Since Robert Cover’s 1981 article, many (including me) have accepted on faith that jurisdictional redundancy is a good thing. Redundancy is a feature of many complex systems. In the judicial context, redundancy creates competition among courts. According to Cover, this competition prevents ossification of the judicial process — whether that ossification arises from the self-interest of one system’s judges, from one system’s ideological capture or impasse, or from one system’s resistance to innovation. The principal cost of jurisdictional redundancy, especially in the context of state and federal courts, is its inherent messiness or inefficiency; an array of often complex doctrines polices the lines between systems (think of the rules of subject-matter jurisdiction, abstention, and full faith and credit, to name three). Concurrent jurisdiction between federal and state courts has a pedigree nearly as old as the Republic, its inefficiency often seen as a necessary cost to achieve the benefits of jurisdictional redundancy.
This sobering article by Helen Hershkoff and Luke Norris adds a new set of factors — how corporations have exploited the diffusion of adjudicatory power to evade accountability for their actions — that weaken the case for redundancy. Worse, the authors seek to demonstrate how this corporate abuse of jurisdiction bleeds over from preserving economic power to creating political power, establishing the conditions for oligarchic authority that undermines American democracy and self-government.
In many ways, this article follows in the vein of scholars such as Burbank & Farhang, Staszak, and Chemerinsky, each of whom has documented how the Supreme Court has used procedure to kneecap substantively progressive legislation or legal claims. But this article adds new dimensions.
It begins by tracking corporate efforts in the late nineteenth and early twentieth centuries to crack open access to federal courts, which were perceived as more hospitable to corporate efforts to achieve a national market largely unfettered by regulation. That effort was single-minded: establish jurisdictional and procedural pathways to federal court. Switching to modern times, Hershkoff and Norris show that corporations have not changed their goal of finding forums where they are least subject to regulation and accountability.
But the landscape changed after the New Deal, as corporations found themselves subject to federal regulation, typically enforceable through private rights of action (as Farhang documented). In this environment, corporate strategy becomes more diffuse. In some areas, it makes sense for corporations to gain a federal forum and “lock in” federal jurisdiction; the authors cite removal doctrine, especially the recent rise of fraudulent removal and snap removal. In other areas, however, it makes sense to “lock out” federal courts to prevent them from adjudicating disputes: see the Supreme Court’s muscular support for a broad reading of the Federal Arbitration Act, which sends many consumer and employee disputes to corporate-friendly arbitral forums. And in still other areas, it makes sense to “throw out” cases to administrative agencies; here (in their least helpful example) the authors cite primary jurisdiction, which does not end federal-court review but delays enforcement of federal law, lodges fact-finding in a possibly more favorable forum, and drives up costs for opponents.
The authors’ basic claim that procedure is being used to frustrate substantive enforcement is not itself novel. Nonetheless, the concepts of “lock in,” “lock out,” and “throw out” provide a useful lens for thinking about the Supreme Court’s recent procedural rulings. What makes the authors’ contribution especially powerful is their attempt to link these efforts to a possible ongoing transition in the United States from democracy to oligarchy.
According to the authors, corporations are using their economic power to achieve unequal access to courts, a political resource. While the authors are cautious to note that unequal access to political resources does not itself create an oligarchy, unequal access “concentrat[es] political opportunities in the ‘haves’” and therefore limits the opportunities for democratic contestation. In turn, a more oligarchical structure allows a minority to maintain control without the assent of the majority and creates the conditions for the de-democratization of the United States. The jurisdictional abuse that helps to create the “oligarchic courthouse” (to use the authors’ phrase) may not itself signal the end of American self-government, but it must be seen as a piece of other movements — such as efforts to undermine free and fair elections and laws that consistently favor the wealthy and powerful — that close off the majority’s will and threaten an end to American democracy.
Hershkoff and Norris also seek to answer the evident question: granting that corporations want an oligarchic courthouse, why have judges abetted efforts that could undermine American democracy? They offer numerous reasons — organizations (such as the Federalist Society) with a mission of shaping pro-corporate judicial thinking, Democratic acquiescence by appointing judges with corporate and prosecutorial backgrounds, and a narrative about litigation abuse that has captured institutional actors such as judges and procedural rulemakers.
That the connection between corporate efforts to avoid accountability and the conditions establishing oligarchical power is more theoretical than clearly proven presents the article’s weak point. In terms of the threat to democratic values, the difference between election denial and a corporation’s snap removal of a lawsuit is night and day, and there is no suggestion that corporations condone election denial. Nonetheless, the stakes of an oligarchic courthouse are high, and defenders of democracy ignore these jurisdictional abuses at their peril. At a minimum, if the authors are correct, we must reassess the value of jurisdictional redundancy. Redundancy presents a tool that powerful interests can use to shop around for their best forum — setting in motion the anti-democratic tendencies the authors describe.
Hershkoff and Norris offer a bleak assessment of where we are — of where courts, and especially the Supreme Court, have led us. They provide no rosy solutions. They are pessimistic that reforming jurisdictional rules will get us out of this conundrum; such reform will be hard to achieve, and corporations will adapt to the new rules, as they did after the New Deal. They suggest that law professors alert their students to the democratic values at stake in dry jurisdictional doctrines. They recommend the construction of networks that can produce a counter-narrative focused on the value of procedure and litigation for the “have-nots.” And they argue that the preservation and expansion of democratic power should lie at the center of jurisdictional design.
Good ideas all, but are they enough?
