THE OLIGARCHIC COURTHOUSE: JURISDICTION, CORPORATE POWER, AND DEMOCRATIC DECLINE

Abstract

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, circumvent-ing hearings on the merits, and insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative argu-ments 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 deregu-latory efforts that undermine legal commitments to equality, dignity, and par-ticipation. 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 ce-menting economic power and translating it into concentrated political power that undermines the possibility of robust democratic life.