Jurisdiction is foundational to the exercise of a court’s power. It is precisely for this reason that subject matter jurisdiction today has come to the center of a struggle over corporate power and the regulatory state. Corporations have sought to manipulate forum choice to wear out less-resourced parties and circumvent hearings on the merits, along the way 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 their 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 federal courts have acquiesced in a corporate-driven effort to transform jurisdictional doctrines over recent decades and contends that together, these doctrinal changes constitute an inflection point in U.S. law and procedure. We argue that issues of jurisdiction today, as at the turn of the Twentieth Century, are not only slanted towards corporate interests but are also part of a larger struggle over oligarchy and democracy. The shifts in jurisdiction 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, cementing economic power and translating it into political power. Today, as before, seemingly technical and dry procedural doctrines are employed by courts in ways that protect powerful economic parties and undermine public processes and goals.
The construction of the oligarchic courthouse has troubling implications for democracy. 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 shapes the opportunities for democratic contestation and reflects the openness and closedness of the state. Having centered jurisdiction in a larger account of democracy, we explore how the oligarchic courthouse, by undermining the possibilities for democratic contestation and entrenching economic power, can be nested in a larger account of democratic decline in the United States.
Luke Norris, The Oligarchic Courthouse: Jurisdiction, Corporate Power, and Democratic Decline, 122 Michigan Law Review (with Helen Hershkoff) (2023).