The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline

Helen Hershkoff* & Luke Norris** October, 2023

Jurisdiction is foundational to the exercise of judicial power. It is precisely for this reason that subject matter jurisdiction, the species of judicial power that gives a court authority to resolve a dispute, has today come to the center of a struggle between corporate litigants and the regulatory state. In a pronounced trend, corporations are using jurisdictional maneuvers to manipulate forum choice. Along the way, they are wearing out less-resourced parties, circumventing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court, or to punt federal cases to administrative agencies that may lack the power or will to resolve the underlying issues in the case. These efforts have largely been successful. This Article offers a panoramic view of how over recent decades federal courts have acquiesced in a corporate-driven effort to leverage jurisdictional doctrines to their unique private advantage, and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that corporate adjudicatory practice has slanted judicial power in favor of deregulatory efforts that undermine legal commitments to equality, dignity, and participation. The shifts in jurisdiction, which may seem to be merely technical and apolitical, are a core part of the architecture of what we call the oligarchic courthouse—one where courts as public institutions transform their procedures to meet private, corporate interests at the expense of public goals, thereby cementing economic power and translating it into concentrated political power that undermines the possibility of robust democratic life.

The trends we describe in federal subject matter jurisdiction resonate with earlier corporate battles at the turn of the twentieth century. But the construction of today’s oligarchic courthouse holds implications for democracy that are not simply a reprise of earlier corporate efforts. To show the scope of the implications, the Article steps back and clarifies why jurisdiction matters to democracy. Drawing on law and social mobilization literature, we argue that jurisdiction functions as a political resource that facilitates opportunities for democratic contestation and both reflects and shapes the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by entrenching economic power and narrowing participatory options for workers, consumers, and other less-resourced litigants, can be nested in a larger account of democratic decline in the United States.

Introduction

Marc Galanter’s essay, Why the “Haves” Come Out Ahead,¹ is one of the most cited pieces in legal scholarship.² As is well-known, Galanter explained how repeat litigation players, typically corporate litigants, are able to leverage the dull rules of court process to their advantage, effectively creating a caste of perpetual courthouse losers.³ Some commentators have argued that ordinary folks can beat the system through strategic use of “jurisdictional redundancy”—filing suit in the most hospitable court from among those with overlapping and concurrent power.⁴ Indeed, commentators also urge litigants to devise strategies that explicitly combine and coordinate adjudication in multiple fora, thereby drawing advantages from both state and federal courts.⁵ These arguments recognize that although forum shopping often smacks of gamesmanship, selecting an appropriate judicial forum also can promote litigant autonomy and serve regulatory goals.⁶ Indeed, the ability to forum shop is baked into the American legal system as a longstanding practice with roots in federalism and Article III of the Constitution.⁷

Yet in the nearly half century since Galanter published his article, a funny thing has happened on the way to the judicial forum.⁸ Corporate litigants have come to enjoy a distinct advantage in deploying jurisdictional redundancy, repeatedly defeating the forum choices of their opponents. Consider three routine scenarios. Suppose a worker files suit in state court, alleging that a corporate employer has violated federal labor and employment law. The corporate defendant predictably will remove the action to federal court (where the judge may well dismiss the complaint as conclusory under prevailing interpretations of the Federal Rules of Civil Procedure). Alternatively, the corporate defendant may move the federal court to abstain and defer to the jurisdiction of an administrative agency (where the lawsuit likely will take a back seat to a protracted rulemaking proceeding, if the agency considers the issue at all). Suppose, instead, that the worker initially files in federal court. Now the corporate defendant can be expected to move to compel arbitration (where the claim will be decided behind closed doors).

Each of these situations turns on the corporate party’s strategic use of jurisdictional rules, not so much to be in a particular forum, but rather to achieve a predictable substantive goal: circumventing a hearing on the merits and blocking the claimant’s shot at redress. Jurisdictional maneuvering drives up the transaction costs of litigation and can facilitate a significant wealth transfer to the corporate defendant.⁹ Such maneuvering compels plaintiffs to absorb the financial and psychic loss caused by the corporation’s alleged wrongdoing, and it generates demoralization costs along the way.¹⁰ Damaging consequences such as these are not just confined to the private parties. Rather, these jurisdictional decisions serve to chip away at regulatory laws that the corporation would prefer to avoid wholesale (but which, at least for now, continue to be immune from constitutional challenge under the precarious New Deal equilibrium).¹¹ Thus, while regulatory statutes remain on the books, corporations enlist the courts in a practice of nonenforcement or diminished enforcement. This practice insidiously promotes deregulatory efforts to hollow out laws intended to constrain markets, protect the environment, and combat discrimination against marginalized groups, including those facing discrimination on the basis of race, ethnicity, sex, gender and gender identity, and sexual orientation.¹² Outside the courthouse, the same corporations, allied with likeminded business groups and professional organizations, enhance their jurisdictional advantage by leveraging their resources to encourage the appointment of Article III judges who, sharing their worldview and ideological perspective, carry forward this regime.¹³

This Article describes a set of jurisdictional doctrines that consistently disfavor the litigation options of less-resourced parties—persons with limited bargaining power, financial resources, or market clout—who find themselves locked out of court because of arbitration, locked into federal court because of removal jurisdiction, or tossed out of federal court because of administrative primary jurisdiction.¹⁴ These doctrines favor corporate interests in forum choice, delay, and avoiding adjudication on the merits. We call this phenomenon jurisdictional abuse because, as we explain, we see courts’ acceptance and even encouragement of the practice as an abuse of democratic values and as a threat to democratic governance. In elaborating the doctrines that define jurisdictional abuse, our focus is not on traditional questions about the limits of subject matter jurisdiction—about the constraints that the Constitution and statutes interpreting it place on federal courts’ power to hear claims—although we engage with the values that ought to animate subject matter jurisdiction.¹⁵ Nor is our focus on personal jurisdiction and the evolving doctrines and issues concerning where corporations may be haled into court—although, again, the Article implicates the democratic significance of these rules.¹⁶ Instead, we focus on a series of ways that the federal courts, reading statutes or deploying prudential doctrines, have expanded or contracted their subject matter jurisdiction to hear and adjudicate claims in ways pushed for by corporate parties. As corporations have sought to manipulate jurisdiction, federal courts have facilitated their efforts with creative and often strained doctrinal analyses.¹⁷ Federal courts have not been uniform in allowing these tactics, but the trend line clearly evinces a wide-ranging judicial acceptance of them.¹⁸ Our effort is thus to connect a series of doctrinal shifts—some of which will be familiar to scholars of procedure and aspects of which have been explored in isolation by scholars. By linking them together, we reveal the larger architecture of the pro-corporate turn in jurisdiction, generalize about its causes, place it in historical context as a procedural inflection point, and draw sharper normative conclusions about its relationship to processes of democratic decline in the United States.

Jurisdictional abuse today has important precursors that aid in making sense of the practice and situate it in a dynamic story of jurisdiction and corporate power. Indeed, this is not the first inflection point where federal courts have substantially transformed their jurisdictional doctrines to favor corporate interests. At the turn of the twentieth century, federal court jurisdiction was implicated in the struggle over corporate power and the advent of the modern regulatory state. As part of a strategy of economic nationalism focused on fostering the growth of large-scale enterprises and resisting regulatory policies at the state and federal level, legislators and judges expanded the power of the federal courts to hear cases involving corporations—facilitating efforts of corporations to remove cases out of state courts and into federal courts perceived to be “‘forums of order’ for national commercial interests.”¹⁹ The strategy paid off in the years to come as the federal judiciary issued a series of decisions promoting economic nationalism and overturning regulatory enactments.²⁰ This history prompted 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.”²¹

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 at the time largely failed in the constitutional confrontation of the New Deal. The New Deal was characterized by an effort to rein in excessive economic power and fight against oligarchy—that is, economic power translating into political power and undermining democracy—by passing a series of regulations governing the marketplace, protecting workers, and safeguarding the environment.²² The Supreme Court ultimately upheld landmark pieces of New Deal legislation, ushering in the modern regulatory state.

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 outsize—role in making regulatory governance function: Congress has placed hundreds of private rights of action in a bevy of regulatory statutes over the past seventy-five years.²³ And states, likewise, have enacted state-specific laws allowing citizens to bring suit.²⁴ Under the banner of efficiency, business interests have sought to defang the regulatory state by securing changes to procedure, both to the rules of practice and to their interpretation by the courts, that make it more difficult for plaintiffs to enforce statutory protections. These efforts, although defended as neutral and apolitical, have resulted in the “corporatization of procedure,” to borrow from J. Maria Glover,²⁵ and are used instrumentally to promote business interests.²⁶ As scholars have explored in various areas, procedure has provided both a shield and a sword for corporate defendants to block regulatory enforcement.²⁷

This Article argues that jurisdictional abuse is an important yet insufficiently acknowledged part of this evolving, modern backlash against the regulatory state. It is also a story with nuance. Unlike the earlier economic nationalist struggle directed initially against state regulatory efforts and then against federal New Deal legislation, today’s pro-corporate jurisdictional shifts are not solely directed at expanding federal jurisdiction as a mode of resistance. The shifts are more dynamic. At times, Congress and the federal courts have expanded federal jurisdiction,²⁸ and at others, the federal courts have contracted jurisdiction even when statutes have remained the same.²⁹ The through line, however, is that the expansions and contractions track corporate interests in manipulating forum choice to gain advantages and to diminish the role of litigation, and thus of public law, in regulating their affairs.

And now, as before, what Frankfurter dubbed “dry jurisdictional and procedural problems” are implicated in something deeper—a modern struggle over oligarchy and democracy. Our core analytic claim is that the corporate abuse of jurisdiction is part of—and helps to shed light on the dynamics of—rising oligarchic conditions and democratic decline in the United States. The threat of oligarchy is that concentrated economic power bleeds into political power and undermines prospects for democratic self-government.³⁰ The threat is receiving renewed scholarly attention today, largely outside the realm of civil procedure.³¹ Procedure scholars have usefully explored various ways in which economic inequality has shaped and infects modern procedural evolutions.³² But the corporate transformation of procedure can also be embedded in a larger account of increasing oligarchic conditions.³³ We argue that federal courts’ doctrines and decisions sanctioning corporate efforts to manipulate subject matter 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. Today’s jurisdictional battles are part of a corporate effort to commandeer the state’s procedures for themselves precisely because procedure can determine whether laws on the books are or are not applied in ways that meaningfully regulate corporate affairs and protect the intended beneficiaries.

These efforts highlight that oligarchy is about the ability of the powerful to shape not only “substantive” policies, but also the procedures for implementing—and blocking—enforcement of those policies. In particular, corporations pushing for the construction of the oligarchic courthouse are engaging in what sociologists refer to as “opportunity hoarding”—the use of power to control public resources and to deploy them as a means of exploitation.³⁴ Such hoarding is part and parcel of how economic power translates into political power—of how oligarchy comes into shape—and can facilitate and reflect a broader process of democratic decline and deconsolidation. And when public resources do not usefully serve business interests, corporate parties seek to narrow the power of the state, to shrink the public realm, and to remit dispute resolution to a private forum such as arbitration that dilutes the force and efficacy of public regulation. The rise of the oligarchic courthouse shows how seemingly abstruse jurisdictional and procedural doctrines contribute to the consolidation of economic power through abuse of our public institutions, and so enlist the mechanisms of democracy toward anti-democratic ends.

But why would federal courts participate in this project? The oligarchic courthouse has been built in subtle and multifaceted ways over time, and the account we give is not a standard one of corporate forces capturing a public institution.³⁵ While the literature on institutional capture informs our thinking, the story we tell is more multilayered, dynamic, and attuned to the distinctive structural features of courts and adjudicative process. In particular, we explore a set of institutional, organizational, and cultural explanations for the rise of the oligarchic courthouse. Some of the explanations involve the role of legal organizations, with commitments that align with anti-regulatory corporate agendas, in shaping the views of judges and the bar. Others relate to the composition of the judiciary, including a longstanding practice—only now showing cracks—of favoring the appointment of Article III judges who come from corporate law backgrounds and may be more predisposed to view corporate claims favorably. A series of cultural factors also help to explain what might predispose judges to construct the oligarchic courthouse—including group identity, status affiliation, and relationship networks. And, finally, pro-corporate actors are able to leverage the institutional dynamics of court adjudication and procedural rulemaking to produce an information flow and narrative about litigation that may contribute to the pro-corporate turn in jurisdictional doctrine.

The rise of the oligarchic courthouse has troubling implications for democratic governance—and, indeed, can be nested in a larger account of democratic decline and erosion in the United States today. To critique the rise of the oligarchic courthouse and show its relationship to democratic decline, we first center jurisdiction in democracy in a way that departs from conventional accounts. In the late twentieth century, it was commonplace to valorize litigation as a private good and to criticize or disregard its worth as a public good. On this view, courts constituted a market offering services to businesses, and procedure was a technical mechanism best designed to achieve efficient results.³⁶ The approach gave little weight to the negative spillover effects of litigation on public life and effectively suppressed discussion of the democratic role of litigation and procedure within a political system.³⁷ After exploring the forces that helped build the oligarchic courthouse, this Article provides a democratic account of litigation by engaging with the argument that adjudication—and jurisdiction as a core aspect of it—is a political resource and that its accessibility can dynamically affect the possibilities for democratic contestation and mobilization. Having laid this foundation, we show how the rise of the oligarchic courthouse undermines jurisdiction as a political resource and can be understood as contributing to larger processes of democratic decline in the United States today by deepening concentrations of corporate power, exacerbating inequality, and undermining participatory capacity.

This Article proceeds in three Parts. Part I sketches out the doctrinal shifts in jurisdiction—arbitration, removal jurisdiction, and primary jurisdiction—that have promoted the interests of what Galanter a half century ago called the “haves.” Part II explains how these shifts contribute to the construction of the oligarchic courthouse and explores the factors contributing to its rise. Part III critiques the shifts, arguing that jurisdictional abuse erodes democracy. A brief Conclusion offers thoughts on what deconstructing the oligarchic courthouse and reconstructing it as a democratic courthouse might entail.

I. Jurisdictional Shifts

This Part forms the core of the Article’s descriptive inquiry, and it sketches out how federal courts are expanding and contracting their subject matter jurisdiction in ways that follow corporate interests and support an anti-regulatory agenda. In particular, this Part tracks three doctrinal shifts in jurisdiction. First, it focuses on how arbitration doctrine locks plaintiffs (usually workers, consumers, and small businesses) out of court. Second, it explores how removal locks less-resourced parties into federal court and out of state courts perceived to be friendlier to their claims. And third, it explains how primary jurisdiction decisions throw these claimants out of federal court in ways that serve to delay and obfuscate rather than further regulatory enforcement. The overall effect of these doctrinal shifts, slowly and in incremental steps, has been to support deregulatory efforts that narrow federal laws intended to protect workers, consumers, and the environment, and undercut principles of equality and inclusion embedded in anti-discrimination and other laws.

A. Lock Out: Arbitration

By now it is familiar fare that the Supreme Court has transformed the Federal Arbitration Act (FAA) into a coercive mechanism that allows corporate entities to avoid liability by locking claimants out of federal and state court—giving corporate parties a proverbial “get out of jail free” card, to borrow Judge Moore’s provocative description.³⁸ Indeed, the Congress that enacted the FAA in 1925 would not recognize the Court’s statute as its own.³⁹ The FAA was a narrow, tailored statute, borne of particular circumstances. Before the FAA, federal courts permitted parties who had agreed to arbitrate their disputes to “revoke” the agreement at any time before an arbitral award was issued.⁴⁰ Federal courts created this revocability doctrine to blunt concerns that rising arbitration among commercial parties might “oust” them of their jurisdiction.⁴¹ Congress passed the FAA to thwart federal courts from “jealous” protection of their jurisdiction and to ensure that they honored commercial parties’ agreements.⁴² The FAA also was part of a movement for procedural reform.⁴³ The framers of the FAA explicitly designed it not to apply to employment contracts in interstate commerce and they had consumer arbitration nowhere in mind in drafting the statute; it was designed and intended to promote the enforcement of commercial arbitration agreements.⁴⁴

Today, the Supreme Court and federal courts have expansively interpreted the FAA to allow corporations to “contract” out of federal and state jurisdiction in ways that are neither sanctioned nor envisioned by the FAA. The Court has interpreted the statute to compel workers, consumers, small businesses, and patients to be bound by adhesive contractual terms mandating arbitration, to restrict these often less-resourced parties from engaging in group or collective arbitral actions, and to limit the scope of permissible federal court appellate review of arbitral decisions.⁴⁵ To be sure, corporate parties are beginning to meet some resistance to these trends, as some claimants’ counsel bundle arbitral claims and file them in bulk, with each individual claim requiring the corporation to pay its portion of the arbitrator’s fee under some arbitration rules. Faced with rising transaction costs, corporate parties are rethinking their forum preferences by reneging on arbitral promises, trying to rewrite the rules of arbitration, and seeking to compel litigation in federal court.⁴⁶

1. “Contracting” Around Court Jurisdiction

The Court’s atextual, and in our view, anti-democratic, transformation of the FAA departs sharply from Congress’s design of the statute, the FAA’s primary goal, and its initial, more faithful judicial interpretation. Current doctrine negatively impacts the rights of employees, consumers, and other less-resourced parties who are hampered in enforcing legitimate statutory claims in court. But the Court’s doctrine also produces perverse and negative effects on the Article III system itself. The FAA was never intended to deprive federal courts so sweepingly of adjudicative power. Indeed, at the time of the statute’s enactment and for decades to come, the statute was interpreted to preserve significant aspects of federal court jurisdiction, especially where questions of the interpretation of public law and deep power disparities were involved.⁴⁷

This emphasis on courts’ retaining jurisdiction is baked into the FAA itself. While the statute directs federal courts to enforce arbitration agreements and had commercial agreements in mind, Section 1 of the statute excepts those agreements involving employees in interstate commerce.⁴⁸ The framers of the FAA thus preserved federal court jurisdiction for employment disputes because they worried that workers would be compelled to accept take-it-or-leave-it arbitration clauses as a condition of employment and would therefore lose the benefits and protections of public process.⁴⁹

The emphasis on retaining jurisdiction also animated the Supreme Court’s earlier decisions involving statutory enforcement claims. In Wilko v. Swan, the Court declined to enforce an arbitration provision governing a Securities Act claim because the statute “was drafted with an eye to the disadvantages under which buyers [of securities] labor”; arbitral awards, unlike judicial ones, could be issued without explanation or the right to appeal the arbitrator’s “conception of the legal meaning of . . . statutory requirements.”⁵⁰ The Court also noted that a securities buyer would be giving up a wider choice of courts and venue and that arbitrators may not have the “judicial instruction on the law” possessed by judges.⁵¹ It thus concluded that the “protective provisions of the Securities Act require the exercise of judicial direction to fairly assure their effectiveness.”⁵² As Judith Resnik put it, in Wilko “[t]he arbitrator as dispute resolver was posited as a potential hazard to the state, as lawmaker.”⁵³

This view continued in Alexander v. Gardner-Denver Co., where the Court held that an employee’s statutory right to bring a Title VII claim alleging workplace discrimination was not foreclosed by previously submitting the claim to grievance arbitration under a collective bargaining agreement’s nondiscrimination clause.⁵⁴ The Court once again focused on the significance of having federal judges apply and interpret the statute.⁵⁵ It stressed both the important role played by civil litigants in developing anti-discrimination law and the fact that judges were better suited than arbitrators to resolve statutory and constitutional issues “whose broad language frequently can be given meaning only by reference to public law concepts.”⁵⁶

In the 1980s, however, the Court did an about-face and began to endorse arguments put forward by corporate litigants that radically revised the FAA. Through strained statutory interpretation, the Court relinquished federal and state courts’ power to hear a sea of claims involving workers and arising under federal regulatory statutes governing broad swaths of American life. In a foundational departure, the Court read general arbitration clauses to encompass not only claims sounding in contract, but also those involving federal and state statutes.⁵⁷ As it increasingly allowed the arbitration of statutory claims, the Court erased from its decisions any notion that federal jurisdiction protected less powerful parties or was important to public law development,⁵⁸ first casting doubt on Wilko’s reasoning and ultimately effectively overruling it.⁵⁹ As part of this trend, the Court liberally enforced arbitration clauses involving consumer and antitrust regulatory issues.⁶⁰ It did so in part by reading atop the FAA a “liberal federal policy favoring arbitration” and celebrating what it dubbed the flexibility and informality of arbitration as a contractual choice.⁶¹ These efforts have led to arbitration clauses becoming ubiquitous across core sectors of the economy, but the notion that contractual choice justifies the turn to arbitration is belied by the fact that arbitration clauses are frequently embedded in contracts of adhesion and other documents that do not reflect a “meeting of the minds.”⁶² Further tilting the needle towards arbitration and away from court jurisdiction, the Court has directed that arbitrators themselves resolve contractual ambiguities about whether arbitration was intended, and that they generally resolve any doubts about the “agreement” in favor of arbitration.⁶³

And, against the text and history of Section 1 of the FAA and its restrictions involving employment contracts, the Court concluded in 2001 that the section prohibits federal courts only from enforcing arbitration agreements involving transportation workers, thus narrowing the ability of courts to hear claims arising from employment relationships.⁶⁴ At the time the Court ruled, a small fraction of nonunionized, private sector employees were bound by arbitration clauses—about a quarter.⁶⁵ By 2018, approximately 60% of such employees were bound by arbitration clauses, and by 2024, it is projected that 80% will be.⁶⁶

2. Aggregate Litigation and Restricted Judicial Power

Even as it abdicated federal jurisdiction in favor of arbitral power, the Court made it tougher for less-resourced parties to receive redress through arbitration. Again, the Court’s interpretive move was procedural in form but predictable in its substantive consequence: interpreting the FAA in ways that depress the ability of claimants—which typically include workers, consumers, patients, and small businesses—to combine together to bring regulatory actions as a group.

Consider AT&T Mobility LLC v. Concepcion, where the Court held that the FAA preempted a California unconscionability doctrine.⁶⁷ California courts had found that when class action waivers existed in certain adhesion contracts involving small amounts of damages, unequal bargaining power, and large numbers of harmed consumers, the waivers may be unconscionable and that California courts therefore should not enforce them and instead leave open the option of class-wide arbitration.⁶⁸ The Court held that the FAA preempted this doctrine because “[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.”⁶⁹ For the Court, arbitration’s attributes were ones of flexibility and informality, and aggregate proceedings impermissibly interfered with those attributes.⁷⁰ But, as the dissent argued, class-wide arbitration was neither inconsistent with the FAA nor unworkable, and the real impact of the decision would be to make it incredibly difficult for plaintiffs with small claims to get lawyers and proceed in arbitration.⁷¹ California’s unconscionability doctrine was an example of a state court preserving some of its jurisdiction and power of review: the doctrine maintained that certain unconscionable contracts banning aggregate dispute resolution should not be enforced and that the claim should proceed in aggregate form. The Court’s reading of the FAA to preempt the doctrine both limits the power of state courts and legislatures to supervise arbitration and augments the power of federal courts to find that the FAA preempts state efforts to regulate arbitration and preserve judicial power in certain contexts.

Two other cases follow the trend. In American Express Co. v. Italian Colors Restaurant, the Supreme Court enforced an arbitration clause banning class-wide proceedings where an expert had opined that the cost of the plaintiff’s proceeding on its own in arbitration would exceed any recovery it would receive by at least ten times,⁷² making individual arbitration, in the words of Justice Kagan, “a fool’s errand.”⁷³ And, in Epic Systems Corp. v. Lewis, the Court held that arbitration clauses banning aggregate litigation or arbitration did not conflict with the provisions of the National Labor Relations Act protecting the right of workers “to engage in . . . concerted activities” for their “mutual aid or protection.”⁷⁴ The Court so held against a history of viewing forms of collective worker action—whether petitioning Congress, making pleas to the media, or bringing lawsuits or other public claims—as encompassed within the statute’s protections.⁷⁵ Both of these cases bear upon the power and jurisdiction of courts. Italian Colors limits the ability of federal and state courts to inquire into whether arbitration clauses make dispute resolution practicably unworkable for the parties, further shrinking their role in supervising arbitration. And Epic Systems limits the ability of federal and state courts and arbitrators to hear collective claims protected by federal labor law.

3. Winnowing Appellate Jurisdiction

The Court has also winnowed the jurisdiction of federal courts to review arbitral awards. Arbitration is a largely private process, and its proceedings, and results, are closed to the public. Arbitrators do not publish their decisions on Westlaw or Lexis; in the usual situation, counsel for consumers or employees do not know how arbitrators cash out the value of particular kinds of claims. Instead, as Cynthia Estlund has put it, mandatory arbitration is a “black hole,” lacking the transparency and publicity that are hallmarks of public process.⁷⁶ The Supreme Court has heightened the secrecy that surrounds arbitration, and, again, has done so by narrowing jurisdiction—in this situation, appellate jurisdiction—even when parties explicitly seek federal review. In Hall Street Associates v. Mattel, the Court considered whether the parties could contract to allow a court to vacate, modify, or correct an award where the arbitrator’s conclusions of law were erroneous.⁷⁷ Section 10 of the FAA lists several, quite limited, bases—such as corruption and fraud—for a court to vacate, modify, or correct an arbitral award.⁷⁸ The question in the case was whether those bases were exclusive or whether the parties, since arbitration was a matter of contract, could choose other bases for federal court appellate review.⁷⁹ While the statute nowhere precluded such review by federal courts, the Court read the statute in a strained way: It held that the bases in Section 10 for vacating an arbitral award were exclusive and that appellate review was confined to those bases.⁸⁰

By effect, Hall Street read the FAA to restrict contractual autonomy while enlarging the private sphere and insulating it from public scrutiny. In doing so, the Court removed from Article III courts the power to shine some light into the black hole of arbitration through the exercise of appellate review. Because the grounds listed in Section 10 are so limited, arbitral awards that stray far from the meaning or commands of public regulatory laws are protected from judicial scrutiny. Moreover, the Court suppressed litigant choice, notwithstanding the FAA’s silence, in cases in which choice would afford judges and public process a greater role in overseeing arbitral decisions. The case thus shows how corporate actors seek not only to control public process but also to dismantle or enervate it, substituting privatized procedures that better serve their interests at the expense of public values. Federal circuit courts are now split over whether an arbitrator’s manifest disregard for the law—including disregard of laws that protect workers and consumers—is a permissible ground for vacating, modifying, or correcting an award.⁸¹

* * *

One concern about the corporate push for arbitration has been that it is designed to suppress claims, not merely to shift them to private fora.⁸² This concern is magnified by the prominence of arbitration clauses in settings involving Black and Brown, female, and low-wage workers.⁸³ Although data are limited and not easily accessible, available information confirms that injured parties are less likely to arbitrate than they are to litigate—in part because of the difficulty of finding a lawyer in arbitration—meaning that contracting around jurisdiction can amount to contracting around liability.⁸⁴ The Court’s ban on aggregate mechanisms in arbitration has contributed to this process of claim suppression by decreasing lawyer incentives to provide representation. The result is that jurisdictional doctrines undermine the application and enforcement of regulatory law.

Recent trends suggest some push-back by segments of the bar. These attorneys are finding creative ways to design informal methods of aggregation that facilitate the filing of masses of individual arbitration claims, which at times enable them to represent thousands of plaintiffs individually.⁸⁵ And, true to form, corporate parties once again are attempting to take advantage of forum choice for their own benefit. Driven by calculations that court adjudication would be more favorable and less expensive than one-by-one arbitration often involving thousands of claims—even though one-by-one arbitration is what those corporate parties chose—these corporate actors are now attempting to weasel out of arbitration and get back into federal court.⁸⁶ While federal courts have not as of yet acquiesced in these efforts, the process of litigating these motions saps resources from plaintiffs and creates a system of delay and confusion.⁸⁷

B. Lock In: Removal

The arbitration cases illustrate ways in which corporate parties seek to restrict judicial power to hear claims when an alternative, private forum effectively sounds the death knell for many of those claims. But the manipulation of jurisdiction also involves the expansion or robust exercise of federal court power in ways that conform with the interests of corporate parties. Absent an arbitration clause, it has long been understood that defendants tend to prefer having their claims heard in federal court rather than state court.⁸⁸ Federal courts are thought to be less solicitous of plaintiffs’ claims than some state courts and federal courts’ procedures are in many instances more restrictive than those in state court.⁸⁹ Thus, in settings where arbitration clauses are absent, corporations have sought to remove actions filed in state court to federal court, effectively ending state courts’ authority to hear the claims. Under the federal removal statute, defendants may seek to remove a case to federal court so long as the federal courts have concurrent jurisdiction (with a few exceptions).⁹⁰ Plaintiffs may later seek to remand the case back to state court if the federal court lacks jurisdiction or the removal was defective in some way.⁹¹ Removal has been a battleground for jurisdictional power in numerous ways and has resulted in various adverse outcomes for plaintiffs.

1. Fraudulent and Erroneous Removal

Consider first fraudulent and erroneous removal. Fraudulent removal “occurs when a removing defendant’s assertion of federal jurisdiction is made in bad faith or is wholly insubstantial.”⁹² For example, after a plaintiff files a claim in state court, defendants have removed to federal court only to file a motion to dismiss arguing that the federal court lacks subject matter jurisdiction over the case.⁹³ While plaintiffs may seek to remand the case back to state court, and sometimes successfully do, the process cuts into time and resources.⁹⁴ Worse still, in some instances, the federal court dismisses the removed case rather than remanding it, effectively allowing the defendant to end the litigation even though removal was improper.⁹⁵

Fraudulent removal connects to a larger phenomenon of erroneous or dubious removal practices. Sometimes a defendant removes to federal court, apparently knowing that the forum lacks jurisdiction and that the case will likely be remanded, but does so strategically, in an effort to exhaust a weaker party. Theodore Eisenberg and Trevor Morrison studied this phenomenon of erroneous removal over a twenty-year period and found a growing tendency of defendants opting for the federal forum simply to “run up attorney fees and other costs, thus sapping the poorer party’s litigation resources and harming its bargaining position.”⁹⁶

Another questionable removal practice involves the federal officer removal statute. The statute liberally allows the United States, any federal agency, or “any officer (or any other person acting under that officer) of the United States or of any agency” to remove an action to federal court.⁹⁷ Importantly, a federal officer may remove even when the only federal issue involved in the litigation is a federal defense. This standard deviates from the regular rule that federal court jurisdiction must be evident from the face of the plaintiff’s well-pleaded complaint and not based on a defense.⁹⁸ Corporate defendants have jumped on the “acting under” language to argue that they are covered by the statute—namely, they claim in various instances that they are so heavily regulated and directed by government agencies that they “act under” agency authority.⁹⁹ And while many courts have rejected such claims, various federal district courts have permitted corporate defendants to remove their actions to federal court under the statute.¹⁰⁰ Moreover, the Supreme Court has made it advantageous for corporate defendants to seek removal under the federal officer statute, since that basis for jurisdiction allows for appellate review not otherwise available when cases removed under the general removal statute are remanded, and the Court has read the officer removal statute broadly, permitting review of all bases of removal jurisdiction set out in the order.¹⁰¹

2. Snap Removal

“Snap” removal is yet another significant instance of corporate defendants manipulating forum choice. These defendants are able to do so because of their superior litigation resources and because courts allow them to deploy those resources in ways that are incompatible with the purposes of a specific jurisdictional grant. Typically, if a plaintiff brings an action in state court and a defendant is a citizen of that state, the defendant may not remove to federal court if the basis of removal is that the federal court has diversity jurisdiction.¹⁰² The federal removal statute clearly states, “A civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”¹⁰³ The logic is that federal courts exercise diversity jurisdiction to ward against local bias, but when a defendant is a citizen of the state in which the plaintiff has brought suit, such concerns are absent and the constitutional basis for removal is not present.¹⁰⁴

Defendants, however, have jumped on the “properly joined and served” language to make creative—and often successful—arguments to get around the statute and remove local state cases to federal court. As various commentators have explained, the language was added to stop plaintiffs in state court from joining but never serving a nominal defendant who is a citizen of the forum-state, thus blocking an out-of-state defendant who is the real party-in-interest from being able to remove the action on the basis of diversity jurisdiction.¹⁰⁵ However, corporate defendants who are in-state defendants and real parties-in-interest have the resources to learn about a lawsuit—largely by monitoring electronic state dockets—even before they have been served. Then, these defendants have increasingly filed their notice of removal in the period between filing and service.¹⁰⁶ The argument is that removal is permissible because they have not yet been “properly joined and served.” This practice of “snap” removal permits local defendants to remove on the basis of diversity jurisdiction, even though the case was filed in their local state court in a state where they are a citizen and the statute plainly bars their entry into federal court.

Many judges have adopted a wooden interpretation of the statute and permitted the practice, concluding that technically, the forum defendant, having not yet been served, could remove, even though, had that party been served, the provision would prohibit removal.¹⁰⁷ Other judges, however, have found that this interpretation goes against the purposes of diversity jurisdiction and facilitates the kind of gamesmanship the statutory provision was drafted to avoid.¹⁰⁸ The practice, however, has been allowed by an increasing number of federal courts, and the most recent study found that defendants who pursue snap removal succeed approximately 90% of the time in removing the cases.¹⁰⁹ The study shows that the practice is becoming more prevalent, is almost always used by in-state corporate defendants in suits brought by individual plaintiffs, and that it “increases existing asymmetries between litigants with economic resources and legal sophistication and those without.”¹¹⁰

3. Waiver of Removal and Remand

It is also worth briefly mentioning waiver as it relates to forum choice and a party’s strategic use of jurisdiction. Under judge-made doctrines, defendants can waive their rights to remove cases to federal court, just as plaintiffs can waive their rights to remand those cases back to state court.¹¹¹ A recent study by Joan Steinman compared the doctrines governing defendants’ waiver of the right to remove and plaintiffs’ waiver of the right to remand to analyze whether there was parity and consistency.¹¹² There was not. Steinman found that the doctrines substantially favor defendants, making it much harder for them to waive their right to remove and much easier for plaintiffs to waive their right to remand.¹¹³ This asymmetrical approach to waiver means that it is easier for defendants to veto plaintiffs’ choice of a state court and to keep a lawsuit in federal court than it is for plaintiffs to resist defendants’ relocation of the action from state court to federal court. Steinman’s study concludes that “courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues.”¹¹⁴

* * *

These removal practices result in increasing costs and delays for plaintiffs, exacting a toll on those plaintiffs without the resources or wherewithal to withstand jurisdictional gamesmanship. These practices also affect the merits (or the inability of a plaintiff to reach the merits and so obtain judicial redress). Significantly, plaintiffs have higher loss rates in removed cases than they do in cases filed as an original matter in federal court.¹¹⁵ Leading empirical studies (from 1998 and 2002, but showing trends over a thirty-year period) support the anecdotal view that forum choice matters to case resolution and that removal provides corporate defendants with a more favorable forum; they also suggest “the possibility of increasing abuse of removal as a forum-selection device.”¹¹⁶ Indeed, in a more recent study, Zachary D. Clopton has coined the phrase “catch and kill jurisdiction” to describe the general phenomenon of parties removing cases to federal courts where judges are “willing and able to expand federal jurisdiction,” are potentially “hostile to a class of litigation or litigants,” and—after asserting jurisdiction—are able effectively to “kill” the claim.¹¹⁷

These removal practices, when they involve statutory claims, contribute to a regime of nonenforcement and diminished enforcement in which regulatory protections are slowly gutted through the steady accretion of precedent dismissing cases even when the basis for dismissal is unrelated to the merits.¹¹⁸ Removal of state law claims produces comparable effects on state regulatory authority, as shown by parallel experience under the Class Action Fairness Act of 2005 (CAFA).¹¹⁹ Despite a sustained effort to abolish diversity jurisdiction in the 1960s through the 1980s,¹²⁰ CAFA opened up a federal forum to certain state law class actions on a theory of minimal diversity.¹²¹ By expanding the scope of diversity jurisdiction, CAFA effectively shifted state law class actions to federal judges notwithstanding their comparative disadvantage relative to state judges in interpreting and applying state law and their purported lack of authority to create choice-of-law rules in diversity actions.¹²² At the time, leading CAFA skeptics predicted the statute would gut state regulatory power;¹²³ Samuel Issacharoff and Catherine M. Sharkey posited “it [was] difficult to avoid the conclusion that” CAFA’s provision of a federal forum for state law class actions “was designed to offer absolution to potential defendants in what are termed ‘negative value’ class actions, such as consumer cases.”¹²⁴ Not surprisingly, today, commentators speak of the “hollowed out” common law that CAFA’s federalization of state class actions has produced and its broader effect in narrowing litigation as a public good.¹²⁵

C. Throw Out: Primary Jurisdiction

Our final example is that of primary jurisdiction, which involves federal courts’ relinquishing—in theory only temporarily—their jurisdiction in favor of an administrative agency. Primary jurisdiction, initially devised as a narrow, discretionary abstention doctrine, permits a federal court to stay or dismiss a case without prejudice to allow an administrative agency the opportunity to address an issue in the litigation when “enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”¹²⁶ The doctrine arose in rate-setting and labor disputes, where referring the issue to a federal agency was justified either by the agency’s exclusive authority over the issues in the litigation or a strong demand for the agency to answer the question to provide regulatory stability and coherence.¹²⁷ Today, primary jurisdiction is an emergent terrain for corporate entities to manipulate forum choice, drive up the costs of redressing claims, delay or derail litigation, and opt in favor of a decisionmaker likely to be more favorable to business interests, even on issues outside administrative expertise.

1. Palmer and State Law

Palmer v. Amazon is a prime example.¹²⁸ Plaintiffs were employees at an Amazon warehouse in New York City—larger than fourteen football fields and one of the largest in the nation—and their family members.¹²⁹ In June 2020, they brought claims arising from Amazon’s failure to comply with New York state nuisance and health and safety law in responding to the COVID-19 pandemic,¹³⁰ including a violation of Amazon’s duty under New York Labor Law § 200 to “provide reasonable and adequate protection to the lives, health and safety of all persons employed” at the facility.¹³¹ Given the serious risks of infection that COVID-19 presented, time was of the essence.¹³² Amazon sought to dismiss the claims, arguing that OSHA had primary jurisdiction over the matter. The district court granted the motion to dismiss, asserting that “courts are not expert in public health or workplace safety matters, and lack the training, expertise, and resources to oversee compliance with evolving industry guidance” and that the “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.”¹³³

The reading of primary jurisdiction asserted by Amazon and accepted by the district court is overly expansive and needlessly shrinks judicial power. First, this was not an area where OSHA had sought to regulate. OSHA both had not opined on and seemingly had no intent to opine on the workplace safety issues raised by plaintiffs.¹³⁴ While the agency supplied some guidance to workplaces with regard to COVID-19, it had not engaged in any rulemaking or given notice that it would. Referring the plaintiffs to OSHA thus made little sense. As one court put it in another case, “Common sense tells us that even when agency expertise would be helpful, a court should not invoke primary jurisdiction when the agency is aware of but has expressed no interest in the subject matter of the litigation.”¹³⁵

In addition, Palmer is about the meaning of state law, which should be interpreted by judges, not OSHA. Primary jurisdiction conventionally has provided a basis for abstention when federal courts must decide federal claims involving issues that Congress has committed to a federal agency.¹³⁶ However, courts have rightly been hesitant to apply the doctrine where the claims arise under state law.¹³⁷ The underlying federal statute empowering OSHA does not preempt state law claims or task OSHA with resolving state law workplace safety issues.¹³⁸ The workers’ claims against Amazon involved issues of state nuisance law, and the interpretation of those laws was squarely outside OSHA’s jurisdiction.¹³⁹ The district court’s invocation of the doctrine stretched the primary jurisdiction doctrine beyond any sensible limit and created needless delay—which is especially harmful in litigation arising during a pandemic and based on risks to workers’ health and safety.

The Second Circuit ultimately concluded that the district court improperly applied the doctrine.¹⁴⁰ In October 2022, the Second Circuit reasoned that the public nuisance claims in the suit were squarely within the district court’s competence and that OSHA’s expertise would not materially aid the resolution of the plaintiffs’ claims.¹⁴¹ But even this helpful intervention in some way proves the point about the dangers of primary jurisdiction as it is applied today: the Second Circuit’s ruling came nearly two and a half years after the plaintiffs filed their complaint, a significant period of time during which their state law claims were left unaddressed as the pandemic roared on and workers were left unprotected against a potentially fatal virus.¹⁴² The elongated process of litigating primary jurisdiction claims can lead to delay and frustration for plaintiffs. Furthermore, concerns about casting plaintiffs off to agencies not only implicate forum choice but also implicate the merits, given a political context in which agencies are arguably less responsive to public claims-making by beneficiaries of regulatory statutes and in some contexts are actively working to undermine their own statutory mandates.¹⁴³

2. “Circumforaneous Litigants”

Palmer both reflects and draws from a larger history of corporations seeking to expand primary jurisdiction well beyond its initial confines in order to affect substantive outcomes. In various cases, including some sanctioned by the Supreme Court, federal courts have relied upon the doctrine to permit an agency to offer advice on an issue that is tangential to the case—as in one case where the Supreme Court permitted referral to an agency to see if there was a violation of the rules of the Commodity Exchange Act that might bear upon the antitrust claims in the case.¹⁴⁴ In dissent, Justice Marshall questioned why the federal district court should “stay its hand pending action by an agency which in all likelihood lacks the statutory power to resolve an issue in the lawsuit” and reasoned that “[a]n agency cannot have primary jurisdiction over a dispute when it probably lacks jurisdiction in the first place.”¹⁴⁵ Put otherwise, the case was about the Sherman Act, which the Court was well-positioned to interpret, not the Commodity Exchange Act.

Justice Marshall expressed concern, presciently, about the consequences of liberally dispatching plaintiffs to agencies that often had no obligation or even authority to respond to their claims. Among his concerns were situations “[w]here the plaintiff has no means of invoking agency jurisdiction, where the agency rules do not guarantee the plaintiff a means of participation in the administrative proceedings, and where the likelihood of a meaningful agency input into the judicial process is remote.”¹⁴⁶ Yet federal courts, responding to motions made by corporations, abstain in favor of primary jurisdiction in precisely these situations. In various cases arising under California food-labeling law, for example, courts have invoked primary jurisdiction to dismiss or stay proceedings, sending plaintiffs off to the Food and Drug Administration, which has declined to respond to their inquiries.¹⁴⁷ In other cases, referrals have been made when the agency had no mechanism permitting a party to raise the issue, was not authorized to resolve the issue, or where the issue was not necessary or substantially relevant to resolving the claim.¹⁴⁸ Corporate use of primary jurisdiction as a forum-shopping strategy is still an emergent trend, and it is too soon to know whether the maneuver’s main effects will be a delay in securing relief, a dismissal of claims, or an overall chilling of the filing of claims. Certainly, the doctrine can drain plaintiffs of resources and even end claims altogether. The circuit courts are divided on the doctrine’s use; one federal court of appeals pointedly stated that the doctrine “‘has created a confused class of circumforaneous litigants, wandering perplexedly from forum to forum in search of remediation.’”¹⁴⁹

* * *

Primary jurisdiction began as a doctrine about expertise and authority. But without a showing that abstention will promote regulatory goals, a court’s reliance on the doctrine allows corporate parties to delay case disposition, drive up costs, and undermine statutory protection.¹⁵⁰ The costs of the delays for plaintiffs are significant. In some cases, litigants have been delayed from pursuing their actions in federal court for five or even ten years.¹⁵¹ In other instances, defendants have used the delay created by the doctrine to seek changes in the law that have mooted the litigation.¹⁵² Even dismissals without prejudice pose the risk to plaintiffs that a claim will become time barred.¹⁵³ And from the public’s perspective, federal courts’ temporary abandonment of jurisdiction is another lost opportunity to enforce federal law, contributing further to a deregulatory campaign to undermine existing federal law.¹⁵⁴

II. Constructing the Oligarchic Courthouse

How did these doctrinal jurisdictional shifts come to be, and what should one make of them together? In one sense, it is surprising that federal judges have acquiesced in, let alone supported, a corporate project to transform their subject matter jurisdiction. Federal judges enjoy political independence, professional prestige, and financial protection. As such, scholars generally view them as invulnerable to, or at least insulated from, raw forms of capture associated with administrative agencies and other non-Article-III decisionmakers.¹⁵⁵ Nevertheless, over time a set of jurisdictional practices has developed that constitute the infrastructure and circuitry of what we dub the oligarchic courthouse—a legalized system that, we argue, encourages economic and political concentration, thwarts democratic decisionmaking, and tilts in favor of market deregulation and against statutory protection of less-resourced persons. This Part connects these jurisdictional trends to earlier struggles over jurisdiction, describes the current form of the oligarchic courthouse, and explores factors exogenous to courts that have contributed to its rise and magnified its dangers to democratic life.

A. Early Foundations: Jurisdiction and the Struggle Against Oligarchy

The history of parties seeking to control forum choice is as old as the federal courts. However, the current moment of jurisdictional transformation perhaps has its closest analogue in the expansion of federal court jurisdiction at the turn of the twentieth century. At that time, jurisdiction came to be at the center of a struggle over corporate power and regulation that prompted a constitutional confrontation over oligarchy and democracy, in an episode that lays the foundations for understanding the rise of the oligarchic courthouse today.

Then, as corporations sought to cement their place in a national economy and to resist regulatory pressures, jurisdiction became a battleground for keeping claims out of state courts. And then, as now, federal courts adapted their jurisdictional practices to serve corporate interests. As part of a larger strategy of growing the national economy and resisting state and federal regulatory interventions, Congress passed a series of removal statutes in the decades after the Civil War, seeking to redirect litigation involving corporations into the federal courts.¹⁵⁶ Federal judges interpreted the laws broadly, as historian Howard Gillman has written, to “authorize the removal into federal courts of any case that raised an issue of federal law or that otherwise fell within the federal judiciary’s Article III jurisdiction (such as diversity jurisdiction).”¹⁵⁷

Scholars have connected these efforts to a larger Republican Party focus on economic nationalism—what Gillman has characterized as a “‘preoccupation with the defense of property’ and ‘economic respectability’ for large-scale enterprise[s],” driven by a vision of building a national capitalist market largely free from regulatory control.¹⁵⁸ Republican leaders sought to enlist federal courts in promoting economic nationalism by “redirect[ing] civil litigation involving national commercial interests out of state courts and into the federal judiciary,” believing that the federal courts would be “‘forums of order’ for national commercial interests seeking a hearing free from the interests and perspectives that dominated state proceedings.”¹⁵⁹

To achieve this nationalist goal, Republicans thus sought to enlarge the federal courts’ jurisdiction by expanding removal jurisdiction and vesting federal question jurisdiction. They also sought to staff the courts “with judges who were ideologically sympathetic to this new mission.”¹⁶⁰ They favored judges with “social and professional backgrounds [that] disposed them towards the viewpoints advocated by corporations.”¹⁶¹ As Edward Purcell’s research has confirmed, Republican appointees in the aftermath of the Civil War were “a remarkably similar, if not insular, social group” and were connected to “powerful political and economic actors” who were “[t]rained and experienced at the bar, steeped in the revered common law, and coming largely from the ranks of the corporate elite.”¹⁶²

Diversity jurisdiction also played a role in this project. In a national economy that increasingly exposed plaintiffs to wide-ranging corporate harms, diversity jurisdiction that treated corporations as citizens of their state of charter meant that plaintiffs were very often citizens of different states from corporate defendants.¹⁶³ This permitted corporate defendants to remove state actions liberally to federal court. This ability to remove was especially useful because at the time federal courts were considered more expensive and less convenient for plaintiffs; under the regime of Swift v. Tyson, their jurisdiction also provided a source for creating alternative rules of decision to those of the state courts.¹⁶⁴ Diversity jurisdiction and removal doctrines thus enabled corporations to, in the words of William Jennings Bryan, “[seek] shelter” in federal courts from state common law rules that were not at the time treated as law applicable in the federal courts.¹⁶⁵ And, for some time, corporations were able to secure favorable general common law decisions in federal court, with the “judiciary articulat[ing] legal principles that were consistent with the promotion of a more unfettered national market.”¹⁶⁶ The enactment of “arising under” jurisdiction in the last quarter of the nineteenth century facilitated access to federal courts both as an original matter and on removal from state court. In turn, this doctrinal development provided corporations challenging state regulatory enactments governing the workplace and marketplace with a sympathetic forum, and led to the well-known Populist and Progressive criticisms of the Article III judiciary.¹⁶⁷

Lochner is the familiar shorthand to describe the ensuing confrontation between the Court’s corporate-protective doctrines and the Constitution—a confrontation that came to a head in the New Deal.¹⁶⁸ As William Forbath and Joseph Fishkin show in a magisterial book, The Anti-Oligarchy Constitution, this confrontation was in large part about oligarchy—about how powerful economic actors had amassed great political power, principally in and through the courts, and about resisting and rebalancing power through the legislative process.¹⁶⁹ The exercise of jurisdiction enabled federal courts to protect corporate interests by overturning regulatory laws that would provide some measure of economic security for workers and consumers who regularly dealt with corporations.¹⁷⁰ While the Republican project to instantiate large-scale enterprises in U.S. life largely succeeded,¹⁷¹ in the clash of the New Deal, the Court ultimately turned away from its deregulatory project and upheld a series of regulatory actions—including the National Labor Relations Act, Social Security Act, and Fair Labor Standards Act.¹⁷²

B. The Rise of the Oligarchic Courthouse Today

Constitutional scholars speak of the New Deal “settlement,” in which the Article III courts have come to defer to Congress’s exercise of its Article I powers in the economic sphere, largely upholding regulatory legislation as valid exercises of the federal commerce power.¹⁷³ However, the corporate struggle against regulation never died. To the contrary, courts and rules of procedure have remained a battleground as corporate actors have continued to resist laws aimed at curbing their power over workers, consumers, and the environment. Not surprisingly, corporate actors have resorted to new strategies and reinvigorated older approaches to regain any advantage they thought they had lost. In that effort, corporate resistance has reached a new inflection point through the practice of jurisdictional abuse.

Jurisdiction has centered in corporate anti-regulatory efforts in part because of the prominence of litigation in regulatory enforcement today. Congress and state legislatures have passed a multitude of laws regulating the workplace, environment, and marketplace, and have often at the same time invested the beneficiaries of those laws with procedural rights authorizing civil actions for enforcement and redress.¹⁷⁴ This system of private enforcement provoked a backlash—what Stephen Burbank and Sean Farhang have called a “campaign against private litigation as a tool of federal policymaking.”¹⁷⁵ This campaign was led by officials during the Reagan administration who had pro-corporate, “free”-market, and anti-regulatory commitments and initially sought to disarm private enforcement by passing legislation to tame the beast.¹⁷⁶ Although legislative efforts generally failed, the project secured important support from the federal judiciary, as an increasingly conservative Supreme Court reinterpreted long-standing procedural doctrines—including those governing pleading, standing, and class actions—in restrictive ways that have made it more difficult for the beneficiaries of federal law to maintain regulatory claims against corporate actors.¹⁷⁷

The backlash against regulatory enforcement litigation—of which the new phase of jurisdictional abuse is part—has its own pattern, constructed by courts and fueled by distinct yet overlapping interests. The effort is well-organized, well-funded, and epitomized by a memorandum prepared by future Justice Lewis Powell for the Chamber of Commerce in 1971, just before he assumed the bench, in which he argued that the American economic system was “under attack,” and the culprit was litigation by civil rights groups, labor unions, and nonprofits that needed to be reined in.¹⁷⁸ A half century later, caseload data support the view that the campaign has paid off in terms of declining plaintiff victories, endangered claims, the winnowing of class actions, and various procedural barriers to regulatory enforcement.¹⁷⁹

And the jurisdictional decisions we have explored, together with those involving other procedural rules and adjudicative trends, have begun to assume a disturbing shape—what we call the oligarchic courthouse. The oligarchic courthouse is one where the rules for litigation are designed by and favor the interests of powerful economic parties. It is one where a public institution and its practices and policies are transformed to meet private interests at the expense of public goals. The oligarchic courthouse, in addition, has a particular place among other institutions in democracy. Although it often stands not far from legislatures that have created regulatory laws involving judicial enforcement, the oligarchic courthouse is wired to make it more difficult for the public to enforce those laws and to make real their commands in economic and social life. The oligarchic courthouse is now a substantial work in progress, clad with more than scaffolding, and it has been rising steadily over the past half century.¹⁸⁰

The rise of the oligarchic courthouse in part reflects the magnitude of the jurisdictional shifts we have surveyed. Across three core areas of jurisdiction, we have described the extent to which corporations have succeeded in shifting claims out of court, shifting them to federal court, and punting them to agencies. The result is a jurisdictional doctrine that creates delay and confusion and can prematurely end litigation. The magnitude of these legal shifts connects them to the early twentieth-century example.¹⁸¹ Now, as then, the political influence of the ultra-wealthy and corporate actors is increasingly becoming apparent,¹⁸² as is the extent and nature of corporate concentration across various industries.¹⁸³ Similarly, we exist in a time where state capacity is used not only to further corporate interests, but also to narrow institutional paths for less-resourced individuals to contest the outsize influence of concentrated economic power on social and political life. Administrative law scholars have documented the extent to which agencies are closing their doors and undermining their mandates,¹⁸⁴ and scholars studying state courts have documented their participation in furthering economic and racial inequality and their solicitousness towards concentrated corporate interests.¹⁸⁵ Thus, while the story of courts and economic power is seemingly perennially complicated and very often troubling, our effort to demarcate this moment and connect it to an earlier one reflects the confluence of an array of forces in our institutions and shared life.

C. Factors Contributing to Its Rise

It is no surprise that corporate parties manipulate jurisdiction, seeking to redesign public rules to favor their interests; indeed, one would be surprised if it were otherwise. The question of why judges might participate in constructing the edifice of the oligarchic courthouse is a more complicated one. To answer the question, it is helpful to broaden the lens to consider the kinds of professional, institutional, and cultural forces that may have predisposed judges to accept corporate arguments and transform jurisdictional doctrines.

One answer relates to the organizational forces that translate political commitments into legal culture and influence decisionmaking.¹⁸⁶ As at the turn of the last century, Republicans today resist regulatory intervention as part of a pro-business agenda.¹⁸⁷ But one change has been the organizational channel for translating these ends into legal culture and doctrine. Today, conservative lawyers often affiliate with and organize themselves around the Federalist Society, which coordinates lawyers who share this worldview about markets and regulation while inculcating and nourishing the worldview among scholars, judges, and the media.¹⁸⁸ The Federalist Society thus functions as part of a larger “conservative agenda to reduce regulation and curtail civil litigation”¹⁸⁹ (or, to be precise, litigation on behalf of particular parties to enforce particular claims).¹⁹⁰ Its libertarian framing, emphasizing market freedom, personal autonomy, and meritocratic elitism, both attracts and arguably shapes legal decisionmakers who may be sympathetic to corporate efforts to transform jurisdictional doctrines in ways that construct an oligarchic courthouse favoring deregulation and supporting resource concentration.

The account, however, would be significantly incomplete if it focused only on the Republican Party’s side of the ledger. The oligarchic courthouse also can be understood as a byproduct of longstanding judicial appointment decisions by Democratic presidents and the Democratic Party. Until recently, Democratic presidents have followed Republican presidents in appointing federal judges who come primarily from the corporate bar and prosecutorial positions.¹⁹¹ There has been a dearth of judges on the federal district courts and courts of appeal who were plaintiff’s attorneys, public defenders, civil rights lawyers, or “poor people’s” lawyers before assuming the bench.¹⁹² Although President Biden’s judicial appointments have been more professionally diverse, the federal bench is still remarkably slanted toward business interests and will likely be for some time.¹⁹³ Judges who have spent their careers defending corporations may be more open to their views about the excesses of litigation, the benefits of privatization, and the value of forum choice in the federal courts. Similarly, many prosecutors leave their posts and go to law firms that represent corporate defendants and often know or expect that they will do so when they accept their positions as prosecutors.¹⁹⁴ Many are thus connected to the corporate defense bar, and these connections may also predispose them to be sympathetic to corporate claims-making.

The literature on agency capture provides a useful, albeit imperfect, analogue for understanding how judges with such backgrounds might be more disposed towards corporate efforts to transform jurisdiction. Courts are differently situated from agencies in various ways, including those we explored at the beginning of this Part relating to their life tenure and approach to resolving disputes. However, in the agency context, scholars have articulated a set of background forces that make regulators more susceptible to corporate claims, and those background forces also have some explanatory power in the judicial context. Scholars have focused on the cultural forces that dispose regulators to identify with regulated groups and view their claims sympathetically, including those related to group identification, status, and relationship networks.¹⁹⁵ Regulators may be disposed towards the views of regulated parties because they identify with them or view them as part of the same group, as having similar or high social status, and as operating within the same social networks as them. Group identity is a particularly important mechanism because membership in groups can help people organize their views about the world. Thus, a regulator who “identifies as an economically sophisticated steward of efficient financial markets will adopt different policy positions than someone who identifies as a defender of the ‘little guy’ against large, faceless corporations, even if both share the ultimate objective of increasing the economic welfare of ordinary people.”¹⁹⁶

Somewhat similar dynamics may help to explain judicial solicitude for corporate efforts to manipulate jurisdiction. Judges who hail from corporate practice have experience in the larger milieu of corporate counsel and may identify with corporate counsel as a group, may view other corporate counsel as being of high status, and likely have a roster of relationship networks both among corporate counsel and corporate actors. Similarly, prosecutors who have begun their legal careers at or plan to join corporate firms at a later point—as many prosecutors do upon leaving the government—may have similar forms of cultural affiliation, identifying as a matter of history or ambition with the corporate bar, especially as their peers go off to join corporate firms. In these ways, we can see how cultural context may predispose judges to view arguments made by corporate claimants favorably.

The agency capture literature provides another useful angle for explaining the success of the corporate effort to create an oligarchic courthouse. Scholars have explored how information flows and asymmetries might make regulators more susceptible to the claims of regulated parties.¹⁹⁷ These asymmetries result from classic collective action issues: small and motivated regulated parties have much more interest in shaping the flow of information to regulators than the diffuse public does.¹⁹⁸ In the literature on agencies, regulated parties can achieve informational capture by making regulators dependent on them for information, inundating them with information, or manipulating the quality and flow of information in self-serving ways.¹⁹⁹

One can observe a somewhat different, yet similar dynamic in the judicial context, where pro-corporate actors leverage the institutional dynamics of court adjudication and procedural rulemaking to produce an overwhelming—and often, descriptively inaccurate or questionable—informational flow and narrative.²⁰⁰ The structure of adjudication and procedural rulemaking facilitates these information flows. Courts move case-by-case and procedural rulemaking tends to be incremental and reactive.²⁰¹ These structures provide an opportunity for corporate actors to provide incomplete information that shapes the judicial view about litigation. For the past fifty years, a series of pro-corporate interests have advanced a negative view about litigation-as-regulation, the excesses of state courts, and liberal procedural rules that leverages the piecemeal nature of court adjudication and procedural rulemaking processes. Whether the topic has been pleading, class actions, discovery, or other procedural rules, these actors have painted a consistent narrative of litigation gone awry to support restrictive procedural standards.²⁰²

Information flows and asymmetries might similarly affect all of the jurisdictional doctrines surveyed above. Consider removal. In the class action context, narratives about runaway damages awards and corporate “blackmail” shaped the passage of the CAFA, which we discussed in Part I and which shifts most large class actions out of state court and into federal court.²⁰³ The narratives around the statute cast dim light on state courts and more positive light on federal courts, thus turning the tide towards removal. Similarly, corporate defendants have advanced a narrative about litigation run amok and settlement pressure, which has supported the Supreme Court’s restrictive procedural decisionmaking.²⁰⁴ This meta-narrative about beleaguered corporate defendants may make judges more susceptible to corporate efforts to lock plaintiffs out of court, lock them into federal court rather than state court, or throw them out of court and into other fora.

These organizational, cultural, and institutional explanations are especially important because the construction of the oligarchic courthouse today differs from the turn-of-the-century episode in another important way: then, it was Congress that took the lead in enacting statutes expanding original jurisdiction and facilitating removal, with the federal courts building upon their efforts in interpreting the statutes.²⁰⁵ Today, congressional behavior—including expanding diversity jurisdiction, establishing the Panel on Multidistrict Litigation, and failing to enact rules of recusal for the Court—has facilitated some of the trends that we emphasize. But the initiative has passed to the Article III courts themselves, with federal courts expanding and constricting jurisdiction largely on their own, drawing on older statutory provisions and prudential doctrines, and wielding interpretive discretion that has become virtually unconstrained—all of which raises questions about the background dynamics that might facilitate this judge-driven process.²⁰⁶ Beyond any differences, however, what unites both eras is judicial use of jurisdiction to transform courts into forums that serve corporate interests by denying enforcement of regulatory laws, exiling under-resourced claimants from federal court when convenient to corporate interests, and enabling the “haves” to hoard and leverage adjudicative resources in ways that raise concerns about oligarchy and subvert democratic practice.

III. Critiquing the Oligarchic Courthouse: Jurisdiction and Democracy

In the fifty years since Galanter warned that the “haves” systemically use their wealth to distort and reap unwarranted advantages from judicial proceedings, corporate power has continued, more and more rapidly, to translate into political power. Notably, the “haves” obtain significant support from courts to effect de facto changes to statutes and regulation through patterns of judicial nonenforcement, diminished enforcement, and forms of jurisdictional gerrymandering. Using the courts does not provide corporations with a sure-fire way to influence public policy; alone, it is not a silver bullet. But litigation based on a strategy of jurisdictional abuse provides an important plank in a broader pro-business, deregulatory campaign, supported by information flows that can sustain the practice and that can be especially useful when legislative change is not feasible because of its salience or cost. Given the longtime efforts of business interests to use courts to their political advantage, one might see the current use of jurisdiction as merely “business as usual.” We argue, instead, that over time jurisdictional practice has altered democratic practice, contributing to oligarchic conditions that are turning democratic mechanisms, slowly but steadily, against democracy.²⁰⁷

Oligarchic conditions are most clearly understood—and critiqued—when powerful economic actors determine “substantive” public policy and shape it to their own ends. But when corporate forces play an outsized role in shaping the state’s adjudicative procedures, they can undermine democracy in equally powerful, if more subtle, ways. In particular, judicial jurisdiction is a political resource, and the design and application of jurisdictional doctrines affect the possibilities for, and opportunity structure of, democratic mobilization and contestation, bearing upon the openness or closedness of the state. Manipulations of jurisdiction by powerful actors affect the ability of other, less-resourced persons to engage in democratic contestation over the meaning of rights and norms and to effectuate rights that democratic majorities have enacted on their behalf. As such, oligarchic conditions, and their increasing embeddedness in the form of an oligarchic courthouse, pose both a threat to democratic governance and contribute to larger processes of democratic decline in the United States.

A. Jurisdiction as a Political Resource

At the most basic level, jurisdiction is power;²⁰⁸ litigation enables private parties to leverage public power for both private and public ends. In and of itself, there is nothing unusual about such conduct—indeed, it is a basic feature of the American adversarial system. In theory, the jurisdictional resources of the state are available to all who seek justice and meet the conditions that the state has imposed on the use of its power. Litigation is thus a hybrid public and private good. And the judges to whom litigants turn exercise public power in a democratic fashion in part because they further democratic governing by enforcing statutory rights and common law commands.²⁰⁹ Precisely because private parties are permitted to use public power for their own ends, their use of such power is subject to constraint. These constraints are not only a matter of individual fairness; they also implicate federalism and the separation of powers. And they implicate the integrity of judicial process, the democratic nature of the courthouse, and the principle of political equality that is essential to democracy—namely, that certain public goods (such as the vote or the right to petition or to engage in free speech) are political resources that are, or at least ought to be, equally available to all. The U.S. legal system has long tolerated disparities in the provision of justice;²¹⁰ indeed, unequal access is sanctioned by the Court’s interpretation of the Constitution.²¹¹ Inequality by itself thus does not mark a transition from democracy to oligarchy, but unequal access to political resources can reflect oligarchic trends and contribute to them; over time, political-resource inequality can amplify other types of inequalities by concentrating political opportunities in the “haves” who are then even better positioned to use state power for their own ends.

Treating judicial jurisdiction as a political resource is an idea that threads implicitly through theories of social movements that focus on resource mobilization—on, that is, the resources available to citizens seeking to engage in democratic action.²¹² In this area, scholars have focused on how litigation and features of the litigation process are political resources that can be deployed or diminished in democratic contestation.²¹³ Jefferey Sellers, for example, has focused on how social movements, individuals, and firms use litigation as an “opportunity structure” in seeking to shape democratic norms.²¹⁴ Procedural choices affect the overall opportunity structure through which litigation as a political resource operates. Sellers focuses on how features such as judicial review and attorneys’ fees provisions structure or limit the opportunities for democratic contestation.²¹⁵ Legal procedures and conventions become “important ‘strategies of action’” through which citizens assert rights and make democratic claims.²¹⁶ And legal procedures are part of the “institutional incentives and constraints that shape a group’s ability and/or willingness to sue.”²¹⁷ Scholars have also considered how features such as standing rules “are crucial in determining who mobilizes the law and who does not.”²¹⁸ Legal procedures can thus “open or close windows for action.”²¹⁹ And few procedures are more important than those governing jurisdiction. The entire opportunity structure of litigation is based upon the availability of jurisdiction and on the ability of the claimant to deploy that jurisdiction in a lawsuit.

Relatedly, theorists focus on political process: how the openness or closedness of the state and state institutions affects the prospects for democratic contestation.²²⁰ For these theorists, changes in political environment, the accessibility of state structures, and elite views can open or close the doors for democratic contestation. Political opportunities are thus shaped by the “relative openness or closure of the institutionalized political system,” elite alignments and shifts, and shifts in state capacity and the propensity for repression.²²¹ Political opportunity, then, encompasses “the formal institutional or legal structure of a given political system” and “the more informal structure of power relations that characterize the system at a given point in time.”²²²

Jurisdiction as a political resource also bears upon the openness or closedness of the state. At the most basic level, jurisdictional doctrines either facilitate or thwart members of the democratic polity seeking to access the state and make claims in the forum of their choice that determine the meaning and application of legal norms. Jurisdictional doctrines shape and affect the prospects for democratic contestation by determining when, where, and whether members of the public can access courts and proceed with their claims. Manipulations of jurisdiction can therefore dynamically affect the ability of citizens to engage in democratic contestation over the meaning of rights and norms.

Understanding jurisdiction as a political resource clarifies what is at stake in current jurisdictional battles and why we characterize these jurisdictional shifts as an abuse of democracy and the foundation of an oligarchic courthouse. When courts acquiesce in corporate efforts to manipulate jurisdiction—expanding or contracting judicial power to impede public claims-making and to support deregulatory efforts—they enhance and consolidate public power in the hands of a concentrated business minority and create conditions that diminish the ability of most of the public to engage in political contestation. The jurisdictional shifts we surveyed above exhibit this point. The arbitration decisions divest civil plaintiffs of the ability to make claims in state courts and divest courts of the ability to hear claims and exercise robust review to ensure that private adjudicators follow the law or that arbitral proceedings are workable and fair. They close off state institutions and processes and diminish jurisdiction as a political resource for plaintiffs. The removal decisions make it harder for plaintiffs to choose a forum; they also introduce levels of delay and obfuscation that can either end claims or sap plaintiffs of resources, thereby creating weary and worn-down litigants. And the primary jurisdiction decisions close courts—albeit temporarily—and direct litigants to other organs of the state that may be unwilling or unable to resolve their claims. These jurisdictional decisions exhibit that winning or losing a jurisdictional struggle is not the only way to affect its power as a political resource; the collateral consequences of this form of abuse—in terms of delay, complication, and obfuscation—can also wear out less-resourced parties and affect the overall power distribution and potency of litigation as a strategy of democratic contestation.

B. Jurisdiction and Democratic Decline

Forum shopping is a tried-and-true litigation tactic, and so it would be tempting to characterize jurisdictional abuse as ordinary rent-seeking by corporate powers attempting to leverage public power to maximize private gains—to be reined in, if at all, by narrow tweaks to procedural rules.²²³ Reforms enacted in response to the battle over diversity jurisdiction at the turn of the twentieth century took just such a business-as-usual approach, relying on piecemeal, technical statutory changes—such as the definition of corporate citizenship—as a way to put the brakes on the business community’s sharp litigation practices.²²⁴ As Thomas M. Keck has explained, reforms of this sort may work when a court system is merely polarized—but not, however, when the judiciary is in the thrall of “an anti-system party,” and the court is using its power “to assist that party in maintaining control without appealing to popular majorities”—in other words, to support oligarchy.²²⁵ Our use of the term “oligarchic courthouse” is a strong indictment of the federal judiciary, and we use that term intentionally to locate current jurisdictional trends in a larger account of de-democratization and democratic erosion in the United States.

Consider first processes of de-democratization. Charles Tilly’s pathbreaking work lays a foundation for understanding how the jurisdictional shifts we have explored fit within a series of movements away from democracy and how they—to use our term—abuse democratic norms and institutions. Tilly describes democratization and de-democratization as larger processes that have within them smaller processes of net movements towards and away from democracy.²²⁶ To judge the degree of democracy, Tilly argues that we should “assess the extent to which the state behaves in conformity to the expressed demands of its citizens.”²²⁷ One of Tilly’s core indicia of democratization is “how equally different groups of citizens experience a translation of their demands into state behavior.”²²⁸ The state is most democratic when citizens can participate in elections, lobbying, and other forms of direct contact or consultation with state officials and institutions.²²⁹ In contrast, when powerful forces determine governmental actions—as is the case under oligarchic conditions, when economic elites determine those actions—there is less consultation and the state is less democratic.²³⁰

When certain parties seek to access the state and regularly yield self-serving advantages over others, they create and reproduce boundaries of inequality that undermine democracy.²³¹ Thus, increasing inequality gives certain groups the means and incentives to create beneficial relationships with state institutions and agents as a means to shield themselves from political obligations.²³² One particular concern for Tilly is that “privileged, powerful elites such as large landlords, industrialists, financiers, and professionals have much greater means and incentives than ordinary people to escape or subvert democratic compacts when those compacts turn to their disadvantage.”²³³

Today, there are many examples of net moves away from democracy in the United States, including the undermining of free and fair elections, forms of lawmaking that consistently favor wealthy and concentrated interests, and instances of outright corruption.²³⁴ The oligarchic courthouse and jurisdictional shifts that define it can be embedded in this larger story of net moves away from democracy. They take place against a backdrop of mounting economic inequality and illustrate instances of different groups experiencing their demands being translated into state behavior in ways that enforce and entrench that inequality.²³⁵ Corporate parties have successfully translated their demands for courts to manipulate their jurisdictional doctrines by closing themselves off to civil plaintiffs or sending plaintiffs down circuitous routes.²³⁶ As a result, the state—through its courts—is less responsive to claims-making, consultative processes are diminished for much of the larger public, and jurisdictional doctrines ensure that corporate parties regularly yield net procedural advantages that provide grounds for future procedural decisions in their favor.

These net procedural advantages can also entrench inequality and undermine democratic compacts. Jurisdiction has become a battleground for stunting democratic compacts—for using procedural decisionmaking to undermine the ability of the public to enforce and make real the demands of regulatory commitments. These compacts are often designed either to cabin excessive corporate power or to diminish inequality and level out power imbalances by providing anti-discrimination, workplace, and consumer protection guarantees to members of the public. When individuals find themselves wronged in the economy by powerful actors, recourse to courts is at times the only effective means of redress they have. And when jurisdiction is manipulated by corporate parties—with the acquiescence of courts—jurisdictional mazes and redirections can mean that rights and protections on paper lose real-world meaning and application. This, again, is why we use the term jurisdictional abuse—to surface how these jurisdictional transformations, by concentrating economic power and undermining the application and enforcement of democratic laws, abuse democratic values and undermine democratic governance. Jurisdictional abuse—along with the large architecture of procedural retrenchment, including more restrictive pleading standards, curtailment of aggregate litigation, and narrowed standing doctrines—forms part of the procedural story of de-democratization.²³⁷ Together, these procedural shifts produce an oligarchic civil litigation architecture that favors corporate parties and incrementally closes off the state to the larger litigating public.

Beyond Tilly’s frame, scholars have paid increasing attention to how declining participatory capacity and concentrated economic power are part of a larger constellation of forces eroding democracy in the United States today.²³⁸ Democratic erosion, like de-democratization, often occurs through incremental, seemingly small changes and practices, including drifts away from democratic-procedural protections.²³⁹ The oligarchic courthouse contributes to this larger process of erosion. Corporations have pushed for jurisdictional changes that cement and insulate their power and subvert democratically enacted commitments by constricting the possibilities for plaintiffs to participate in judicial enforcement processes and implement statutory law. Consistent with David Landau’s theory of “abusive constitutionalism,” the phenomenon of jurisdictional abuse uses the mechanisms of democracy—namely, judicial power—for anti-democratic ends in the sense of blocking off avenues of political participation, concentrating wealth, and insulating corporate wrongdoers from liability.²⁴⁰

Jurisdictional abuse is unlikely to get headline-grabbing attention, but it plays an especially potent and subversive role in protecting and deepening concentrated economic power.²⁴¹ Indeed, the technical and seemingly abstruse nature of doctrines such as jurisdiction makes their manipulation less likely to be politically salient, in turn making procedural reform a particularly promising way for powerful actors to protect their power and stunt processes of democratic contestation and law enforcement. Jurisdictional doctrines, like procedure generally, “fly under the radar,” permitting corrosive effects that remain invisible to the public.²⁴² This fact once again summons Frankfurter’s words, reminding us 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.”²⁴³

Conclusion

Our focus in this Article has been on how corporations have sought to transform jurisdictional doctrines to their advantage and how the federal courts have facilitated these efforts. In doing so, corporations and courts have participated in constructing the oligarchic courthouse—one where procedure is manipulated to favor corporate interests in circumventing hearings on the merits and blocking claimants’ efforts to enforce democratically enacted regulatory laws. Our exploration of these doctrinal transformations highlights how jurisdiction is implicated in struggles over political economy—over how democracy and law shape and are shaped by the economy and economic forces.²⁴⁴

It may be tempting to take away from this Article the conclusion that the best path forward is to separate jurisdiction from issues of political economy—to fashion jurisdictional doctrines without their economic effects in mind. But that separation is easier to imagine than it is to realize, and it is precisely this false sense of apolitical neutrality that has aided the emergence of the oligarchic courthouse. In a world where litigation ineluctably bears upon the economic rights and entitlements of parties—whether their damages in tort or their relief from impermissible workplace discrimination—questions of jurisdiction cannot be separated from issues of political economy. Jurisdiction goes to the heart of judicial power, and for better or worse, judicial power is deeply related today to how law shapes economic outcomes and ordering. The problem with the oligarchic courthouse, then, is not that jurisdiction has come to connect to economic goals, outcomes, or entitlements. It is that the political economy of jurisdiction is warped towards the economically powerful, essentially commandeering state processes for them. Our Article highlights the procedural dynamics of growing oligarchic conditions, not to suggest that procedure should be disentangled from larger battles over law and economic power, but instead to chart how courts have stretched procedure in one direction that undermines democratic governance.

The entwinement of jurisdiction and economic power underscores why conventional jurisdictional fixes would not quickly or easily dismantle the oligarchic courthouse. So long as that entanglement exists, powerful actors will seek to bend jurisdictional doctrines to suit their interests. Still, it is worth reflecting on a few reorientations that might halt and prevent oligarchic drift. And because we are teachers of procedure and jurisdiction, our immediate audience is the legal academy.

First, the study of jurisdiction should be anchored in a democratic vision of the role of courts and law, and not presented as a merely technical feature of adjudication. We have hopefully contributed to this effort by defining jurisdiction as a political resource centered in a larger account of democratic contestation and mobilization—and by showing that its design and practice cannot be detached from democratic processes and the substantive commitments they entail. By centering jurisdiction as a significant means of facilitating democratic governance, teaching and scholarship can be better positioned to identify and critique jurisdictional doctrines that prevent parties, whether individually or in aggregate form, from influencing and carrying out legislative policy and making real democracy’s demands on economic ordering.

Second, deconstructing the oligarchic courthouse requires the construction of networks that can counterbalance the structural, economic, informational, and cultural features that have made jurisdictional abuse possible—and, indeed, made it conventional not to perceive these jurisdictional shifts as a dangerous abuse of democracy. For too long, corporate-driven narratives about the putative cost, delay, and inefficiency of litigation have crowded out recognition of the importance of courthouse practice and procedure to realizing values of equality, inclusion, and fairness.²⁴⁵ Remedying this requires building a culture that respects those values and where those who spend their time working on behalf of people other than the “haves” have a seat at the table.

Finally, to deconstruct the oligarchic courthouse, the democratic idea of participatory power must be placed at the center of jurisdictional design.²⁴⁶ Private enforcement through courts is an important mechanism. But the design of the mechanism must ensure that otherwise diffuse, uncoordinated, and underresourced parties have the capacity needed to exercise countervailing power against the large-scale enterprises that resist such enforcement.²⁴⁷ When jurisdictional doctrines promote gamesmanship by more powerful parties that wears out weaker parties or frustrates them in their efforts to enforce regulatory law, then jurisdictional doctrines contribute to democratic disillusion and rot. The response must take seriously the structural and background capacities that members of the public bring to the litigation process and design jurisdictional doctrines to facilitate public participation and power.

These reorientations are largely directed to the legal community. Alone they are not sufficient to construct a participatory, democratic courthouse. We hope, however, that our effort has at least clarified the sweep and success of the corporate project to transform jurisdictional doctrines, the project’s threat to democracy, and the importance of resisting it in the name of democratic governance.

* Herbert M. and Svetlana Wachtell Professor of Constitutional Law and Civil Liberties, New York University School of Law. Hershkoff acknowledges support from the Filomen D’Agostino Research Fund for this Article.

** Associate Professor of Law, University of Richmond School of Law. The authors thank Cara Day, Daniel Forman, Myles Hagood, Colin Heath, and Carson Poling, students at New York University School of Law, for excellent research assistance, and express appreciation to Christine Park and Andrew Frank for expert library assistance and to Tiffany Scruggs for administrative support. They further thank Erin Collins, Willy Forbath, Justin Lo, Stephen Loffredo, Allison Tait, and the Wake Forest University School of Law faculty for comments and conversation.