Early Warnings, Thirteenth Chimes: Dismissed Federal-Tort Suits, Public Accountability, and Congressional Oversight

Article published in the Michigan State Law Review

The Dick Whittington Story: Theories of Poor Relief, Social Ambition, and Possibilities for Class Transformation

The New Yorker cartoon, with its pessimistic emphasis on a child\u27s economic prospects, provides a foil to the Whittington story and its optimistic attitude toward law and social possibility. I suggest in this talk that contemporary children\u27s literature shares with the cartoon a similar lack of confidence in law\u27s capacity to generate advancement and prosperity. My comments rely on Eleanor Updale\u27s award-winning Montmorency series and Philip Pullman\u27s widely acclaimed His Dark Materials trilogy to try to glean a better sense of cultural understandings of law and of law\u27s contemporary relation to social mobility. I take these books as my texts, not because they are canonical (at least not yet), but because they tell wonderful stories, are superbly written, and illustrate important current themes. Both are written by contemporary English writers and take place in imaginary versions of England in the past, present, and future. In both sets of stories, an orphan, actual or metaphysical, sets out to establish a new persona that requires the crossing of social boundaries. In both, lawinvisible but all-present-drives the story into motion and affects the child\u27s capacity to create that new identity. And in both, the characters experience significantly less happiness than one might expect in their new social roles, and certainly less than is ascribed to Dick Whittington. Turning from the stories, I conclude by briefly taking up the central theoretical concern of this conference-the intersection of law, culture, and literature-and comment on what I think these stories teach about the experience of law in-the-world as it affects class identity. In so doing, I implicitly respond to the argument that literature has little to contribute to law or to legal culture

Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process

“Due process,” unmodified by the words “substantive” or “procedural,” has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment. Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the “ability to pay.” Judges also assessed the “fairness” of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the “fairness” of state courts’ exercise of jurisdiction over absent litigants and application of their law to out-of-state parties. Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally “fair.” Due process has thus been adaptive, pluralistic, and Janus-faced—looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws. The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote

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

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

Forum-Selection Provisions in Corporate Contracts

We consider the emergent practice of including clauses in corporate certificates of incorporation or bylaws that specify an exclusive judicial forum for lawsuits. According to their proponents and most courts that have considered the question, such forum-terms are, and should be, enforceable as contractual choice-of-forum provisions. We argue that treating corporate charter and bylaw forum-terms as a matter of ordinary contract doctrine is neither logical nor justified. Because charters and bylaws involve the state in ways that are at odds with private-ordering principles and because they entail only a limited form of “consent,” an analysis of enforceability must account for the hybrid nature—public and private—of such terms. Specifically, the state’s role should render forum-terms invalid that oust federal courts of diversity jurisdiction. Likewise, because of a lack of any meaningful consent, a forum-term that applies to a claim that is neither derivative nor brought by a shareholder should not be enforced. In other situations, courts should consider, before enforcing a corporate forum-term, whether adjudicating the entire dispute in the designated forum would be efficient (e.g., whether the court has subject-matter jurisdiction over all claims) or fair (e.g., whether the procedural rules, including the limitations period, of the designated forum are substantially more advantageous to the parties who decided to adopt the forum-term than those of the state that supplies the substantive law). In some cases, efficiency and fairness factors will argue against the forum-term’s enforcement. On the other hand, several factors in other corporate settings and, in particular, in merger-related representative suits, may tip the balance towards enforcement. First, the fact that “consent” by class members to these suits is also limited counter-balances concerns about the limited consent shareholders may have given to the forum-term. Second, a forum-term reduces the ability to avoid the crack-down on “disclosure-only” settlements—that provide broad releases, but entail minimal recovery—that Delaware courts have embarked on. Finally, we consider the implications of corporate forum-terms to debates about interstate competition for incorporation and for corporate litigation. A state may adopt forum-term legislation to enhance its attractiveness as a corporate domicile or to protect shareholders in domestic corporations. However, legislation that discriminates against out-of-state courts and seeks to centralize corporate litigation in the state’s own courts for the benefit of its local bar may be vulnerable to non-enforcement in the courts of sister states