign enforcement power and eroding democracy from another angle.

All of these interventions work to shift the terms of the dialogue. For too long, procedural scholars have organized their analyses around the concept of neutrality, deliberately disconnecting procedure from larger political and economic tides. But procedure and jurisdiction are ineluctably tied to questions of economic and political power and cannot claim to be neutral in the classic sense. By engaging frontally with democratic values and issues of political economy, we can better analyze, and resist, judicial developments that undermine commitments to equality, respect, and dignity. That work is critical, in our view, to a constructive project of reimagining judicial power in ways that support, rather than undermine, democratic goals.