This Article tells the lost origin story of a feature of civil procedure loathed by many progressives. That loathed feature is what is sometimes called civil procedure’s “litigation individualism”—a term for the Supreme Court’s aggressive protection of each injured litigant’s autonomy over strategic choices affecting her right to relief.1See Stephen C. Yeazell, Collective Litigation as Collective Action, 1989 U. Ill. L. Rev. 43, 47–48 (1989) (summarizing the ways that “individualism” pervades the American culture of litigation); Owen M. Fiss, The Allure of Individualism, 78 Iowa L. Rev. 965, 974 (1993) (arguing that modern constitutional law has built a “fortress” around the participation rights of the “individual,” and arguing for switching the focus from individual participation to group “interest” representation); Anthony J. Sebok, Dispatches from the Tort Wars, 85 Tex. L. Rev. 1465, 1506 (2007) (discussing the role that “individualism” has played in attacks on and defenses of the American tort system).
In a regime of litigation individualism, courts stingily construe the availability of legal devices, like the class action, that disrupt litigants’ autonomy to control their own lawsuits.2See Fiss, supra note 1, at 977. Progressives loathe the Court’s litigation individualism for precisely this reason: Those stingy constructions have hobbled the class action’s role as a weapon against systemic corporate wrongs.3See Alexandra D. Lahav, The Case for “Trial by Formula,” 90 Tex. L. Rev. 571, 574–75, 633 (2012) (criticizing the Supreme Court’s “overemphasis on liberty and individualism in litigation”).
But, in a significant irony, it turns out that judicial efforts to protect plaintiff autonomy have their roots in the progressive movement. Indeed, arguably no Justice embraced a version of litigation individualism more than mid-twentieth-century progressive icon Hugo Black. This paper sets out to reconstruct Black’s protective approach to litigant autonomy rights and, in doing so, recover the lost story of progressive litigation individualism in civil procedure.
Unlike modern lawyers, who situate litigants’ right to control their own lawsuits in the due process guarantee,4Sergio J. Campos, Mass Torts and Due Process, 65 Vand. L. Rev. 1059, 1060–61 (2012) (observing that the Supreme Court’s narrowing construction of the class action has emphasized the importance of the “claim and, in particular, a plaintiff’s control, or autonomy, over it,” and has emphasized due process, among other formal hooks, as a basis for protecting this interest). Justice Black defended litigation individualism as an adjunct to judicial federalism. Like most New Deal-era progressives, Justice Black viewed the state courts as the refuge of the less powerful, and federal courts as a haven for corporate interests. And so, Justice Black prized injured plaintiffs’ freedom to choose state over federal court. Congress’s broad grant of concurrent federal-state jurisdiction gives plaintiffs that freedom. And, in Black’s view, Congress’s jurisdictional scheme also presupposed that each claimant has the power to make forum choices independently, free from interference by others. Because Congress’s jurisdictional scheme assumed each injured plaintiff would enjoy this power of choice, he thought federal courts had an obligation, when interpreting civil procedure or the scope of their equitable power, to conserve each injured party’s “substantial right . . . to choose [a] forum” in which to seek relief.5These views, discernable in many of Black’s opinions, culminated in Justice Fortas’s opinion, joined by Black, in State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 535–36 (1967), discussed infra notes 211–241 and accompanying text. For a full discussion of Black’s jurisprudence of forum choice, see infra Part II.
This framework yielded a kind of litigation individualism—that is, an affirmative judicial effort to protect injured parties’ autonomy over their own litigation. And much like the modern Court’s litigation individualism, Black’s framework produced stingy, inflexible judicial interpretations of federal procedures that forcibly consolidated mass litigation—frustrating nascent efforts at centralizing the management of mass torts within the federal court system.6See, e.g., Tashire, 386 U.S. at 535–36 (construing interpleader procedures narrowly to protect individual claimants’ “substantial right . . . to choose [a] forum”).
Black’s approach may have even sowed a seed of modern litigation individualism. After Black’s death, an increasingly conservative Court in the 1970s briefly reified Black’s approach to litigant forum selection into a general principle: The federal judiciary respected its limited role in the system of separated powers by not taking initiative to draw litigation away from other forums.7See infra Part III. That principle fueled the Burger Court’s inflexible approach to enforcing forum selection clauses.8See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 14 (1972). And it set a pattern of protecting litigant autonomy that would carry forward into the Rehnquist Court.9See Ortiz v. Fibreboard Corp., 527 U.S. 815, 846 (1999) (emphasizing that it is “our ‘deep-rooted historic tradition that everyone should have his own day in court’” (quoting Martin v. Wilks, 490 U.S. 755, 762 (1989))).
But by the 1980s, Black’s contributions to the Supreme Court’s litigation individualism stance were forgotten. In the Reagan era, conservatives became increasingly hostile to plaintiff-side “forum shopping,” leading conservative judges and legal theorists to invoke new sources of law—due process as well as Article II—to protect litigant autonomy from judicial encroachment.10See Campos, supra note 4, at 1060–61 (describing the Due Process Clause’s role in protecting plaintiff autonomy); Kenneth S. Abraham, The Insurance Effects of Regulation by Litigation, in Regulation Through Litigation 212, 232 (W. Kip Viscusi ed. 2002) (critiquing “regulation by litigation”). In the process, the case for protecting litigant autonomy shifted from plaintiff’s freedom over the initial strategic choice (forum selection) to plaintiff’s control over the later presentation and settlement of the case.11See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 616 (1997) (“‘Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]’; each ‘ha[s] a substantial stake in making individual decisions on whether and when to settle.’” (quoting Georgine v. Amchem Prods. Inc., 83 F.3d 610, 633 (3d Cir. 1996))); see also infra Part III. Progressives’ federalism-oriented defense of litigation autonomy was discarded, even as general characteristics of that approach—like the wrench it threw into consolidation of mass litigation—carried forward.
Is there anything of value (beyond simply reconstructing the past for history’s sake and a bit of historical gotcha) to be gained from excavating Black’s federalism-oriented take on litigation individualism? Skeptics will surely abound. State judiciaries have fallen into ill repute, even among some contemporary progressives.12See Diego A. Zambrano, Federal Expansion and the Decay of State Courts, 86 U. Chi. L. Rev. 2101, 2134 (2019) (“Although conservative forces led the anti-litigation movement, they at times received significant support from liberals.”); id. at 2137 (noting widespread view of state courts as “institutionally inferior, underresourced, and unprepared to handle complex interstate cases”). A revival of takes on judicial federalism oriented around expanding the field for what amounts to plaintiff forum shopping seems, at first glance, like a dubious proposition.
But Black’s version of litigation individualism may have something to offer to a new generation. A backlash against federal centralization is brewing.13See id. at 2103–04. State courts provide “broader access” to litigants suing institutional defendants than their federal counterparts,14Id. at 2104 (“[S]tate courts have remained relatively pro-plaintiff and have ensured broader access to court.”). leading a new generation of reformers to push back against federal centralization.15See id. at 2108–09, 2153 (arguing that federalization of complex litigation, while promising some benefits, is risking a spiraling decay of state courts, harming “consumers, employees, and those in family courts,” as well as “stagnation” in common law innovation). Scholars are exhuming theories of judicial federalism from the New Deal and Progressive Eras, a time when progressives, like today’s, were “wary about a largely conservative federal judiciary.”16Lael Weinberger, Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures, 87 U. Chi. L. Rev. 1737, 1741–42, 1773, 1782 (2020) (noting that today’s progressives, like earlier progressives, are “wary about a largely conservative federal judiciary” and exploring the potential this wariness creates for a progressive-conservative revival of New Deal federalism).
Reappraisal of federal control of mass litigation is not just taking place among progressives. Work by conservatives and libertarians like Professors Brian Fitzpatrick and David Hyman is questioning the premises of the “tort reform” movement that spawned the federal takeover of mass tort litigation in the first place.17See Brian T. Fitzpatrick, The Conservative Case for Class Actions 3–4, 62–66 (2019); David A. Hyman & Charles Silver, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid, 59 Vand. L. Rev. 1085, 1112, 1122–23 (2006) (arguing that the tort system in the healthcare area “does not seem to favor the interests of plaintiffs” and is plagued with under-claiming, due in part to the “loading costs” of accessing the tort system). And Professor Diego Zambrano shows that centralization may be exacerbating state courts’ pro-plaintiff bias and weakening citizens’ attachment to the states, trends that should give conservatives pause.18Zambrano, supra note 12, at 2153–76. At the same time, originalists are raising new questions about the constitutionality of corporate diversity jurisdiction.19See, e.g., Mark Moller & Lawrence B. Solum, Corporations and the Original Meaning of “Citizens” in Article III, 72 Hastings L.J. 169, 171–173 (2020); Mark Moller & Lawrence B. Solum, The Article III “Party” and the Originalist Case Against Corporate Diversity Jurisdiction, 64 Wm. & Mary L. Rev. (forthcoming 2023) (manuscript at 3–5) (on file with the authors) [hereinafter Moller & Solum Manuscript]. There is, in short, a lot of cross-ideological ferment around the burgeoning federal takeover over mass tort litigation.
The potential of Black’s federalism-inflected version of litigation individualism lies in its ability to attract adherents from both camps. For progressives, Black’s combination of federalism and litigation individualism provides a framework for resisting further court-access unfriendly federal aggrandizement. And because Black’s version is rooted in a coherent formalist approach to constitutional structure and statutory construction, it might also have some appeal for a new generation of federalism-oriented constitutional conservatives hoping to stave off further marginalization of state judicial systems.
Below, I trace Black’s marriage of federalism and litigation individualism in four parts. Part I briefly reviews the concept of litigation individualism in American procedure and summarizes the two standard sources invoked to protect it—due process and “substantive law.”
Part II reconstructs Justice Black’s forgotten, federalism-based theory of litigation individualism. Section II.A begins by reviewing how the New Deal Court protected judicial federalism. Section II.B then reconstructs how Black made litigant autonomy an important component of New Deal federalism. Section II.B begins by exploring Black’s precursors: an early twentieth-century alliance of progressives and populists who linked litigant autonomy with forum choice and federalism.20The progressive and populist movements were different reform movements that spanned the late nineteenth century and early twentieth century. See James M. Beeby & Brian M. Ingrassia, Precursors to Gilded Age and Progressive Era Reforms, in A Companion to the Gilded Age and Progressive Eras 21, 21 (Christopher McKnight Nichols & Nancy C. Unger eds., 2017). The movements shared some goals, including enhancing democratic control of policy and fighting corporate privilege. See id. Both movements influenced Black, and I call the overlapping set of concerns that animated his jurisprudence “progressive populism.. It then traces how Hugo Black’s votes and decisions on the New Deal and Warren Courts carried this populist linkage into New Deal federalism jurisprudence. Section II.B ends by arguing Black’s output reflects a coherent “structural” theory of litigation individualism.
Part III then recounts how conservatives, starting in the 1980s, jettisoned Black’s distinctive linkage between litigation individualism and federalism.
This Article ends in Part IV by considering whether a Black-style marriage of constitutional structure and litigation individualism has a future.
I. Litigation Individualism: The Modern View
The claim in this Article is that precursors to modern litigation individualism can be found in earlier strains of the Progressive and New Deal eras. I use the term “litigation individualism” to describe a legal system characterized by two features: (1) rules that give plaintiffs broad autonomy over strategic choices affecting their legal interests; coupled with (2) affirmative judicial efforts to conserve that autonomy, which, usually, take the form interpreting ambiguities in legal rules regulating plaintiff autonomy in a way that preserves as much of that autonomy as possible.
Few would dispute that American procedure is a system characterized by the first feature of litigation individualism. Interested parties’ control over the litigation of their own rights has been a consistent part of American law and its English antecedents.21Yeazell, supra note 1, at 47–48 (“The adversarial system, reinforced by an entrepreneurial professional ethos, by doctrines of due process, by the significant role of market capitalism in the economy, by a political ideology of individual rights, and by almost a millennium of acculturation to individualist litigation practices has created a strongly individualistic system of litigation.”). Since at least the end of the seventeenth century, parties vested with legal rights or defenses have been understood to be vested with the corollary power to control strategic choices affecting presentation of their own rights.22See Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action 138–39, 174–75 (1987) (suggesting that an ideology of litigation individualism took root in English law by the end of the seventeenth century, obscuring prior collectivist and communal modes of litigation, and then carried over to America); see also Yeazell, supra note 1, at 44, 50–51.
A system of litigation individualism in the sense used in this Article is, however, a system that is also marked by affirmative judicial efforts to conserve litigant autonomy. That is true of the modern Supreme Court, which has consistently resisted procedural incursions on litigant autonomy.23See, e.g., Stephen B. Burbank & Sean Farhang, Class Actions and the Counterrevolution Against Federal Litigation, 165 U. Pa. L. Rev. 1495, 1496–98 (2017) (discussing the Supreme Court’s “counterrevolution” against the class action); Campos, supra note 4, at 1060–61 (observing that the Supreme Court’s narrowing construction of the class action has emphasized the importance of the “claim and, in particular, a plaintiff’s control, or autonomy, over it”). The major area where this resistance plays out today is in the law governing the class action device, a procedure that transfers control of strategic choices from claim owners to a court-approved representative.24Fed. R. Civ. P. 23. Classic examples of this judicial resistance are found in Rehnquist Court cases Ortiz v. Fibreboard Corp.25527 U.S. 815 (1999). and Amchem Products v. Windsor.26521 U.S. 591 (1997).
In Ortiz, the Court blocked the use of the mandatory class action provisions of Rule 23(b)(1) to corral mass tort claims into a sweeping settlement based on the speculative risk the mass tort recoveries could outstrip the defendant’s assets.27Ortiz, 527 U.S. at 864–65. Amchem, decided two years earlier, interpreted Rule 23’s conditions for certifying a mass tort as a damages class action stringently, and blocked defendants’ and class counsel’s ability to side-step these stringent requirements through the trick of proposing a class action solely for the purposes of implementing a settlement.28See Amchem, 521 U.S. at 601–02, 624–25. Together both cases made the class device exceedingly difficult to use in the mass tort context.
The value of litigant autonomy factored into each decision. In Ortiz, the Court invoked concerns about the tension between the “collectivism” of class litigation and the tradition of litigant autonomy as one important reason to construe the scope of mandatory class actions under Rule 23 narrowly.29Ortiz, 527 U.S. at 846–47 (“Unlike Rule 23(b)(3) class members, objectors to the collectivism of a mandatory subdivision (b)(1)(B) action have no inherent right to abstain.”). Justice Ginsburg raised the same concern about the scope for class treatment of valuable mass tort damages claims in Amchem.30Amchem, 521 U.S. at 616 (“‘Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]’; each ‘ha[s] a substantial stake in making individual decisions on whether and when to settle.’”) (quoting Georgine v. Amchem Prods., Inc., 83 F.3d 610, 633 (3d Cir. 1996)).
Of course, the Court does not frame litigant autonomy as a free-floating “value” that it promotes just because the Justices happen to like that value. The Court’s modern cases first suggest that protection is required by the Rules Enabling Act, which forbids procedures that abridge “substantive right[s].”3128 U.S.C. §§ 2071–2077; Campos, supra note 4, at 1060–61. This argument treats rights of action as a kind of property and conceptualizes the right to control the cause of action as one of the property interests that having a claim entails.32Campos, supra note 4, at 1060–61. Like other property rights, the power of claim control is a “substantive right” that the Enabling Act shields from abridgement.33Id. at 1060–61, 1118–20 (describing this argument).
The Supreme Court’s cases also rely on the due process tradition. Due process protects fundamental property and liberty interests from legislative incursions.34Id. Litigants’ right to control the assertion of their own rights is, the Court seems to suggest, just such a fundamental interest, which means due process requires affording those claiming an entitlement to a remedy control over their claims for that remedy.35See Yeazell, supra note 1, at 48 (observing, albeit critically, that the “[c]ommon law, it is trite to say, was individualistic. . . . Its individualistic preoccupations grew from its aristocratic roots. Due process grew from these aristocratic roots and took hold in the United States Constitution, giving these individualistic tendencies the status of fundamental law.”); see also Henry Paul Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, 98 Colum. L. Rev. 1148, 1174–75 (1998) (arguing that “substantive due process” requires protection of litigant autonomy). One might also view litigant autonomy as a fundamental right that straddles the division between procedural and substantive due process.
In either case, autonomy advocates argue, courts must construe rules that infringe on litigant autonomy narrowly, to avoid Enabling Act or constitutional problems.36Campos, supra note 4, at 1110–14 (describing and critiquing these sorts of arguments); see also Sergio J. Campos, The Uncertain Path of Class Action Law, 40 Cardozo L. Rev. 2223, 2226–29 (2019). These arguments, in turn, offered the formal scaffolding for the Supreme Court’s narrowing construction of the federal class action rule in cases like Ortiz and Amchem.37Ortiz v. Fibreboard Corp., 527 U.S. 815, 845–48 (1999) (invoking both Rules Enabling Act and due process concerns in support of narrow construction of Rule 23’s mandatory class action provisions); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 629 (1997) (“Rule 23 . . . must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view”); id. (citing favorably lower court precedent “suggesting resort to less bold aggregation techniques, including more narrowly defined class certifications”).
Many scholars, though, criticize litigation individualism’s formal underpinnings. Some argue that there is no good reason to assume modern statutory or common law rights of action confer a substantive right to individual control of legal claims for remedies.38Mark Moller, Separation of Powers and the Class Action, 95 Neb. L. Rev. 366 passim (2016). Others question whether there is sufficient historical pedigree to warrant treating litigation autonomy as a fundamental interest.39Campos, supra note 4, at 1110–11. Professor Sergio Campos adds that the Court improperly refuses to balance litigants’ autonomy interests against other compelling interests.40Id. at 1112–14 (criticizing the Court’s refusal to balance litigants’ interest in claim-control against other values). And many critics also contend, with some strong evidence, that the formal underpinnings of litigant autonomy are fig leaves for what amounts to an ideological project (associated with modern legal conservatives) to thwart private attorney general actions and the class device.41Burbank & Farhang, supra note 23, at 1498 (arguing “conservative Justices have been ‘bent on diminishing’” the class action and other rules that promote private litigation); Suzette M. Malveaux, How Goliath Won: The Future Implications of Dukes v. Wal-Mart, 106 Nw. U. L. Rev. Colloquy 34, 37–38 (2011) (emphasizing the role the Court’s “conservative majority” played in tightening the availability of the class device). Litigant autonomy has always had appeal across ideological factions. Even so, in recent decades, conservatives on the Court have been less willing to find that other values override autonomy than their progressive colleagues. Burbank & Farhang, supra note 23, at 1517–28 (finding an increasing correlation between conservative ideology and anti-litigation votes among justices over the last thirty years).
The next sections show that the current understanding of the history of litigant individualism is incomplete. Protecting litigant autonomy was also a feature of older progressive constitutional theory, represented most consistently on the New Deal Court by Hugo Black. This progressive tradition, however, conceptualized protection for litigant autonomy rights as an outgrowth of a completely different area of law: judicial federalism. Jurisdictional rules give plaintiffs significant power to shop for a state forum—a power that progressives thought promoted court access. And progressives believed these jurisdictional rules presumed that litigants would enjoy an individual right to control where to assert their claims. This led the New Deal Court to adopt restrictive interpretations of procedures that interfered with litigant autonomy in ways that anticipated trends on the modern Court—an approach that implicitly treated litigant autonomy as a background procedural rule that had been incorporated by Congress into its jurisdictional framework.
One root of modern Supreme Court litigation individualism thus lies in early twentieth-century Progressive Era judicial federalism (and suggests some new avenues for defending a form of litigation individualism). The next Parts develop this claim.
II. Hugo Black and the Progressive Roots of Litigation Individualism
This Part develops how, under the influence of Justice Black, the New Deal Court invoked federalism to protect litigant-autonomy rights. I start in Section A by reviewing how the New Deal promoted federalism through a theory of separated powers. Then, starting in Section B, I explore how Hugo Black made litigant-autonomy rights a feature of New Deal federalism.
A. New Deal Federalism
1. The New Deal’s Expansion of State Court Power
Until the 1990s, scholars framed New Deal and Progressive constitutionalism as an effort to centralize power in the federal government.42Stephen Gardbaum, New Deal Constitutionalism and the Unshackling of the States, 64 U. Chi. L. Rev. 483, 483–84 (1997). That changed with Professor Stephen Gardbaum’s and Professor Edward Purcell’s independent seminal works on the role of states in New Deal constitutionalism.43See id.; Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958, at 217, 220–22 (1992). Gardbaum and Purcell painstakingly showed that the New Deal Court expanded state power on several fronts, and certainly no more than so than in the case of state courts.44Gardbaum, supra note 42, at 489–90, 550–52; Purcell, supra note 43, at 217, 220–22.
In the preceding Lochner era, federal courts had become a haven of “pro-corporate” law.45See Edward A. Purcell, Jr., Brandeis and the Progressive Constitution 66 (2000) (noting that “federal common law grew distinctly more favorable toward business in the late nineteenth century,” leading progressives to view the federal judiciary as a haven of “pro-corporate” law); see also David Marcus, Erie, the Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction, 48 Wm. & Mary L. Rev. 1247, 1252 (2007) (in early decades of the twentieth century, “many lawyers believed that the federal judiciary as a whole harbored procorporate, antiregulatory tendencies that limited the reach of state law”). Federal courts struck down federal and state consumer and labor protections under the Commerce Clause, the Dormant Commerce Clause, and substantive due process.46See Gardbaum, supra note 42, at 486–99, 526. At the same time, federal judges wielded their equitable power to issue injunctions against labor organizing and relied on Swift v. Tyson4741 U.S. 1 (1842). to reject anticorporate, pro-employee, and pro-consumer interpretations of the common law by innovative state judiciaries.48See Purcell, supra note 45, at 76-77 (“By leveraging diversity jurisdiction, substantive due process, and the independence of federal equity, [the Supreme Court] expanded the power of the national courts and provided employers with a lethal anti-union weapon.”). Together, writes Purcell, these trends fostered a “widespread belief that the federal courts were biased in favor of corporate interests.”49Purcell, supra note 43, at 217. Removal of state-filed actions into federal court based on diversity jurisdiction naturally became a central corporate defense strategy.50Purcell, supra note 45, at 66 (noting “corporations were often able to use removal to exploit” the “expen[se]” and “inconvenien[ce]” of federal litigation in order to “induce individual plaintiffs to abandon their claims or settle them for minimal amounts”).
The New Deal Court’s constitutional revolution was the culmination of the progressive attack on these trends. As Gardbaum writes,
[The New Deal Justices] viewed the activist federal courts as the chief culprits of the previous era and, as a result, reallocated power from them to state and federal legislatures—and to state courts . . . . [T]he [New Deal] revolution was not essentially or primarily an attack on either the states and their regulatory abilities . . . ; its target was first and foremost the public policymaking pretensions of the federal judiciary.51Gardbaum,supra note 42, at 565–66.
The most obvious of the ways the Court “attacked” federal courts’ “policymaking pretensions” is Erie Railroad Co. v. Tompkins,52304 U.S. 64 (1938). where the Court generally ended federal courts’ ability to ignore state substantive law precedents bearing on common law rights.53Id. at 71–80. Later, in Guaranty Trust Co. v. York,54326 U.S. 99 (1945). the New Deal Court took an expansive view (later moderated by the more nationalist Warren Court in Hanna v. Plumer55380 U.S. 460 (1965).) of what counted as “substantive” law under Erie, expanding the federal obligation of fidelity to state law into areas that older classification systems had categorized as procedural.56Guaranty Trust Co., 326 U.S. at 109.
The other way that the New Deal Court reined in federal courts was through its abstention rulings in Railroad Commission of Texas v. Pullman Co.57312 U.S. 496 (1941). and Burford v. Sun Oil Co.58319 U.S. 315 (1943). In these decisions, Justices Felix Frankfurter and Hugo Black held that federal courts must postpone or refuse exercising jurisdiction in order to allow state courts and agencies to address important questions of state law implicated in a given case.59Pullman, 312 U.S. at 501–02; Burford, 319 U.S. at 318; see Gardbaum, supra note 42, at 555–58 (discussing the New Deal Court’s abstention jurisprudence). Justice Black would build on these cases to extend abstention further near the end of his tenure in Younger v. Harris.60401 U.S. 37, 53–54 (1971).
The New Deal Court also constrained federal courts in two other significant ways. By the time of the New Deal, the well-pleaded complaint rule had evolved to limit original federal question jurisdiction to cases where the federal question arises through an element of the plaintiffs’ statement of their claim.61Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464 (1894); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 153–54 (1908). This allowed plaintiffs to exploit their control over the theory of the case to avoid removal on federal-question grounds.62Purcell, supra note 43, at 268–69. Alongside the well-pleaded complaint rule, Congress had, since the beginning of the federal court system, barred defendants sued in their home state from removing based on diversity jurisdiction.63Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79–80 (1789) (removal provision). This restriction allowed plaintiffs who had abandoned federal claims against out-of-state parties to block removal founded on diversity of citizenship by exploiting their power of horizontal forum selection.
The Court’s New Deal Justices doubled down on a state-protective approach to federal jurisdiction by construing Congress’s jurisdictional statutes in the areas of diversity, removal, and supplemental jurisdiction to contain narrow grants of authority, while reading statutory limits on federal power to enjoin state proceedings in the Anti-Injunction Act quite broadly. For example, in Shamrock Oil & Gas Corp. v. Sheets64313 U.S. 100 (1941). the Court held Congress’s removal scheme should be construed narrowly out of “[d]ue regard for the rightful independence of state governments.”65Id. at 108–09 (quoting Healy v. Ratta, 292 U.S. 263, 270 (1934)); id. at 109 (“Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.”).
Not all of these jurisdictional decisions came during the New Deal Court; some came later through opinions written by New Deal Justices. In 1969’s Snyder v. Harris,66394 U.S. 332 (1969). the Court, in an opinion by Justice Black, rejected claims that separate amounts sought by class members could be aggregated to meet diversity jurisdiction’s statutory amount in controversy requirement.67Id. at 335–38. This limited the ability of plaintiffs to use the class device as a vehicle for shifting claims that would otherwise be left to state courts into federal court. And in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers,68398 U.S. 281 (1970). decided the next year, Justice Black condemned “loose statutory construction[s]” of the Anti-Injunction Act, directing courts to instead construe its exceptions narrowly to protect the “fundamental constitutional independence of the States and their courts.”69Id. at 287 (“[S]ince the statutory prohibition against such injunctions in part rests on the fundamental constitutional independence of the States and their courts, the exceptions should not be enlarged by loose statutory construction.”). The combined result of these decisions was to constrain the scope of federal jurisdictional overlap with the states, whittle away at corporate defendants’ ability to transfer venue to federal court where the overlap did exist, and stymie federal efforts to interfere with pending state proceedings.
At the same time, in a series of rulings on state territorial jurisdiction, the New Deal Court vastly expanded the people and problems that state courts and state legislatures could reach. In International Shoe Co. v. Washington,70326 U.S. 310 (1945). the Court overturned over a century of limits on state jurisdiction over out-of-state entities, expanding the reach of state litigation to out-of-staters who had a minimum threshold of contacts with the state.71Id. at 316. And Home Insurance Co. v. Dick72281 U.S. 397 (1930). and its progeny expanded states’ legislative power to regulate extraterritorial conduct, requiring an event to have a fairly slight threshold connection to the state to activate its legislative jurisdiction.73See id. at 407–08 (suggesting a state may apply its law to transactions with minimum sufficient contacts with the state); see also Alaska Packers Ass’n. v. Indus. Accident Comm’n of Cal., 294 U.S. 532, 547–50 (1935) (holding that state courts have a “[p]rima facie . . . right” to apply the state’s own statutes to a transaction in which the state has an “interest”). The result was that the New Deal Court, even as it hemmed in the power of federal courts, massively expanded the reach of state courts and state legislatures.74Gardbaum, supra note 42, at 555–58, 563 (“As a result of these [New Deal] developments, together with later more interstitial ones, a number of scholars in the field have expressed the view that it is unclear if there are now any constitutional limitations on state choice of law.”).
2. New Deal Judicial Federalism and Separation of Powers
International Shoe and Dick aside, most of the preceding cases protected states as a byproduct of reconceptualizing the federal separation of powers. Take Erie. There, Justice Brandeis held general federal common law was unconstitutional because it involved an act of lawmaking that is vested in Congress, not the federal judiciary.75Erie R.R. Corp. v. Tompkins, 304 U.S. 64, 78–79 (1938). By reallocating the initiative to override state substantive law to the slower-moving federal political branches, this reinterpretation of the federal separation of powers had the practical effect of shifting the nexus of law elaboration to state courts, while simultaneously removing a major incentive for corporate defendants to shift litigation into federal courts.76Gardbaum, supra note 42, at 489, 550–55 (discussing how the New Deal “Court reallocated constitutional power between federal and state judiciaries” in Erie, and in the process made “state law . . . of chief importance in the guidance of primary private activity.” (internal quotation and footnote omitted)); see also Paul J. Mishkin, Some Further Last Words on Erie–The Thread, 87 Harv. L. Rev. 1682, 1683–85, 1684 n.10 (1974) (expanding on Erie’s separation of powers rationale); Bradford R. Clark, Erie’sConstitutional Source, 95 Cal. L. Rev. 1289, 1306–12 (2007).
Related separation of powers concerns underpinned New Deal Justices’ federal jurisdiction and Anti-Injunction Act rulings.77Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941) (“The power reserved to the states under the Constitution to provide for the determination of controversies in their courts, may be restricted only by the action of Congress in conformity to the Judiciary Articles of the Constitution.”); see also Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 287 (1970). A major theme of these rulings was that Article I and Article III subordinated the federal courts to Congress’s control, and did so in order to protect states from federal encroachment.78Shamrock Oil, 313 U.S. at 108–09; Atlantic Coast Line R.R., 398 U.S. at 287. As Justice Black would put it (quoting a passage that recurred repeatedly in New Deal cases), “[d]ue regard for the rightful independence of state governments . . . should actuate federal courts” and “requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.”79Snyder v. Harris, 394 U.S. 332, 340 (1969) (quoting Healy v. Ratta, 292 U.S. 263, 270 (1934)); see also Shamrock Oil, 313 U.S. at 109 (quoting Healy to the same effect).
Deference to Congress also colored how the New Deal Court would theorize abstention, which is today often portrayed as an act of judicial activism.80See Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71, 105 (1984); see also William P. Marshall, Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint, 107 Nw. U. L. Rev. 881 (2013). In Younger v. Harris, Justice Black argued the New Deal Court’s abstention cases were not just an outgrowth of a tradition of equitable discretion, but a corollary of federal courts’ subordination to Congress in Article III.81401 U.S. 37, 53–54 (1971). “Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts,” wrote Justice Black.82Id. at 43. That congressional policy—expressed in Congress’s subject matter jurisdiction and anti-injunction acts—also ought to inform the federal judiciary’s exercise of its own equitable power over state proceedings, offering a strong thumb on the scale favoring belaying or refusing injunctions against pending state proceedings implicating important state interests.83Id. at 43–44.
Black’s appeal to congressional supremacy in Younger has occasioned a long, famous debate in federal courts literature.84See Redish, supra note 80, at 86–88; Marshall, supra note 80 (surveying the debate); Richard H. Fallon, Jr., Why Abstention is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 550 (1985); Michael Wells, Why Professor Redish is Wrong About Abstention, 19 U. Ga. L. Rev. 1097 (1985). But the point is that the New Deal Court trafficked in a form of judicial federalism in which state courts were protected from interference principally through the system of separation of powers.85SeeGardbaum, supra note 42, at 490 (“[M]ost of [the New Deal era’s state-protective moves] derived less from considerations of the proper roles of state versus national legislatures (that is, considerations of federalism) than from a fundamental change in thinking about the proper roles of legislatures (whether state or federal) and courts with respect to matters of public policy. In other words, the constitutional revolution as a whole had more to do with separation of powers than with federalism, ushering in a new understanding of the respective legislative and judicial functions.”). For a modern defense of this idea, see Clark, supra note 76. Federal courts were constrained by fidelity to a supposed congressional directive against interfering with states (abstention, interpretation of the Anti-Injunction Act) and against drawing litigation to themselves (Erie, construction of removal statute).
B. Hugo Black’s Contribution: Litigant Autonomy as a Component of New Deal Federalism
While the story of New Deal Court’s promotion of judicial federalism through separation of powers doctrine is familiar, no one has explored the relationship between New Deal judicial federalism-cum-separation of powers and what scholars call “litigant autonomy”—the principle that injured parties should generally control the strategic choices concerning their own legal claims for relief.
The New Deal Court protected litigant autonomy with a particular end in mind: safeguarding plaintiff’s freedom to opt for a state over a federal forum for the litigation of their rights.86See Michael S. Greve, The Upside-Down Constitution 235 (2012). Protecting litigant autonomy as a helpmeet for federalism wasn’t uniformly embraced by all of the New Deal Justices. It was an approach pushed most consistently (albeit with inconsistent success) by one Justice in particular, Hugo Black.87See, e.g., Szukhent, 375 U.S. at 328–29 (Black, J., dissenting); Gilbert, 330 U.S. at 515–16 (Black, J., dissenting).
This Section begins developing these claims by introducing precursors to Black’s approach in the early Progressive Era, when a combination of turn-of-the-century populists and progressives joined forces with conservatives to advocate for protecting states from federal overreach by protecting plaintiffs’ power of forum choice during a national debate over the Federal Employers Liability Act.8845 U.S.C. §§ 51–60. An earlier version of the statute was enacted in 1906, but later declared unconstitutional. See infra note 94 and accompanying text. I don’t claim this FELA debate directly influenced Justice Black’s federalism-oriented conception of litigant autonomy, although it may have. But the debate shows that a federalism-oriented take on protecting litigant autonomy that would be reflected in Black’s jurisprudence had deeper roots in early twentieth-century progressive and populist movements.
In subsequent sections, I explore how Black’s jurisprudence reflected and refined these progressive populist themes, while incorporating them into a New Deal separation of powers–federalism framework once he joined the Court.
1. Black’s Forerunners: Early Twentieth-Century Progressive Populism and the Debate Over the Federal Employers Liability Act
The clearest precursor to Justice Black’s version of litigation individualism is found in debates over the then-monumentally controversial Federal Employers Liability Act (“FELA”). Enacted in 1906 at the urging of labor unions and President Theodore Roosevelt over the “bitter opposition” of the railroad industry,89John Fabian Witt, Federal Employers’ Liability Act (1908), Encyclopedia.com, https://perma.cc/K3YZ-8BNS.. FELA created a federal tort action for injured railroad employees, abolished the common law fellow-servant rule, and replaced traditional contributory negligence defenses with a comparative negligence scheme.90Purcell, supra note 43, at 165.
FELA was a prelude to the massive twentieth-century growth of federal regulation of labor and employment, matters that had in the nineteenth century been left to state police powers.91See id. at 163–65. And its passage sparked staunch opposition by business interests and judicial conservatives (who painted it, presciently, as the leading edge of massive federal aggrandizement to come),92John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law 194 (2004) (“railroad lawyers organized in the Railroad Attorneys’ Conference bitterly opposed . . . FELA.”); 45 Cong. Rec. 3997 (1910) (statement of Sen. Hale) (arguing FELA was part of the “aggrandizement” of the federal government); see also infra notes 94–107 and accompanying text. in ways that are reminiscent of the recent legal campaign against the Affordable Care Act.93Thomas B. Colby & Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527, 571–73 (2015).
FELA was promptly struck down in 1908 by the Supreme Court, which held the statute’s attempt to legislate a tort regime for the railroad workers engaged in wholly intrastate activity was an impermissible regulation of “local” activity under then-prevailing Commerce Clause doctrine.94The Employers’ Liability Cases, 207 U.S. 463, 502–04 (1908). In response, Congress enacted a narrowly tailored “second” FELA, which limited the federal comparative negligence cause of action for workplace injuries to injuries sustained by railroad workers engaged in interstate commerce.95Purcell, supra note 43, at 165. The second Act drew a new wave of attacks—culminating in the Connecticut Supreme Court’s controversial decision, Hoxie v. New York, New Haven, & Hartford Railroad Co.,9673 A. 754 (Conn. 1909). written by famed state judge and prolific Yale law professor Simeon Baldwin, an archconservative Republican turned conservative Democrat who was a devotee of laissez faire and natural law.97Id.at 756; Charles C. Goetsch, The Future of Legal Formalism, 24 Am. J. Legal Hist. 221, 228, 251 (1980); Simeon Eben Baldwin, Museum of Connecticut History, https://perma.cc/6WN9-853E.
Hoxie contained two rulings. The first, later overturned by the Supreme Court in 1912,98Second Employers’ Liability Cases, 223 U.S. 1, 53 (1912). was that the second FELA exceeded Congress’s commerce power and violated railroads’ substantive due process-protected liberty of contract to boot.99Hoxie, 73 A. at 759–60.
The second ruling was an impetus for a progressive push to expand plaintiff forum choice, the focus of this Article. Hoxie held that the new iteration of FELA was implicitly committed to exclusive federal jurisdiction.100Id. at 759. Baldwin’s argument on this point blended federalism values, choice of law-adjacent arguments, and legislative intent arguments in a way that is strange to our eyes. Because the statute contravened the fundamental remedial “policy” of Connecticut, said Baldwin, and clashed with existing state remedial procedures, forcing states like Connecticut to enforce claims under the statute offended their sovereignty and dignity.101Id. Given this, reasoned Baldwin, Congress couldn’t possibly have intended to force the states to enforce FELA.102Id. It must have implicitly intended to remit statutory claims exclusively to federal courts.103Hoxie’s outcome was congenial to the dual sovereignty theory of the establishment Taft-era legal conservatives, who believed that federalism properly involved a strict division of authority between state and federal spheres. Federal courts should litigate federal rights and cases with “national” implications, while states should ideally pursue “local” issues, which included much of labor law.Robert Post, Federalism in the Taft Court Era: Can it be “Revived”?, 51 Duke L.J. 1513, 1543 (2002) (quoting Lambert v. Yellowley, 272 U.S 581, 597–98, 603–04 (1926) (Sutherland, J., dissenting)).
The practical effect of Baldwin’s argument was, of course, to relegate claims under the statute to the line of courts that was widely viewed at the time to be most hospitable to corporate defendants. Compounding the problem, federal suits were then subject to federal venue rules that limited suits against the railroad to distant home states.104Purcell,supra note 43, at 182-83 (noting “the strict limitations of the general federal venue statute [at the turn of the century] . . . limited causes of action based on federal law to the district of defendant’s residence”). Federal question jurisdiction at the turn of the century also came with an amount in controversy limit.105Alexander A. Reinert, ErieDoctrine, State Law, and Civil Rights Litigation, 9 ConLawNOW 219, 225–26 (2019) (summarizing the history of the federal question amount-in-controversy requirement). Congress eliminated the amount-in-controversy requirement for general federal question jurisdiction in 1980. Id. at 226 & n.40. Together, the venue and amount in controversy restraints placed significant hurdles in the way of would-be plaintiffs prosecuting their right of action under the statute if federal courts alone were open to FELA claims.
Hoxie generated a national outcry: Former President Theodore Roosevelt targeted Baldwin’s “reactionary” Hoxiedecision in in his “New Nationalism” campaign during the 1910 midterm elections, leading to a continuing public feud between him and Baldwin that continued into the 1912 presidential race.106Goetsch, supra note 97, at 246–50. (Baldwin, the by-then-Democratic governor of Connecticut and strident critic of Roosevelt’s supposed authoritarianism, ran unsuccessfully for the Democratic party nomination against Woodrow Wilson in that race).107See Edmund Morris, Colonel Roosevelt 117 (2010).
FELA’s original sponsors responded in 1910 with a bill explicitly providing that FELA actions fell within the concurrent jurisdiction of the state courts, while expanding federal venue in FELA claims to include districts in which the action arose or in which the defendant conducted business.108Act of April 5, 1910, ch. 143, 36 Stat. 291, 291 (1910); Purcell, supra note 43, at 165 (summarizing the 1910 FELA amendment). In his work on the politics of federal jurisdiction, Litigation and Inequality, Purcell portrays Congress’s 1910 amendment as one driven exclusively by concerns about court access for the “little guy” plaintiff.109See Purcell, supra note 43, at 166 (quoting claims by supporters of FELA’s scheme that it was designed to offset advantages of railroads in civil litigation). And, certainly, this was part of the story behind the amendment. More than one Senator noted that limiting litigants to federal courthouses—often located at a distance from their home—would make it more difficult for injured railway workers to recover. For example, Senator Joseph Dixon of Montana, a progressive (and one of the few Republican officeholders to later bolt to Theodore Roosevelt’s Progressive Party),110See Paul W. Glad, Book Review, 62 J. Am. Hist. 720, 720 (1975) (reviewing Jules A. Karlin, Joseph M. Dixon of Montana: Part 1: Senator and Bull Moose Manager, 1867-1917 (1974)). argued that “it is a wise plan to give the party litigant the right of either the state or federal court at his discretion,” because if Hoxie’s interpretation prevailed, the “plaintiff litigant . . . could be dragged into a federal court 300 or 400 miles distant, which in many cases would be a denial of equity and justice to him.”11145 Cong. Rec. 4092 (1910) (statement of Sen. Dixon). See also Sen. Rep. No. 61-432 (“This amendment is necessary in order to avoid great inconvenience to suitors and to make it unnecessary for an injured plaintiff to proceed only in the jurisdiction in which the defendant corporation is an ‘inhabitant.’”); id. (“[T]he jurisdiction in which the charter of the defendant corporation was issued . . . may be at a place in a distant State from the home of the plaintiff, and may be a thousand miles or more from the place where the injury was occasioned.”); id. (“The extreme difficulty, if not impossibility, of a poor man who is injured while in railroad employ securing the attendance of the necessary witnesses at such a distant point makes the remedy given by the law of little avail under such circumstances.”).
But two other prominent Senators launched a broader attack on Hoxie, rooted in federalism and limited government concerns. The first was the fiery, self-proclaimed “constitutionalist” Democrat, Senator Joseph Bailey of Texas.112Sam Hanna Acheson, Joe Bailey, the Last Democrat 151, 242 n.2 (1932). Bailey (an early hero of both young Lyndon Baines Johnson and Sam Rayburn) was somewhat of a populist—he supported free silver and a federal income tax and opposed railroad “monopolists.”113For an overview of Bailey’s life and philosophy, see Acheson,supra note 112. For Bailey’s influence on LBJ and Rayburn, see Robert A. Caro, The Years of Lyndon Johnson: The Path to Power 189, 308–09 (1982). Throughout his career, Bailey had a fractious relationship with period reformers—supporting them in some cases and opposing them in others and ending his career tainted by accusations of selling out to Big Oil—leading biographers and historians to alternately portray him as a populist with links to progressive movement and an opponent of that same movement. Compare Acheson, supra note 112, at ix (characterizing Bailey as an opponent of “plutocratic power” based on his support for “social control” of the railroads and support for a graduated national income tax), with Lewis L. Gould, Progressives and Prohibitionists: Texas Democratic Politics, 1911-1921, 75 Sw. Hist. Q. 5, 7–8, 17 (1971) (depicting Bailey as a “conservative” barrier to progressive reform in Texas), and Lewis L. Gould, Comment to Weekend Reading: Preface: Sam Acheson (1932): Joe Bailey: The Last Democrat, Grasping Reality by Brad DeLong (Mar. 19, 2017, 3:54 PM), https://perma.cc/46UQ-ZARH (arguing Acheson’s depiction of Bailey as a populist is misleading and that “LBJ and Rayburn conjured up a mythical Bailey for their own worthy purposes, but no such Bailey ever existed”). His occasional alliance with progressives in the Senate nonetheless makes his voice part of the mix of the progressive-populist tradition that Black represented. But he was also a strong supporter of states’ rights and limited national government.114Gould, supra note 113, at 17. He identified instead as a “conservative” who resisted the twin evils of “socialism” (which he identified with the late nineteenth-century Populist party) and “monopoly” (which he associated with Republicans).115Lewis L. Gould, Robert Caro and George Reedy on Lyndon Johnson: An Essay Review, 87 Sw. Hist. Q. 57, 63–64 (1983) (relying on Bailey’s self-characterization to criticize Caro’s portrayal of Bailey as a “Populist”); Acheson, supra note 112, at 171 (noting Bailey’s statement that “[t]he trouble with the Republican party . . . is that it represents one extreme—monopoly—and on the other [extreme] stand our Populist friends representing the extreme of Socialism . . . I would escape them both by strengthening the great conservative party which holds to a safe and middle course”) (quoting 38 Cong Rec. 2353 (1904)). In the Senate, he sometimes allied with the “cold, phlegmatic” Republican Eugene Hale of Maine, a progenitor of the pre–World War II Old Right who, like Bailey, generally supported localism.116See Acheson, supra note 112, at 197 (noting period descriptions of Hale). For brief overviews of Hale, see Bio of the Day: Eugene Hale, H-NET Online, (Mar. 21, 2000),
https://perma.cc/52DC-RFS3 (“Hale’s career illustrates the complexity of Republican conservatism in the era of Theodore Roosevelt. He was conventional in his advocacy of the protective tariff and opposition to increased government regulation. His stance against imperialism, campaign against a bigger navy, and suspicion of Roosevelt’s ambitious foreign policy goals anticipated some aspects of later isolationist thinking.”). Today, Hale is mostly remembered for his fight against Roosevelt’s militarism and opposition to turn-of-the-century American adventures in imperialism. Id. His combination of limited government ideology and anti-imperialism reflected a strain of late nineteenth-century New England conservativism described in an article by E. Berkley Tompkins. See generally E. Berkeley Tompkins, The Old Guard: A Study of the Anti-Imperialist Leadership, 30 Historian 366 (1968).
By 1910, Bailey and Hale had already carved out a reputation as strong supporters of Congress’s power over federal courts—a reputation solidified a few years earlier in a previous debate over judicial review provisions of the Hepburn Rate Act,11740 Cong. Rec. 4982–90 (1906); Hepburn Rate Act, ch. 3591, 34 Stat. 584 (1906). which authorized the Interstate Commerce Commission (“ICC”) to set railroad shipping rates.118Hepburn Rate Act § 4, 34 Stat. at 589. One major issue in Congress’s debate over that Act had been whether to forbid federal courts from issuing preliminary injunctions against ICC rate orders. Senators John Spooner and Philander Knox, “Old Guard” pro-corporate Republicans, contended that while Congress could control federal jurisdiction, separation of powers dictated that Congress had no power, once jurisdiction was vested, to regulate or limit federal courts’ power to issue injunctions against an administrative agency.119The “Old Guard” Republicans, led by Nelson Aldrich, were a group of mostly Eastern Republicans protective of big business and opposed to the regulatory program of Roosevelt and midwestern “progressive” Republicans. See Daniel DiSalvo, Engines of Change: Party Factions In American Politics, 1868–2010, at 14–15 (2012); see also Logan Everett Sawyer III, Constitutional Principle, Partisan Calculation, and the Beveridge Child Labor Bill, 31 L. Hist. Rev. 325, 338 (2013). The “Old Guard” tended to favor strict limits on the legislative power of Congress over interstate commerce combined with powerful national role for the federal judiciary to protect the rights of business from progressive regulators. See DiSalvo, supra at 162–64 (noting the Old Guard favored federal judicial independence and constitutional restraints on federal regulation of business). They tended to side with jurists like Baldwin over the pro-state court, implicitly pro-plaintiff position of figures like Bailey and Hale (although the latter is often otherwise associated with the “Old Guard”). See Bio of the Day: Eugene Hale, supra note 116 (noting Hale was closely associated with Nelson Aldrich, the leader of the Republican “Old Guard”).
Senators Bailey and Hale had responded that Congress’s power to regulate federal courts’ injunctive power was plenary. In a stem-winding and widely reported speech to the Senate on this topic, Bailey, parroting Justice Daniel in Cary v. Curtis,12044 U.S. 236, 245 (1845). proclaimed that “the courts of the United States are all limited in their nature and constitution, and have not the power inherent in courts existing by prescription or by the common law.”12140 Cong. Rec. 4988 (1906). Rather, federal courts were strictly creatures of Congress, which not only had the power “to create and . . . destroy” inferior tribunals, but the lesser power to “limit and control” them.122Id. at 4984. And so, “these inferior Federal courts possess no power except what the laws of Congress have conferred upon them.”123Id. at 4988. Injunctive power, he concluded, thus does not follow automatically from a grant of jurisdiction, nor is it immune from legislative abrogation—it must be conferred by Congress and can be limited or even, he implied, taken away entirely.124Id. (noting that the breadth of Congress’s power over injunctions is implied by prior decisions deciding “that the courts of the United States have no power to issue executions on their judgments except such power be given by the laws of Congress”); id. at 4985 (statement of Sen. Hale) (expressing support for Bailey’s constitutional position).
Having previously defended the principle of federal courts’ subordination to Congress’s power to “limit and control,” Bailey and Hale now turned, in the 1910 FELA debate, into a bipartisan tag team in defense of congressional efforts to limit the reach of federal courts in order to protect state courts.
First, Senator Bailey decried the barriers to justice posed by exclusive federal jurisdiction. “I would rather,” said Senator Bailey, “leave the people [of States with unjust workers compensation laws] to suffer the injustice inflicted upon them by their own legislature than to carry the people of all the other States to distant, and sometimes unfriendly, federal courts.”12545 Con. Rec. 3996 (1910).
He and Hale then turned to rail against federal “aggrandizement” through an ever-expanding outward interpretation of the federal commerce power.126Id. at 3997 (statement of Sen. Hale) (arguing for jurisdictional reforms to offset FELA’s “aggrandizement” of the federal government). “The power of the Federal Government has been expanded and expanded, as is the case under this very bill, until now it is breaking down under the weight of a task impossible for any government on this earth to perform,” claimed Bailey.127Id. at 3996–97. Hale lamented the “apparent resistless and overwhelming sea that gradually is destroying all the landmarks of state jurisdiction and state rights.”128Id. at 3997.
That “aggrandizement” concern led them to tout plaintiffs’ power to choose a forum. If Congress would not undo the damage to the federal-state balance by refusing to reenact FELA, and the Court would not rectify it (by striking the latest iteration of the Act down and returning the understanding of the Commerce Clause power to its traditional limited compass), then the least Congress could do, argued Bailey, was to affirm litigants’ “ancient” right of “elect[ing]” to proceed in “either the state or the United States courts.”129Id. at 4050 (“[W]henever a litigant, in pursuance of the right conferred upon him here to resort to either the state or the United States courts, exercises his election and institutes his suit in a state court, the common carrier shall then have no right or power to remove it into a federal court. We are all familiar with the rule that when two courts have jurisdiction over the same subject-matter, the court whose jurisdiction is first invoked shall be permitted to proceed to a conclusion of the case. I only ask that that ancient and safe and just rule be written into this bill, so that if a citizen, in pursuance of the permission granted by the bill, does bring his suit in the state court, he shall not be dragged by the common carrier the distance of many miles and put to the burdensome expense incident to litigation in federal courts.”).
Bailey and Hale, indeed, argued that the Senate should go even further. Congress should not only reaffirm that states retain concurrent jurisdiction over FELA actions, but also eliminate defendants’ removal rights in FELA actions entirely, leaving the election of a state or federal forum completely in the plaintiffs’ hands.130See 45 Cong. Rec. 4050–51 (1910). Doing so would “prevent . . . further [federal] aggrandizement and . . . retain some of the jurisdiction and power of the States,” said Hale.131Id. at 3997. Indeed, added Bailey, he would favor eliminating the right of removal generally, not just for FELA suits.132See id. at 4050. Although his colleagues would not take such a radical step, they adopted his proposal to eliminate defendants’ removal rights in state-filed FELA actions with little debate.133See id. at 4093.
Edward Purcell reports that in the following decades, “employees took advantage of . . . FELA to bring the great majority of their claims in the state courts,” where they fared “quite well.”134Purcell, supra note 43, at 167. The statute’s forum provisions “significantly altered the balance of tactical advantage” against the railroads.135Id.
2. Hugo Black, the Inheritor of the Progressive-Populist Tradition of Litigation Individualism
The 1910 debate over Hoxie showcased two themes variously articulated by period progressives and populists: a broad understanding of congressional control over federal courts’ jurisdiction and remedial powers, and broad defense of plaintiffs’ freedom of electing where to sue. Broad congressional power over federal courts furthered “equity and justice,” by securing a strong legislative check on the power of pro-railroad federal judges; plaintiff forum choice equalized the playing field between little guy plaintiffs and corporate defendants, while offsetting the gathering “aggrandizement” of the federal government by preserving ample room for new federal rights to be litigated in the courts of the states.
These themes resurfaced in the New Deal thanks to one Supreme Court appointee, who was a young lawyer when the debate over FELA occupied by the public conversation—Hugo Black. Black carried forward, and linked, the claims that federal courts are strictly subordinate to Congress and that the right to choose a forum was an essential part of the congressional framework of judicial federalism. Black was not consistently successful in his effort to implement his vision, but he left marks on the development of judicial federalism between 1940 and 1970.
This Section develops this history, starting with an overview of Black’s career and basic jurisprudential commitments, before turning to the cases that illustrate his distinctive conception of judicial federalism as system of broad forum choice.
As FELA debate played out in the Senate in 1910, Hugo Black was a recent law school graduate just starting to make his name as a populist-leaning Alabama plaintiffs’ lawyer representing working class laborers and consumers against powerful Eastern corporations.136For discussions of Black’s early years as a plaintiffs’ lawyer, see James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter and Civil Liberties in Modern America 71–72, 77–82(1989); Steve Suitts, Hugo Black of Alabama: How his Roots and Early Career Shaped the Great Champion of the Constitution 126–28 (2005). By his own admission, Black was a foe of both corporate power and the power of federal courts.137See Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 328–29 (1964) (Black, J., dissenting) (expressing his concern that “[t]oday’s holding gives a green light to every large company . . . to contrive contracts which declare . . . that when such a company wants to sue someone with whom it does business, that individual must go and try to defend himself in some place, no matter how distant, where big business enterprises are concentrated”). When he ran for county solicitor, Black’s pitch was that he represented ordinary working people, not “a few capitalists or a ring of politicians.”138Simon, supra note 136, at 74.
As a young litigator, Black was a wily manipulator of jurisdictional rules. By 1910, federal jurisdictional law gave plaintiffs substantial power to control where to sue: The well-pleaded complaint rule (reaffirmed in Louisville & Nashville R.R. v. Mottley139211 U.S. 149 (1908). just two years earlier), allowed plaintiff to block defendants’ removal option by pleading state rather than federal theories of relief.140See Purcell, supra note 43, at 87–88 (noting that by the turn of the twentieth century, shaping the cause of action to avoid removal had become a common, and increasingly commented on, plaintiff tactic). The “home state” rule, a fixture of federal jurisdiction since the first Judiciary Act, complemented the rule by allowing plaintiffs asserting state claims against diverse parties to also block removal by suing defendants in their home-state courts.141See Judiciary Act of 1789, 1 Stat. 73, 79–80 (removal provisions). And in cases dating back to the antebellum period, the Court had held plaintiffs could further counter defendant’s removal rights by seeking less than the federal amount in controversy (which was then applicable to both federal question and diversity jurisdiction).142Purcell, supra note 43, at 90–91.
Black, consistent with period treatises that openly urged lawyers to exploit forum shopping opportunities,143Id. at 22 (noting that a late nineteenth-century treatise suggested that “‘[t]he forum of your choice’ . . . was an advantage ‘to be looked for with wide-open eyes and clutched with unslipping hold when found’”) (quoting John C. Reed, Conduct of Lawsuits Out of and in Court § 172, at 121–22 (1885)); Michael S. Greve, The Upside-Down Constitution 229 (2012) (noting that in the decades before Erie, “[f]orum shopping had . . . become a sport for what Brandeis antiseptically called a ‘wide range of persons’ . . . . Then as now, the shopping spree was largely driven by plaintiffs’ firms,” which evinced a preference for “a favorable state court jurisdiction”). used these rules to his advantage. Biographer Steve Suitts recounts one example: Hines v. Miniard,14486 So. 23 (Ala. 1920). a suit on behalf of a working-class white woman who alleged a railroad had injured her by violating Jim Crow laws.145Id.;Suitts, supra note 136, at 244–45. There, Black requested relief in an amount one cent below the amount-in-controversy limit then-applicable to federal proceedings.146See Suitts, supra note 136, at 244. Black represented both white and black workers against the railroads and other corporate interests, including work on behalf of one of the first integrated labor unions and reform efforts to reduce Black incarceration. But he did not scruple against taking racist cases or making racialized appeals when it suited his clients, client development, and political advancement. Seeid. passim.
This was, Suitts notes, a typical gambit of Black, who as a civil litigator
avoided federal courts like a litigious plague. . . . [H]e practiced so rarely in federal courts that in 1919, thirteen years after graduating from law school, Black had never appeared before a federal appellate court. In Black’s view, the federal bench was populated by Republicans (sometimes in the sheep’s clothing of Democrats) and former corporation lawyers, often a threatening redundancy that disadvantaged poor and working people.147Id. at 244.
On the eve of the Great Depression, Black leveraged his reputation as a defender of poor and working-class Southerners against East Coast corporate money (coupled with a notorious stint in the Ku Klux Klan, which in the 1920s had effectuated a takeover of Democratic party machines in the South) into a successful run for Senate as an ardent populist proto–New Dealer in 1927.148For an account of Black’s Senate run, see Simon, supra note 136, at 84–87; Roger K. Newman, Hugo Black: A Biography 101–15 (1994). For treatments of Black’s stint in the Ku Klux Klan, see id. at 89–100; Suitts, supra note 136, passim (attempting to explain the mystery of Black’s journey from KKK member to leading mid-century defender of racial equality and civil liberty). There, he became a mentee of the midwestern progressive George Norris, who famously carried out a (futile) battle to eliminate federal diversity jurisdiction.149Simon, supra note 136, at 88 (“The colleague whose work most influenced Alabama’s junior Senator was George Norris, the great progressive from Nebraska. Norris’s deep distrust of powerful corporate interests matched Black’s own . . . .”); Newman, supra note 148, at 132 (“Norris became Black’s ‘hero’ and, among contemporaries, always held a singular place in his heart.”). Norris, like Black, viewed the federal judiciary as a corrupt safe harbor for corporate capital.150Zambrano, supra note 12, at 2119 (“Senator George W. Norris—a former state-court judge and later cosponsor of the Norris-LaGuardia Act . . . doggedly pursu[ed] diversity’s abolition for over a decade.”); Purcell, supra note 45, at 77 (“Angered by the conservative bias of the judiciary and the administration’s pro-business appointments, Norris sought to limit the power of the federal courts and make them more responsive to popular sentiment and less to the opinions of business.”). For the background on Black’s relationship with Norris, which sprung from work on rural electrification, see Newman, supra note 148, at 131–32; see also Justice Black Dies at 85; Served on Court 34 Years, N.Y. Times, Sept. 25, 1971, at A1 (“Mr. Black was a Southern liberal, his views rooted in the Populist‐Progressive credo of John Peter Altgeld, the elder Robert La Follette and George W. Norris.”).
A staunch FDR loyalist, Senator Black, like Senator Bailey before him, believed federal courts were creatures of written code—subordinate to both a written Constitution and Congress’s legislative grants.151On Black’s support for FDR, see Simon, supra note 136, at 90 (“Black applauded FDR’s New Deal and voted for virtually every measure that the administration sponsored.”). On Black’s defense of FDR’s Court-packing scheme, see id. at 96–97 (recounting a radio address wherein Black argued that “the U.S. Constitution provided for a system of checks and balances, and one of the checks on an irresponsible judiciary . . . was the right of Congress to increase or decrease the number of members on the U.S. Supreme Court”). His belief in the legislative subordination of Congress turned him into a dogged defender of Roosevelt’s court-packing scheme in the Senate, for which Black was rewarded with an appointment to the Supreme Court in 1937.152Simon, supra note 136, at 97–99 (discussing Roosevelt’s appointment of Black to the Court). And he started his career on the Court with a reputation as a partisan defender of Roosevelt, the presidency, and the power of the legislative branch.153The result of this orientation was his infamous decision upholding Roosevelt’s Japanese internment plan in Korematsu v. United States, 323 U.S. 214, 219 (1944).
But over a thirty-year stint on the Court, he became (surprisingly, given his racist background) one of the leading civil rights champions and civil libertarians on the mid-century Supreme Court, and arguably its strongest advocate in the 1950s for ending racial segregation.154See Noah Feldman, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices 374–87 (2010) (describing Black’s role in Brown v. Board of Education). By the early 1960s, he was widely viewed by many progressives as a surprise hero and leader of the Court’s “left” wing.155Newman, supra note 148, at 571 (“By the mid-1960s Hugo Black had gained lasting recognition as one of the handful of truly great Supreme Court justices.”). Black’s late federalism decisions, particularly his dissent in South Carolina v. Katzenbach, 383 U.S. 301 (1966), in which he argued aspects of the Voting Rights Act violated constitutional structure, won him detractors on the left in the late 1960s and early 1970s, who charged that he betrayed progressive ideals in his late years. Katzenbach, 383 U.S. at 355–62 (Black, J., dissenting); Newman, supra note 148, at 567–70.
The key features of Black’s mature jurisprudence are familiar. Like other New Deal Justices, he supported the massive expansion of federal regulatory and legislative power that was the New Deal, marking a sharp contrast with many Southern Democrats of his youth.156Newman, supra note 148, at 226. But unlike Felix Frankfurter, who invariably sided with deference to the political process in the civil rights cases, Black was a “proto-originalist” who believed federal courts owe strict fidelity to the written Constitution, interpreted according to its plain meaning.157Simon, supra note 136, at 174–83 (surveying the rivalry and personal relationship between Frankfurter and Black during their years together on the Court); Will Baude, The Greatness of Justice Hugo Black, Wash. Post (Apr. 16, 2014), https://perma.cc/SQ5D-S72T (characterizing Black as a “proto-originalist/textualist,” who “rejected a number of doctrines that it would have been easy and politically palatable for him to accept—like substantive due process.”); Feldman, supra note 154, at 145 (“Hugo Black was the first justice to frame originalism as a definitive constitutional theory and to explain why and how he was using it. In this sense, Black was the inventor of originalism.”). This commitment led him to defend the incorporation of the Bill of Rights against the states through the Privileges and Immunities Clause, and his textualist readings of the Constitution’s rights provisions also led him to interpret them as powerful, revolutionary sources of civil liberty and equality in areas of racial justice, speech, and criminal procedure.158Feldman, supra note 154 at 376 (“The former Ku Klux Klan member was the strongest internal voice on the Supreme Court calling for a unilateral end to segregation. His vote expressed an absolutist commitment to a single constitutional idea: that the original meaning of the text must be given effect without regard to consequences. The Constitution meant what it said, and it had to be elevated above political concerns. For those who believe the Constitution should always be interpreted according to its original meaning, Black’s stance in Brown must count as heroic.”.
Black also staunchly rejected “substantive due process.”159Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (“The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.”); Griswold v. Connecticut, 381 U.S. 479, 511–12 (1965) (Black, J., dissenting) (“If these formulas based on ‘natural justice,’ or others which mean the same thing, are to prevail, they require judges to determine what is or is not constitutional on the basis of their own appraisal of what laws are unwise or unnecessary. The power to make such decisions is of course that of a legislative body.” (footnote omitted)); see also Newman, supra note 148, at 349. In response to charges that his libertarian interpretation of the Privileges or Immunities Clause and Bill of Rights was “activism,” Black argued he was the true practitioner of judicial restraint because he simply enforced the textual choices made by the framers of the Bill of Rights and the Fourteenth Amendment.160Black told interviewers late in his life, “[W]hen they say the Court did it, that’s just a little wrong. The Constitution did it.” Newman, supra note 148, at 352–53, 585–86.
Black would also, like Frankfurter, come to strongly embrace a version of “federalism”—a then jargony term that Frankfurter, the former law professor, had transported from academia into Supreme Court caselaw.161Weinberger,supra note 16, at 1745–47. Like other New Dealers—and not surprisingly for a former plaintiffs’ lawyer with a pronounced suspicion of lower federal judges—Black’s federalism had a notable bite in the judicial arena. And in good New Deal fashion, his federalism was also a byproduct of a reconceptualization of the relationship between federal courts and Congress in the national system of separation of powers.162For discussion of the relationship between federalism and separated powers in New Deal constitutionalism, see supra Section II.A.2. Like Senators Bailey and Hale, Black thought that federal courts were strictly subordinate to Congress’s control under Article III, and under Article I’s grant of power over inferior tribunals.163Snyder v. Harris, 394 U.S. 332, 341–42 (1969) (“Nor can we overlook the fact that the Congress that permitted the Federal Rules to go into effect was assured before doing so that none of the Rules would either expand or contract the jurisdiction of federal courts. If there is a present need to expand the jurisdiction of those courts we cannot overlook the fact that the Constitution specifically vests that power in the Congress, not in the courts.”). Power flowed to state courts, under Black’s understanding, because Congress had legislatively limited the power of federal courts¾and because federal courts, as creatures of Congress, lacked any repository of power to take initiative and grab power for themselves.164Id. at 340 (“[d]ue regard for the rightful independence of state governments . . . should actuate federal courts” and “requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined” (quoting Healy v. Ratta, 292 U.S. 263, 270 (1934))).
So described, Black’s jurisprudence—his commitment to legislative supremacy over federal courts and to judicial federalism—shares some overlap with the “constitutionalist” positions of Southern politicians like Joe Bailey from his youth. What others have missed, though, is that Black’s judicial federalism has an especially tight affinity to one particular theme from that debate.
Like fellow-Southerner Joe Bailey, Black—the one-time Alabama plaintiffs’ lawyer with a deep suspicion of federal judicial control over retail tort, contract, and labor ligation—thought plaintiffs should have a “substantial” right of individual plaintiffs to elect a local state forum, free from undue control by federal courts and corporate defendants.Like abstention, this was a right that Black rooted in the (implicit) command of the national democratic branches (and in federal courts’ strict subordination to them under the Constitution’s system of separated powers).
Black’s support for litigant autonomy over forum choice is not the product of any of his biggest, blockbuster decisions. But it is a steady theme in his votes and opinions over several areas, including rulings on jurisdiction proper and rulings on adjacent areas of procedural law.
This Section surveys the cases in which Black’s commitment to litigants’ freedom to choose a forum is most evident. I start the Section with Black’s protection of plaintiff’s control over forum choice horizontally at the federal level (in the areas of forum non conveniens and federal venue) and at the state level (in the areas of personal jurisdiction and choice of law). Then I end with his later vote for litigant autonomy over vertical forum choice in the closing years of his career.
The consistency with which Black pursued liberalization of plaintiff forum choice across distinct areas raises the question whether Black really had a coherent theory of “litigant autonomy,” and whether it really reflected a commitment to federalism. I address that question after surveying Black’s case output.
i. Black on Horizontal Forum Choice
Justice Black’s earliest opinions on plaintiff forum choice focused on the federal plane.165Ann Woolhandler & Michael G. Collins, Jurisdictional Discrimination and Full Faith and Credit, 63 Emory L.J. 1023, 1054 (2014) (reviewing Black’s jurisprudence related to horizontal federal forum shopping). By the 1940s, several developments gave personal injury plaintiffs a range of fora in which to sue corporate defendants. First, by 1910 most states asserted jurisdiction over out of state corporations through the device of registered agents for service of process.166Purcell, supra note 43, at 181; see also Woolhandler & Collins, supra note 165, at 1052 n.140. Even in the absence of registration of a service agent, railroads were subject to jurisdiction in the state the accident occurred (something true even before International Shoe).167Woolhandler & Collins, supra note 165, at 1052. In 1945, International Shoe seemed to further liberalize the reach of state jurisdiction by green-lighting extension of jurisdiction over anyone with amorphous “minimum contacts” in the state.168326 U.S. 310, 316 (1945). These developments triggered a spike in interstate forum shopping in the 1930s and 1940s.169See generally Purcell, supranote 43, at 177–99 (discussing the various causes of the rise in interstate forum shopping during the 1930s and ‘40s); see id. at 187 (discussing how the prevalence of interstate forum shopping in the 1930s and 1940s caused states like Minnesota, New York, California, and Illinois to become large “importing centers” of litigation).
New York was a particularly popular forum, because of common wisdom in the bar that New York juries at that time were generous to personal injury plaintiffs.170Woolhandler & Collins, supra note 165, at 1053. Railroads struck back against New York forum shoppers by invoking the doctrine of forum non conveniens, a doctrine that until that point had rarely been invoked outside of admiralty litigation.171Purcell, supra note 43, at 188; Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. 390, 402 & n.70 (2017). New York state courts embraced forum non conveniens to kick these lawsuits to other forums.172Woolhandler & Collins, supra note 165, at 1053–54. New York courts’ embrace of forum non conveniens would eventually gravitate into federal court, providing the impetus for a struggle between two camps of Justices over the use of forum non conveniens to combat federal forum shopping.173Id.; see Gulf Oil Co. v. Gilbert, 330 U.S. 501 (1947) (involving challenge to New York district court’s dismissal of suit for forum non conveniens).
At the start of his career on the Court, Justice Black led the camp that opposed liberal application of forum non conveniens. He favored, as Professors Ann Woolhandler and Michael Collins put it, protecting a “wide” ambit for plaintiffs’ choice of a federal forum.174See Woolhandler & Collins, supra note 165, at 1054, 1068; see also Alexander M. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty: An Object Lesson in Uncontrolled Discretion, 35 Cornell L. Q. 12, 15–17 (1949).
His early decisions on forum non conveniens were confined to FELA. In Baltimore & Ohio Railroad v. Kepner,175314 U.S. 44 (1941). a decision Black joined but did not author, an employee brought a FELA action in a New York district court arising out of an accident in Ohio.176Id. at 48. The railroad instituted its own suit in Ohio state court to enjoin the employee’s prosecution of the New York action, based on a forum non conveniens argument.177Id. at 47–48. The Supreme Court held that Ohio lacked equitable jurisdiction to enjoin the New York suit because FELA’s venue provision (the one beefed up by Senators Bailey and Hale) had given plaintiffs the “privilege” of a “wide . . . choice” of forum, and therefore implicitly revoked forum non conveniens objections to suits in a statutorily approved forum.178Id. at 50–52, 54. In Boyd v. Grand Trunk Western Railroad,179338 U.S. 263 (1949) (per curiam). the Supreme Court would refer to this statutory “right to select the forum” as a “substantial right,” and would construe FELA’s provisions prohibiting “contracts” immunizing railroads from “liability” consistent with protecting this right (by banning contracts restricting the choice of venue in FELA actions).180Id. at 265–66.
Black suggested this “substantial right” to choose a forum applied much more broadly than just FELA cases, a view he set out in an extensive dissent in 1947’s Gulf Oil Corp. v. Gilbert.181330 U.S. 501, 512–17 (1947) (Black, J., dissenting). There, Justice Jackson had held the statutory general venue statute did not prohibit application of forum non conveniens.182Id. at 507 (majority opinion). “These statutes are drawn with a necessary generality” wrote Jackson, “and usually give a plaintiff a choice of courts, so that he may be quite sure of some place in which to pursue his remedy. But the open door may admit those who seek not simply justice but perhaps justice blended with some harassment.”183Id.
Justice Black dissented, and rooted his narrower conception of federal forum non conveniens in an understanding of congressional intent.184Id. at 515 (Black, J., dissenting). It had long been understood, he argued, that courts at law had no power to deny remedies at law based on forum non conveniens.185Id. at 513. If Congress had wanted to change the traditional mandatory nature of remedial power in cases at law, Black reasoned, it would have said so.186Id. at 517. But “[n]either the venue statute nor the statute which has governed jurisdiction since 1789 contains any indication or implication that a federal district court [hearing claims at law], once satisfied that jurisdiction and venue requirements have been met, may decline to exercise its jurisdiction.”187Gilbert, 330 U.S. at 513. “Whether the doctrine of forum non conveniens is good or bad, I should wait for Congress to adopt it.”188Id. at 517; see also Woolhandler & Collins, supra note 165, at 1068 & n.211 (discussing how Black’s approach to horizontal distribution of power among state judiciaries in the areas of personal jurisdiction and Full Faith and Credit both reflected his commitment to “wide-open” forum choice).
Here, notably, the “substantial right” to choose a forum was not just a feature of FELA. It was a “deliberate” feature of the “jurisdiction[al]” framework created by Congress—one reflected not just in the federal venue statutes, but (presumably, given his reference to grants of federal subject matter “jurisdiction”) in statutory scheme of federal-state concurrent jurisdiction.189Gilbert, 330 U.S. at 513, 517 (Black, J., dissenting).
In Gilbert, Black lost his fight for expanding plaintiff forum choice on the horizontal federal plane.190Id. at 506, 512 (majority opinion). In a decision by Justice Jackson, the Court held that federal courts had a broad “common law” power to deny venue based on forum non conveniens.191Id. at 507. Congress soon ratified this holding in 28 U.S.C. § 1404(a) in 1948.19228 U.S.C § 1404(a). (Black, characteristically, would continue to argue, unsuccessfully, for a construction of the statute that narrowed its applicability.193See Ex parte Collett, 337 U.S. 55, 72 (1949) (Black, J., dissenting) (arguing in favor of the narrowing construction of statutory forum non conveniens articulated in Justice Douglas’s dissent in United States v. Nat’l City Lines, 337 U.S. 78, 84 (1949), which Black also joined).)
As he approached his second decade on the Court, Black turned to horizontal forum choice on the state plane, where he again promoted a “wide-open” plaintiff right to select the forum, this time with more success. His concurrence in International Shoe Co. v. Washington did so first by opposing the recognition of any serious constitutional constraint on state court personal jurisdiction (leaving the scope of long-arm jurisdiction almost entirely to state legislatures).194See Int’l Shoe Co. v. Washington, 326 U.S. 310, 324–25 (1945) (Black, J., concurring). Black’s approach, had it been adopted by the majority, would have dispensed with loose considerations like “fairness” or spin-off concepts like relatedness and purposeful availment, thereby securing states a far wider jurisdictional reach and, with it, a far wider selection of state courts in which plaintiffs could sue corporations doing business nationally.195See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1036–38 (2021) (Gorsuch, J., concurring in judgment) (discussing how the International Shoe framework ended up narrowing jurisdiction relative to the Pennoyerframework). Post-International Shoe, Black authored the Court’s opinion in McGee v. International Life Insurance Co., widely considered the single most expansive interpretation of state territorial jurisdiction in the Supreme Court’s post-International Shoe personal jurisdiction canon. 355 U.S. 220 (1957); Kyle Voils, Note, Making Sense of Sovereignty: A Historical Understanding of Personal Jurisdiction from Pennoyer to Nicastro, 110 Nw. U. L. Rev. 679, 687 (2016). “[T]he Federal Constitution,” he pronounced, “leaves to each State, without any ‘ifs’ or ‘buts,’ a power to tax and to open the doors of its courts for its citizens to sue corporations whose agents do business in those States,” period.196International Shoe, 326 U.S. at 324.
A few years later, in Hughes v. Fetter,197341 U.S. 609 (1951). Black turned to the ability of states to close their doors to suits based on foreign law.198Id. at 611. Hughes involved a suit between Wisconsin residents arising out of an accident in Illinois.199Id. at 610. Just as Hoxie had refused to entertain a federal cause of action based on strong local policy, Wisconsin courts refused to entertain the plaintiff’s Illinois wrongful death action based on a purported “local public policy” against enforcing other states’ wrongful death actions.200Id.; Hoxie v. N.Y., N.H. & Hartford R.R., 73 A. 754, 759 (Conn. 1909).
In Hughes, Black invoked a national policy in favor of court access which he argued was reflected, in part, in the Full Faith and Credit Clause.201Hughes, 341 U.S. at 613. On this understanding, explains Larry Kramer, the Clause dictates that while
“[a] State may adopt such system of courts and form of remedy as it sees fit . . . it may not, under the guise of merely affecting the remedy, deny the enforcement of claims [created by foreign law] . . . when its courts have general jurisdiction of the subject matter and the parties.”202Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 1985–86 (1997) (quoting Justice Brandeis in Broderick v. Rosner, 294 U.S. 629, 642–43 (1935), and arguing that Brandeis’s principle is consistent with Black’s approach in Hughes).
This is so, Hughes suggested, because the Clause reflected a “national policy” in favor of maximizing litigant opportunities to enforce each state’s law.203Hughes, 341 U.S. at 613. As Woolhandler and Collins note, Black’s invocation of a “national policy” seemed to conceive of the Full Faith and Credit Clause as a “grand bargain” among the several states that promotes their shared self-interest in maximizing the enforcement opportunities for rights they confer.204Woolhandler & Collins, supra note 165, at 1059 (“[Hughes’s] rationale seemingly conforms to what many modern conflict-of-laws scholars consider to be the aim of choice-of-law and full faith and credit rules: maximizing all states’ policies to the maximum extent.”); id. at 1060 (noting Hughes is often explained by reference to an implicit “grand bargain” among the several states to maximize enforcement of their policies). Each state shares an interest in ensuring the forums of other states are “maxim[ally]” open to claims asserting claims for relief under its law, and the Full Faith and Credit Clause vindicates that shared interest.205Hughes, 341 U.S. at 612 (referring to “the strong unifying principle embodied in the Full Faith and Credit Clause looking toward maximum enforcement in each state of the obligations or rights created or recognized by the statutes of sister states”).
Black’s approach in International Shoe and Hughes extended the pro-forum shopping policy he articulated in the forum non conveniens cases from the federal plane to the state plane.206The story here complements Michael Greve’s account of the development of a “[f]ederalism for [p]laintiffs and [s]tates” through the New Deal Court’s expansion of personal jurisdiction and choice of law doctrine. See Greve, supra note 143, at 234. Under Black’s approach in International Shoe—had it prevailed—states could exercise their personal jurisdiction over out of state corporations subject to few constitutional constraints.207326 U.S. at 323–25. And by providing that state courts cannot close their courts to claims under foreign statutes or legal principles, Hughes made state-created causes of action fully portable. Together, the two decisions charted a maximally expansive field for plaintiff forum choice in state-level corporate litigation. As Woolhandler and Collins put it, “Justice Black’s positions . . . indicate that he saw maximizing plaintiffs’ forum choice as a worthy national policy.”208Woolhandler & Collins, supra note 165, at 1068.
At the same time, Hughes continued Black’s insistence in the forum non conveniens cases that federal courts themselves lack power to impinge on forum choice. At the federal level, federal courts were constrained from doing so by their fidelity to Congress. At the “horizontal” state-to-state level, the several states’ collective interest in forum choice is cemented through the Full Faith and Credit Clause and therefore hardwired into the system.
ii. Black on Vertical Forum Choice
In Gilbert, near the beginning of his time on the Court, Black had suggested that plaintiff forum choice was a basic feature of Congress’s regulation of federal “jurisdiction.”209Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 513–17 (1947) (Black, J., dissenting) (attributing a policy of forum choice to the “deliberate” design of Congress’s “venue” and “jurisdiction[al]” enactments); see also supra note 188 and accompanying text. In his final years on the Court, Black’s campaign for expanding forum choice would turn to the jurisdictional framework of federal-state concurrency and promote vertical plaintiff forum choice.
The first case to do so—and arguably among the most illuminating case for understanding Black’s approach to federalism—is State Farm Fire & Casualty Co. v. Tashire,210386 U.S. 523 (1967). which today languishes in obscurity.211Tashire is frequently mentioned for its holding that the federal interpleader statute requires only minimum diversity of citizenship. See, e.g., Grupo Dataflux v. Atlas Glob. Grp., 541 U.S. 567, 577 n.6, 579 (2004). But I have found no significant academic treatments of its broader discussion of forum choice and forum shopping. Although Black did not write Tashire (Justice Fortas did), he was the Court’s most active questioner during oral argument, and the ultimate decision followed the same arc as his earlier horizontal federalism cases, setting the theme that his jurisdictional decisions in the last four years on the bench would follow.212See Transcript of Oral Argument, State Farm Fire & Cas. Co.v. Tashire, 386 U.S. 523 (1967) (No. 391).
Tashire was an insurance dispute arising out of a California traffic accident.213386 U.S. at 525. A Greyhound bus ran into a truck in Shasta County, killing two bus passengers, while injuring thirty-three others, along with the bus driver and both occupants of the pickup.214Id. One of the deceased bus passengers and several of the injured passengers were Canadians; the others were citizens of five different American states.215Id. Four passengers sued Greyhound, as well as the bus and truck driver, in California state court.216Id. Before other suits could be filed, the truck driver’s insurer, State Farm, an Illinois corporation, filed an interpleader action in Oregon district court (the state where the truck driver, his passenger, and the Greyhound bus driver resided) alleging that it would face multiple lawsuits respecting its insurance assets.217Id. at 525–26. Interpleader is a mechanism by which holder of a limited fund (here insurance proceeds) can consolidate claims affecting the fund in a single equitable proceeding designed to settle claims and distribute the fund to all claimants.218See Fed. R. Civ. P. 22. It is a remedy authorized both by a federal statute—the Federal Interpleader Act—and Federal Rule of Civil Procedure 22.21928 U.S.C. §§ 1335, 1397, 2361; Fed. R. Civ. P. 22.
Tashire is remembered today (when it is remembered at all) as the case that affirmed—in a brief, preliminary discussion—the constitutionality of the Federal Interpleader Act’s authorization of federal jurisdiction premised on minimum diversity of citizenship.220386 U.S. at 530–31; see also supra note 211 and accompanying text. But much of the briefing in the case and questions at oral argument, led by Justice Black, focused on arguments in an amicus brief about the effect of federal interpleader on plaintiffs’ forum choice.221Petitioners’ Brief at 31–32, State Farm Fire & Cas. Co.v. Tashire, 386 U.S. 523 (1967) (No. 391) (noting the gains in “judicial administration” because “[c]onsolidating 35 personal injury trials in a single proceeding necessarily creates substantial savings of judicial time and public expense and avoids the serious risk of contradictory answers to the same question as to persons similarly situated”) [hereinafter Petitioners’ Brief]; id. at 37–38 (noting “[t]he substantial advantages to the claimants of combining their resources to establish liability in a single proceeding” enabled by federal consolidation); see Transcript of Oral Argument, supra note 212.
That amicus responded to State Farm’s claim that the interpleader device authorized an injunction against any state actions arising out of the accident against its insured, whether or not they directly involved suits against State Farm premised on its insurance liability.222Tashire, 386 U.S. at 526 (State Farm sought to “require all claimants to establish their claims against [the truck driver] and his insurer in this single proceeding and in no other, and . . . to discharge State Farm from all further obligations under its policy—including its duty to defend [the truck driver] in lawsuits arising from the accident”). Greyhound, one of the parties interpleaded by State Farm agreed and sought to piggyback off of State Farm’s interpleader action by enjoining suits against it and its driver, who were not insured by State Farm, on the theory that these suits may have ripple effects on State Farm’s insurance exposure.223Id. at 527 (“Greyhound, however, soon switched sides and moved that the court broaden any injunction to include [the bus driver] and Greyhound among those who could not be sued except within the confines of the interpleader proceeding.”).
In effect, State Farm’s and Greyhound’s argument would have transformed interpleader into a kind of mandatory federal consolidation device capable of preempting litigants’ ability to pursue factually interrelated claims arising out of an accident in their own chosen state forum whenever one of the parties has liability insurance. So interpreted, interpleader would also resemble a bill of peace and bear obvious comparisons to interpretations of the mandatory class action provision of Rule 23 rejected three decades later in Ortiz v. Fibreboard.224527 U.S. 815, 864–65 (1999). State Farm and Greyhound embraced this consequence: adopting their expansive view of federal interpleader authority would, they argued, further the goal of efficient administration of mass tort claims by coercively transferring them to a single federal forum.225Petitioners’ Brief, supra note 221, at 31–32 (“The use of interpleader for the consolidation and trial of claims against a limited fund arising out of mass torts promotes important goals of judicial administration, goals which have been freely implemented throughout the Federal Rules.”); id. at 37 (noting that “[t]he substantial advantages to the claimants of combining their resources to establish liability in a single proceeding . . . compels the conclusion that this inconvenience [entailed by overriding their choice of forum] is not excessive”).
Lawyers for plaintiffs in a different accident in Medford, Oregon—also involving Greyhound—addressed this pro-consolidation argument in an amicus brief, which centered the effect of interpleader on litigants’ forum choice and federalism, in a way that echoed the arguments for forum choice under FELA sixty years earlier.226Brief Amicus Curiae at 2–4, 23, State Farm Fire & Cas. Co.v. Tashire, 386 U.S. 523 (1967) (No. 391) [hereinafter “Medford Amicus Brief”]. “Interpleader jurisdiction should not be transformed into a device to obtain injunctions against prosecution of ordinary tort actions in forums selected in the usual manner,” argued amici.227Id. at 23. “Such transformation would cause an unwarranted and inappropriate extension of federal jurisdiction” by preempting plaintiffs’ power to opt for a state forum.228Id.; see also id. at 9 (“Allowance of the lnterpleader Relief Sought Would Cause an Unwarranted Extension of Federal Jurisdiction and Give the Tort-feasor and Insurer an Unwarranted Advantage in Choosing the Forum”).
State Farm and Greyhound, in turn, acknowledged the impact of interpleader on plaintiffs’ state forum choices, but argued that this interest had to be balanced against the interest in efficient resolution of complex claims; plaintiff’s interests in pooling resources in an aggregated proceeding; the defendant’s interest in avoiding coercive settlement pressure resulting from defending against multiple claims in different forums; as well as the public interest in deterring plaintiff forum shopping.229See Motion for Leave to File Response to Brief Amici Curiae and Petitioners’ Reply Brief to Brief Amici Curiae at passim, State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967) (No. 391). The argument anticipated many of the standard arguments made in favor of federal consolidation of mass tort litigation today.
In an opinion by Justice Fortas, joined by Justice Black, the Court sided with the Medford amicus brief, adopting its arguments.230Tashire, 386 U.S. at 533–35. State Farm and Greyhound were not entitled to interplead and enjoin suits that were not directly against State Farm for its insurance assets.231Id. (State Farm was not “entitle[d] . . . to an order both enjoining prosecution of suits against it outside the confines of the interpleader proceeding and also extending such protection to its insured, the alleged tortfeasor. Still less was Greyhound Lines entitled to have that order expanded so as to protect itself and its driver, also alleged to be tortfeasors, from suits brought by its passengers in various state or federal courts. . . . To the extent that the District Court sought to control claimants’ lawsuits against the insured and other alleged tortfeasors, it exceeded the powers granted to it by the statutory scheme.”). State Farm was entitled to an injunction that restrained litigants “from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself.” Id. at 535. “[A] resident of California, injured in California aboard a bus owned by a California corporation,” wrote Fortas, “should not be forced to sue that corporation anywhere but in California simply because another prospective defendant carried an insurance policy.”232Id. at 535.
“We recognize, of course,” wrote Fortas,
that our view of interpleader means that it cannot be used to solve all the vexing problems of multiparty litigation arising out of a mass tort. But interpleader was never intended to perform such a function, to be an all-purpose ‘bill of peace.’ Had it been so intended, careful provision would necessarily have been made to insure that a party with little or no interest in the outcome of a complex controversy should not strip truly interested parties of substantial rights—such as the right to choose the forum in which to establish their claims, subject to generally applicable rules of jurisdiction, venue, service of process, removal, and change of venue.233Id. at 535–36 (emphasis added).
The language of the opinion—particularly its appeal to Congress’s solicitude for plaintiffs’ “substantial . . . right” to “choose the forum”—harkened back to debates over forum non conveniens two decades earlier, where Black had argued Congress’s general regulation of federal courts had placed plaintiff forum choice at the center of its venue design.234Compare id. at 536, with Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 513, 517 (1947) (Black, J., dissenting) (attributing a policy of forum choice to the “deliberate” design of Congress’s “venue” and “jurisdiction[al]” enactments) and Boyd v. Grand Trunk W. R.R., 338 U.S. 263, 265–66 (1949) (per curiam) (referring to legislatively granted forum choice as a “substantial right” conferred by FELA in language nearly identical to Tashire). There, the Supreme Court also described forum choice as a “substantial right”—an important legislative creation.235Boyd, 338 U.S. at 265–66.
Here, implicitly, the legislative source of the “right” was jurisdictional concurrency between federal and state courts, and the ring of ancillary rules—the well-pleaded complaint rule, the home state rule, and other limits on defendants’ removal rights—that gave plaintiffs the power to exploit the power of forum choice within the field of federal-state concurrency. These rules all may have developed haphazardly as part of the push-pull of contending forces fighting over the ultimate reach of the federal judiciary, but in decisions like Gilbert, Black viewed them as expressions of a legislative preference for forum choice.236Gilbert, 330 U.S. at 513, 517 (Black, J., dissenting). In Tashire, the Court seemed to agree.237Tashire, 386 U.S. at 535–36. Interfering with injured parties’ “substantial right” to “choose [a] forum” within the existing field of concurrent federal-state jurisdiction was, the Medford amicus had put it, “unwarranted and inappropriate extension of federal jurisdiction.”238Id. at 536; Medford Amicus Brief, supra note 226, at 23. Fidelity to the legislative preference reflected in the system of concurrency accordingly required adopting the narrower of available constructions of procedures, like interpleader, that trench on plaintiffs’ power of forum choice.
Black did not write the opinion in Tashire, nor do his papers include any correspondence on the case. But the Medford amicus’s melding of litigant autonomy and federalism had obvious appeal to him and set a theme he would carry forward in his final years on the Court. Two years after Tashire, in Snyder v. Harris, Black would invoke federalism concerns about another feature of federal procedure, the class action.239See Snyder v. Harris, 394 U.S. 332, 333, 340 (1969). Like interpleader, the class device is a vehicle, as Black put it, for shifting “into the federal courts numerous local controversies” that many class members would otherwise prosecute at the state level.240Id. at 340. To limit its use to shift such litigation into federal court, Black interpreted the diversity statute to require treating class members’ claims as separate controversies—rather than as an aggregate unit—for jurisdictional purposes, meaning each claimant must individually meet the amount in controversy threshold.241See id.
Then, a year after Snyder, Black would again invoke separation of powers and federalism in Atlantic Coast Line Railroad v. Brotherhood of Locomotive Engineers to condemn “loose statutory construction[s]” of the Anti-Injunction Act, which generally forbids federal courts from enjoining litigation initiated at the state level.242398 U.S. 281, 286–87 (1970). Federal courts, he said, must construe the AIA’s exceptions narrowly to protect the “fundamental constitutional independence of the States and their courts” in our system of “dual court[s].”243Id.; see also id. at 297 (“Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy. The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.”). A year later, Black, in his last year on the Court, penned a paean to “Our Federalism”—to “the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways”—in Younger v. Harris, his last federal abstention decision.244401 U.S. 37, 44 (1971).
His vote in Tashire, in effect, presaged the federalism output of his final run of decisions, and was the logical culmination of Black’s longstanding interest in protecting forum choice, and, with it, litigants’ free access to take their claims into the states.
C. Did Hugo Black Have a Coherent Theory of “Litigation Individualism”?
As Professor Linda Mullenix notes, “[t]he right to choose a forum is perhaps the most fundamental and essential litigation right” embraced by the concept of litigant’ strategic autonomy.245Linda S. Mullenix, Another Choice of Forum, Another Choice of Law: Consensual Adjudicatory Procedure in Federal Court, 57 Fordham L. Rev. 291, 303 (1988). Together, Black’s opinions and votes in cases like Kepner, Boyd, Gilbert, Hughes, and Tashire recognize a significant degree of legal protection for that right. Plaintiffs had a “substantial right”—an individualized one that vests in each individual “interested” claim-holder, Tashire says—to control where to sue both horizontally at the federal level and vertically.246State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 536 (1967) (each “interested” party has a “substantial right” to choose a forum). Opinions that Black joined or authored argued that changes to federal laws that infringe on that “substantial right” should come through further legislation or rulemaking, not latitudinous judicial constructions of existing federal rules.
Yet, by resisting infringement on the individual litigants’ right to control their claims in order to secure freedom of forum selection across so many disparate areas—venue, state personal jurisdiction and choice of law, federal jurisdiction proper, and adjacent federal procedure—Black’s output raises the distinct possibility that he was not a systemic thinker about litigant autonomy, but instead had developed strongly held preferences about court access as a plaintiffs’ lawyer and bent different formal areas to fit those preferences.247Michael Greve levels a similar charge of unprincipled jurisprudence against Justice Brandeis in Erie. See Greve, supra note 143, at 226, 229 (arguing against taking Brandeis’s constitutional arguments at face value; they are “better understood as [a] strategic and instrumental” effort to “curtail corporate America’s access to federal courts and their common law”).
Whether or not Black had a fully developed theory of litigation individualism, Black’s decisions walked up to a well-developed theory, and we can sketch that’s theory’s contours. In Gilbert, Black voted against disrupting the plaintiff’s choice of forum and treated the source of the legal limit on that choice as a corollary of the traditional rule of the common law of remedies—the law of claiming and relief, an area apart from statutory definitions of the scope of federal jurisdiction.248Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 513–15 (1947) (Black, J., dissenting). Courts at law had always treated remedial rights as mandatory and so had no discretion to decline remedial jurisdiction in deference to a more convenient forum.249Id. (“For reasons peculiar to the special problems of admiralty and to the extraordinary remedies of equity, the courts exercising admiralty and equity powers have been permitted at times to decline to exercise their jurisdiction. This exception is rooted in the kind of relief which these courts grant and the kinds of problems which they solve. . . . No such discretionary authority to decline to decide a case, however, has, before today, been vested in federal courts in actions for money judgments deriving from statutes or the common law.” (citations omitted)). That traditional limitation on the discretion of courts at law was, reasoned Black, assumed by Congress when it enacted regulations of both venue and federal “jurisdiction.”250Id. at 515 (“To engraft the doctrine of forum non conveniens upon the statutes fixing jurisdiction and proper venue in the district courts in such actions, seems to me to be far more than the mere filling in of the interstices of those statutes.”).
The same idea, that background rules of remedies are assumed by Congress’s framework regulating the federal courts, with implications for who should alter the rule in our system of separated powers, lurks in the back of Tashire. By the late 1960s, it was common to treat the rule that a litigant controls their claim as species of procedural (or forum-specific) law—and a judge-made one at that (in effect, a feature of the old “general law” of remedies).251By the late 1960s, many period commentators seemed to assume the rule was substantially a matter of uncodified federal judicial policy, rather than a rule either codified in Rule 17, supplied by substantive law, or dictated by due process. SeeMichael C. Ferguson, The Real Party in Interest Rule Revitalized: Recognizing Defendant’s Interest in the Determination of Proper Parties Plaintiff, 55 Calif. L. Rev. 1452, 1455–56 (1967) (noting that most courts do not “read [Rule 17] as expressing a policy judgment as to which of [the] many possible persons should sue in any given case” and that, as presently interpreted, it does not answer “[w]ho should be able to pursue the remedy” for a given injury); id. at 1486 (noting inconsistency in caselaw and among period commentators but suggesting the real party in interest rule is properly conceived as “procedural”—and so limited to the forum—rather than substantive); John E. Kennedy, Federal Rule 17 (b) and (c): Qualifying to Litigate in Federal Court, 43 Notre Dame Law. 273, 279, 281 (1968) (noting at different junctures that determining whether Rule 17, state law, or free-floating “federal policy” adopted in the shadow of Rule 17 govern who can represent claims in court is a murky question). In recent years, there has been a resurgence of interest in the idea that Rule 17 was originally intended to codify some key common law standing principles at the federal level, and so is the real, lost source of authority for the “prudential” bar on third-party standing. See 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3531, at 23–24 (Supp. 2022) (“‘Some courts have described Rule 17’s real-party-in-interest requirement as essentially a codification of [the] nonconstitutional, prudential limit on standing’ that denies a right to sue to enforce the rights of third parties.” (quoting Rawoof v. Texor Petrol. Co., 521 F.3d 750, 756–57 (7th Cir. 2008))). Tashire’s invocation of the “substantial right” to choose a forum is consistent with this view of the litigant claim-control rule. The right to choose a forum is a consequence of a more general right of litigants to control strategic choices affecting their right to relief. Grants of concurrent jurisdiction, we might say, build on that right. They efficiently spread litigation to the states because the pre-Erie rule of “general law” of remedies gives interested parties this control.252See Leon G. van Wert, Note, Forum Shopping in FELA Actions, 14 U. Fla. L. Rev. 303, 303–04 (1961). And plaintiffs (as they did after the 1910 amendments to FELA) have generally used that right to opt for their own local state forum.253Id. Individual claim control is thus a background rule, or “enforcement default,” that empowers concurrency to protect states.254For more on the idea of “enforcement defaults,” see generally Sergio J. Campos, Erie as a Choice of Enforcement Defaults, 64 Fla. L. Rev. 1573 (2012). In our system of separated powers, the Court must narrowly construe new statutes impinging on individuals’ ability to use their claim-control entitlement “to choose a forum.” Doing otherwise would undermine assumptions that shape and give force to Congress’s express jurisdictional enactments.255Viewed this way, the relationship that Black envisioned between litigants’ “right to choose a forum” and congressional policy resembles the relationship between preclusion doctrine and congressional policy in a later Rehnquist era decision, Martin v. Wilks. 490 U.S. 755 (1989). There, the Court adhered to a federal common law rule of preclusion not because Congress legislated it, but because it would unsettle assumptions about the scope of (common law) preclusion underpinning Federal Rule 19. Id. at 763, 765 (drafters of Federal Rules framed compulsory joinder and intervention rules against the background principle that “a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined,” making “attribution of preclusive effect to a failure to intervene . . . quite inconsistent with Rule 19 and Rule 24”). Rule 19, Wilks assumed, bult on traditional preclusion rules, and therefore insulated them from judicial updating. Id.
Black himself also famously conceptualized abstention in exactly this way—as interaction between traditional remedial rules and written jurisdictional law. In Younger v. Harris, written four years after Tashire, Black justified abstention by reference to the rule, which he had alluded to in Gilbert, that courts of equity have remedial discretion and can exercise it to abstain from injunctions when necessary to promote interstate comity.256Younger v. Harris, 401 U.S. 37, 46 (1971); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 516–17 (1947) (Black, J., dissenting). Congress, Black argued, granted jurisdiction against the background assumption that federal courts possessed the power to abstain from granting equitable relief out of respect for coequal sovereigns (the states).257Harris, 401 U.S. at 43–44 (“[T]he basic doctrine of equity jurisprudence [is] that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. . . . This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of ‘comity,’ that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as ‘Our Federalism.’”). Given Congress’s solicitude for states—expressed through grants of jurisdictional concurrency, strict statutory limits on antisuit injunctions, and the like—Congress should be presumed not to have displaced that discretion unless it clearly speaks to the contrary.258Id. at 43 (attributing the policy in favor of protecting states from federal interference to a consistent policy of Congress, dating back to the “beginning of this country’s history”). Hence, in Black’s telling, abstention is not an act of judicial activism, as later critics would charge, but an act of restraint in deference to democratic legislative policy (and one that also ought to be altered only through the national democratic process).
A similar set of ideas are again suggested by Tashire. Like abstention, litigant autonomy is rooted in a longstanding remedial principle—in this case, that real parties in interest control prosecution of their own claims. Congress created the system of concurrency against the backdrop of that principle, and the system of concurrency gains much of its power to protect states from it. Presumably, then, Congress, the creator of the concurrency system, does not favor radical diminution of litigants’ control over claims within the field of concurrency, and remedial statutes and procedures affecting that autonomy, like the federal interpleader act, should be construed accordingly.
This understanding of Black’s approach to litigant autonomy also, finally, fits with—and even seems to prefigure, albeit in a distorted way—the so called “prudential standing” doctrine that would take shape in the decades after Tashire. That line of doctrine also posited that the real party in interest generally prosecutes their own interests in federal court.259See S. Todd Brown, The Story of Prudential Standing 42 Hastings Const. L.Q. 95, 102–07 (2014) (explaining that the main cases that developed the concept of prudential standing from the late 1960s were Flast v. Cohen, 392 U.S. 83 (1968); Warth v. Seldin, 422 U.S. 490 (1975); and Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979)). Prudential standing rules are often conceptualized as a branch of judge-made—e.g., “common law”—policy that furthers structural values.260See, e.g., Ernest A. Young, Prudential Standing After Lexmark International, Inc. v. Static Control Components, Inc., 10 Duke J. Const. Law & Pub. Pol’y, 149, 151 (2014) (“[P]rudential standing doctrines are often challenged as judge-made law, existing in Griswoldian ‘penumbras’ of Article III.”). The “right to choose a forum” in New Deal jurisprudence sometimes seemed to be conceived in this way—as a structural side-benefit of the traditional (and judge-made) remedial rule that interested parties generally get to control their own claims. Tashire, though, implicitly treated this rule not as merely “prudential,” but as a rule that Congress implicitly wants federal courts to continue following because it operates in conjunction with concurrent jurisdiction to scatter litigation into the states, and thereby safeguard states’ role in shared governance.261State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 535–36 (1967).
Together, then, these positions seem to offer the most attractive theoretical underpinnings for Black’s approach to judicial federalism, and fit contemporaneous trends as well as Black’s own reasoning in adjacent areas of law: Federal courts are reined in by traditional remedial principles, including the right of interested parties to control the prosecution of their own claims; Congress’s jurisdictional scheme implicitly approves of (and builds on top of) those traditional remedial principles in order to spread litigation among the states; and in our system of separated powers it is therefore Congress’s job, not federal courts, to alter these principles (and thereby aggrandize federal courts at states’ expense). All of this means courts should not interfere with litigant autonomy to pick a forum absent strict authorization by Congress.262As a theory of Black’s own reasoning, the argument here involves abduction, or “inference to the best explanation.” See Lawrence Solum, Legal Theory Lexicon: Inference to the Best Explanation (Abduction), Legal Theory Lexicon (Dec. 27, 2020, 9:00 AM), https://perma.cc/SMV8-TQDY. I am indebted to Larry Solum for this observation.
Despite the difference in formal scaffolding, there are notable parallels between the theory of litigation individualism suggested by Black’s cases and the modern version. First, both the modern variant of litigation individualism and the Black-inspired version frustrated federal consolidation in mass litigation cases—the modern version by frustrating expansion of mandatory class actions and aggregation of mass tort claims cases in Ortiz and Amchem,263Ortiz v. Fibreboard Corp., 527 U.S. 815, 845–48 (1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624–29 (1997). and the precursor by frustrating innovative uses of interpleader to consolidate duplicative claims in Tashire.264Tashire, 386 U.S. at 534.
Second, again like modern litigation individualism, the Black-like approach protects litigation individualism without balancing individual autonomy against a concern for “efficiency,” as State Farm unsuccessfully urged the Court to do in Tashire (and Frankfurter favored in the forum non conveniens cases).265See supra note 229 and accompanying text. Because Black rooted a right to choose a forum in Congress’s purported policy, courts were obligated to protect it, full stop. The choice to weaken plaintiffs’ right to choose a forum for efficiency reasons is for Congress (or the rulemaking bureaucracy, conceived as a stand-in for or extension of Congress).266The federal rulemaking process that has grown up under the Rules Enabling Act is, in this view, an extension of (or “stand-in” for) the role of Congress in the system of checks and balances. For more on the ways the rulemaking process fits into the system of checks and balances, see Mark Moller, Internal Separation of Powers, Compensating Adjustments, and Court Rulemaking, 36 Rev. Litig. 579 (2018) (arguing that the federal rulemaking process has evolved into a stand-in for the political process in our system of checks and balances and defending this change as a “compensating adjustment” for Congress’s abdication of oversight of the judicial branch in constitutionally sensitive areas). As a result, Black’s version of litigation individualism reflects the same opposition to balancing that characterizes modern litigant autonomy doctrine.267See supra note 40 and accompanying text.
Of course, there are also obviously major differences between Black-style proto-litigation individualism and its modern variant. First, there is the formal scaffolding. Hugo Black-style litigant individualism valued litigant autonomy because litigants’ freedom to choose where to sue helped preserve states’ power over litigation. By the time we get to Tashire, Black’s push to protect plaintiff’s control over forum choice had acquired a quasi-jurisdictional flavor,268This jurisdictional flavor is explicitly acknowledged in the Medford claimant amicus brief in Tashire, which equates abrogation of litigant autonomy in that case with an “unwarranted extension of federal jurisdiction.” SeeMedford Amicus Brief, supra note 226, at 9. while the modern Court roots autonomy in substantive due process (a doctrine that Black opposed),269See supra notes 35–36 and accompanying text. or in the idea that claim-control rights are binding as a matter of substantive law.270See supra notes 31–33 and accompanying text.
But the flipside of the federalism-oriented defense of litigant autonomy was that the New Deal court was less protective of litigant autonomy when states were not beneficiaries of litigant autonomy. Thus, in the federal abstention cases, Justice Black was happy to close the door to a litigant suing in federal court, even though this restricted the federal plaintiffs’ “right to choose a forum,” because the choice, in that context, interfered with states’ core sovereign interests.271Younger v. Harris, 401 U.S. 37, 43–44 (1971). The right to choose a forum was a right protected to the extent it reinforced a state role in judicial governance—it was, in effect, a right to dodge federal court in favor of a state forum.
The second difference is that modern litigant autonomy is generally perceived as a value in tension with court access, because protecting litigant autonomy frustrates devices, like the class action, that proponents argue offset corporate defendants’ advantages in litigation. Black’s protection of litigant autonomy to pick a forum, by contrast, was intended, among other goals, to further court access. Black viewed plaintiff access to state court as not just as a structural imperative—a feature of Congress’s construction of “Our Federalism”—but an entitlement that levelled the litigation playing field and helped the powerless (a function of Black’s lifelong view that federal courts were corporation courts, while state courts were the friends of workers and consumers).272See supra notes 138–147 and accompanying text.
III. The Conservative Reception of Hugo Black’s Litigation Individualism
Justice Black and the New Deal Court developed a kind of precursor to modern litigation individualism, but one rooted in the suspicion of federal courts in corporation cases and in conjoined federalism and separation of powers concerns typical of Old Progressives from the first decades of the twentieth century. With Black gone (he retired in late 1971 and died shortly after),273Hugo L. Black, Oyez, https://perma.cc/5ELM-B4TA. Black’s concern for litigant autonomy carried forward on the conservative-turning Court, but his federalism orientation was promptly abandoned, as conservatives of the Reagan Era, in the face of an explosion of mass tort litigation, began to look askance at the role of state judiciaries in modern corporate litigation, and re-theorized litigant autonomy in entirely different terms.
The area that served as a bridge between the New Deal era’s embrace of plaintiff forum choice and the litigant autonomy values of this more conservative era is the law of forum selection clauses. In the cases above, Black had staked out the idea that federal courts were limited tribunals that did not interfere with litigants’ strategic choices to pursue state litigation, except to the extent strictly authorized by Congress. In The Bremen v. Zapata Off-Shore Co.,274407 U.S. 1 (1972). just a year after Black’s death, the Court would consider contractual forum selection clauses through the prism of that idea—there, in a case in which the parties had agreed to submit their claims to the court of a foreign sovereign.275Id. at 2–3.
However, here the conservative-drifting court and Justice Black parted ways. Justice Black, consistent with his populist anti-corporate roots, had approached forum selection clauses with wariness. He feared they would be used by corporate litigants to force plaintiffs to assert their claims in distant, hostile forums of the corporations’ choosing.276Nat’l Equip. Rental v. Szukhent, 375 U.S. 311, 328–29 (1964) (Black, J., dissenting).
But the structural idea that underpinned Kepner, Boyd, Gilbert, and Tashire—that federal courts were constitutionally limited tribunals that should not go out of their way to place barriers in front of litigants who wanted to take their disputes elsewhere—suggested a different, more tolerant approach to agreements not to litigate in federal court, one rooted in the concepts of litigant autonomy, federal limitation, and judicial restraint. If federal courts are supposed to (with implicit congressional approval) abjure interfering with litigants seeking to escape into state court, doesn’t the same principle bar federal courts from interfering with litigants fleeing to foreign courts or private tribunals?
In The Bremen, Chief Justice Burger would rely on this argument, while discussing the historical objection to forum selection clauses—that they constitute an “oust[er]” of jurisdiction.277The Bremen, 407 U.S. at 12. The ouster argument is
hardly more than a vestigial legal fiction. It appears to rest at core on historical judicial resistance to any attempt to reduce the power and business of a particular court and has little place in an era when all courts are overloaded and when businesses once essentially local now operate in world markets. It reflects something of a provincial attitude regarding the fairness of other tribunals. No one seriously contends in this case that the forum-selection clause “ousted” the District Court of jurisdiction . . . . The threshold question is whether that court should have exercised its jurisdiction to do more than give effect to the legitimate expectations of the parties, manifested in their freely negotiated agreement . . . .278Id. (emphasis added).
The passage implicitly appeals to the concept of federal courts as courts of limited jurisdiction—federal courts do not attempt to augment their own “power and business” at other courts’ expense, without explicit authorization. Certainly, plowing forward in the face of litigants’ agreement to go elsewhere is an assertion of power at other tribunals’ expense. Given a legislative preference in favor of the “substantial right” of litigants to choose the forum, why should we assume Congress would want federal courts to deny litigants who agreed to sue elsewhere their bargained-for right to litigate in a different court?
After The Bremen, there was indeed a brief moment where conservatives and progressives also seemed to converge on the need to preserve state court autonomy from federal interference. The result was a surprising, if evanescent, conservative-progressive alliance to weaken or even eliminate federal diversity jurisdiction. As Diego Zambrano recounts:
The movement reached its peak in 1978, when the House overwhelmingly adopted a bipartisan bill . . . to wholly eliminate federal diversity jurisdiction. By then, an impressive array of institutions and interests had lined up behind the effort: President Jimmy Carter, Attorney General Griffin Bell, Chief Justice Burger, the Judicial Conference, and the National Conference of State Chief Justices . . . . The bill even had the backing of the NAACP and the ACLU.279Zambrano, supra note 12, at 2122.
But by the early 80s, the effort at weaking federal jurisdiction had stalled in the face of a deluge of increasingly vast-scale mass tort litigation and the rise of an entrepreneurial plaintiff’s bar wielding the federal class action to combat corporate wrongdoing.280Id. at 2124–29. The Rehnquist Court would subsequently go on to attack regulation by litigation on several fronts.281The Rehnquist Court lowered the bar to summary judgment (a move against “lawless” juries), and then sharply curtailed the availability of mandatory class actions in Ortiz v. Fibreboard, where the Court construed Rule 23’s mandatory provisions narrowly out of deference to litigant autonomy; and finally, in Amchem, interpreted the scope for Rule 23(b)(3) certification and settlement class actions narrowly as well. See supra notes 29–30 and accompanying text. And movement conservatives and Chamber of Commerce types simultaneously began to look on state litigation askance.
The Burger Court’s arbitration decision in Southland Corp. v. Keating282465 U.S. 1 (1984). was, in hindsight, an inflection point. There, the Burger Court invoked the same judicial restraint concern about courts drawing business to themselves it had invoked in The Bremen, now to interpret the Federal Arbitration Act’s protection for private arbitration agreements quite broadly.283Id. at 11–13. As Burger put it, quoting the House Report accompanying the FAA:
“The need for the law arises from . . . the jealousy of the English courts for their own jurisdiction. . . . This jealousy survived for so lon[g] a period that the principle became firmly embedded in the English common law and was adopted with it by the American courts. The courts have felt that the precedent was too strongly fixed to be overturned without legislative enactment . . . .”284Id. at 13 (quoting H.R. Rep. No. 96, at 1–2 (1924)).
But by the time of Southland, the conservative court was abandoning any interest in the link tying consensual forum choice to the concept of limitations on federal judicial authority. Indeed, Burger explicitly rejected the idea (one, ironically, pioneered by Justice Black) that the FAA was a procedural regulation of federal courts alone, and did so based on an explicit concern about plaintiff-side forum shopping:
Under the interpretation of the Arbitration Act urged by Justice O’Connor [following the earlier approach of Justice Black], claims . . . are not arbitrable when they are raised in state court[s]. Yet it is clear . . . that [under this interpretation] if this suit had been brought as a diversity action in a federal district court, the arbitration clause would have been enforceable. The interpretation given to the Arbitration Act by [Justice O’Connor and Black before her] would therefore encourage . . . forum shopping. We are unwilling to attribute to Congress the intent . . . to . . . make the right dependent for its enforcement on the particular forum in which it is asserted. And since the overwhelming proportion of all civil litigation in this country is in the state courts, we cannot believe Congress intended to limit the Arbitration Act to disputes subject only to federal-court jurisdiction.285Id. at 15 (footnotes and citations omitted).
Here was the beginning of opposition to state courts’ involvement in commercial litigation—and with it, plaintiffs’ power to shop for a state forum—that would go on to become a major feature of conservative judicial thought in the 1980s and the decades since. As Zambrano recounts, in the decades after Southland:
[C]orporate defendants and conservative groups demanded federal intervention against “out of control” state courts, and the federal government mostly complied. These developments meant that the partisan valence of federalism flipped [for conservatives] at some point in the 1980s, when conservative forces began to see federal courts as friendlier to their claims.286See Zambrano, supra note 12, at 2134.
And so, in the 1990s and beyond, conservatives shifted the defense of litigant autonomy rights away from a “substantial right . . . to choose [a] forum” to a right to control assertion and settlement of the case after the forum was selected.287State Farm Fire & Cas. Co v. Tashire, 386 U.S. 523, 536 (1966). The Court’s class action cases in this era frequently adduced litigant autonomy interests as a reason to construe Rule 23 narrowly.288See supra notes 29–30 and accompanying text. And, the Court continued to eschew “balancing” litigant autonomy interests against competing interests.289See Campos, supra note 4, at 1112–14. This, as we have seen, is consistent with the way Justice Black approached litigant autonomy.290See supra notes 229–238 and accompanying text.
But the right to autonomy was now understood in terms Black would have rejected: in “substantive due process”-like terms, as a quasi-fundamental interest that courts, federal and state, were obligated to protect out of a respect for litigants’ liberty, dignity, or property interests, rather than in vertical federalism terms, as a traditional remedial right that promoted access to state court, subject to Congress’s control under separation of powers.291See Campos, supranote 4, at 1110–11; Monaghan, supra note 35, at 1174 (characterizing opt out rights in “substantive due process” terms). To the extent structural arguments were advanced against devices that impinged on litigant autonomy, the arguments were framed in Article II terms—aggregation of claims via representation arrogated the powers of an attorney general (an executive branch role) to private litigants and courts, amounting to constitutionally suspect “regulation by litigation.”292Abraham, supra note 10, at 232.
The idea that the federal court system secured plaintiffs a “substantial right” to choice of forum fell into obscurity and was mostly forgotten. By the turn of the twenty-first century, conservative scholars were actively opposed to Progressive Era defenses of state courts. Professor Michael Greve is typical: He claims that state control over nationwide litigation allowed alliances between local judges and plaintiffs’ bar to extract rents from the public and impose local policies on non-consenting foreign states.293Greve, supra note 143, at 234–36 (arguing that the New Deal Court, by abetting forum shopping, enabled state cross-border “imperialis[m]”). Similarly, Professors Daniel Klerman and Greg Reilly have argued expansive personal jurisdiction can lead to forum selling—the attempt by state or federal forums to attract litigants with pro-plaintiff rulings. Daniel Klerman & Greg Reilly, Forum Selling, 89 S. Calif. L. Rev. 241, 243 (2016).
In effect, the story of litigant autonomy post-1980s has been a reinterpretation of a pattern with origins in the Progressive Era—inflexible judicial protection of litigating autonomy—through new doctrinal lenses to fit the changing ideological priors of a more conservative era.
IV. Does Hugo Black-Style Litigation Individualism Have a Future?
Is there any prospect for reviving the Justice Black wing of progressive judicial federalism? There is plenty of reason for skepticism. The first reason is the simple politics of legal change. As Diego Zambrano has observed, federal courts have consolidated much of mass litigation in federal court because there has been a collapse in political support in favor of devolving significant portions of this litigation to states.294Zambrano, supra note 12, at 2140 (noting that increasing federal control of mass tort litigation drew support primarily from conservatives, but also “benefited from support from liberals” concerned about the “mass-torts crises of the 1980s and 1990s”). A bipartisan majority, indeed, passed the Class Action Fairness Act.295David Marcus, Attorneys’ Fees and the Social Legitimacy of Class Actions, 159 U. Pa. L. Rev. PENNumbra 157, 165 & n.49 (2011) (noting the “strong bipartisan support” that CAFA received). Forum shopping is a scare word across the legal profession.296Greve, supra note 143, at 229 (“all those in favor of unfairness or forum shopping, say ‘aye’”). For both the right and a portion of today’s left, the federal judiciary has become associated with competent management of complex litigation, and state courts have become associated with incompetence, if not a corrupt alliance between local plaintiff lawyers and an elected state bench reliant on the plaintiff bar’s campaign contributions.297Zambrano, supra note 12, at 2145–49.
Worse, one of the underpinnings for Hugo Black-style judicial federalism—the idea that national legislative process intends to secure a “substantial right” to pick a forum—is no longer very convincing, at least in the areas involving the most significant sorts of litigation. The last thirty years have seen an enormous drumbeat of legislative efforts, including but not limited to CAFA, to nationalize oversight of most significant types of litigation.298Id. at 2125–38.
For outcome-oriented progressives, the payoff for Hugo Black-style federalism is also murkier today. Black’s federalism interprets both jurisdictional grants and procedures that infringe on litigant autonomy over assertion of claims narrowly.299See, e.g., Atl. Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286–87 (1970) (refusing to adopt a broad construction of the 1793 Anti-Injunction Act). Subject to only nuanced differences, class actions, like interpleader, disrupt the ability of individual litigants to control where their claims are filed, as Black himself noted in Snyder.300Snyder v. Harris, 394 U.S. 332, 340 (1969). Reviving Black’s approach would provide additional reason, now rooted in structural federalism and separation of powers principles, to conclude cases like Ortiz v. Fibreboard Corp. were correct to pick narrow constructions of the mandatory portions of the class device.301See 527 U.S. 815, 845 (1999). Black’s approach, in the near term anyway, thus provides new ammunition for trends many legal liberals don’t like.
The idea that individualized claim control should shape our interpretation of party forum choice opportunities may also support arguments that the Federal Arbitration Act, a product of the Progressive movement, envisions “arbitration” as a matter of individual claiming. Yet progressives have argued for a flexible approach to federal arbitration that encompasses non-individualized class action-style arbitration.302Ronen Avraham, William H.J. Hubbard & Itay E. Lipschits, Procedural Flexibility in Three Dimensions 35–37 (U. Chi. Pub. L. & Legal Theory, Working Paper No. 658, 2018).
And, for advocates of racial justice, embracing litigation federalism means embracing uncomfortable historical allies. The early populist defender of litigant autonomy Joe Bailey had a bad record on racial justice.303Gould, supra note 115, at 64 (characterizing Bailey as a “conservative Democrat with a heavy overlay of racism”). Moreover, some of Black’s late federalism decisions in other areas—particularly his partial dissent in South Carolina v. Katzenbach,304383 U.S. 301 (1966). where he argued portions of the Voting Rights Act were unconstitutional305Id. at 356–61 (Black, J., concurring in part and dissenting in part).—were harshly criticized by racial progressives.306See Newman, supra note 148, at 567–70 (noting private criticisms of Black’s late federalism-oriented output by erstwhile allies William Brennan, William Douglas, and Earl Warren). These decisions, along with his role in the growth of originalism, have led some progressives to revisit his legacy in recent years, despite the pivotal role he played in Brown v. Board of Education.307Cass R. Sunstein, The Most Overrated Supreme Court Justice, Bloomberg (Apr. 22, 2014), https://perma.cc/BXM6-MVTU (arguing Black is overrated); see also Will Baude, Who Are the “All Time Great” Supreme Court Justices?, Wash. Post (Apr. 7, 2014), https://perma.cc/A9LB-SGBS (noting the tendency of modern progressives to ignore Black in historical rankings of Supreme Court justices).
But despite these concerns, there are some reasons to think there may yet be a future for Hugo Black-style judicial federalism among progressives. First, in the academy, there remains a significant contingent of legal liberals who still adhere to the old view that “Lady Justice lives in the halls of state courts.”308The quote is a modern one highlighted by Diego Zambrano. Zambrano, supra note 12, at 2110 (quoting John Schwartz, Critics Say Budget Cuts for Courts Risk Rights, N.Y. Times (Nov. 26, 2011), http://perma.cc/BT5T-5R2R). But it reflects an old view. See supra Sections II.A.1, II.B.1 (noting that this view was common among progressives in the early part of the twentieth century). Most of the leading members of the civil procedure community in American law schools, for example, were skeptical to outright hostile to CAFA, for example.309For a representative sample of responses from major scholars, seeSymposium, Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005, 156 U. Pa. L. Rev. 1439 (2008). Claims that there is a consensus in favor of federal control over big-ticket mass tort or class litigation are overstated.
Moreover, recent developments in federal procedure might tempt some legal liberals who support federalization of mass torts to reconsider their stance. States have largely resisted the door-closing innovations that federal courts have pursued in the last two decades, such as plausibility pleading, the lowered bar for summary judgment, and restrictive understanding of class certification standards.310See Zambrano, supra note 12, at 2163–64 (“[I]n the past thirty years, the federal courts have engaged in procedural retrenchment—a systematic effort to close access to federal court through reform to pleading, personal jurisdiction, class actions, arbitration, and discovery, among other procedures. . . . Surprisingly, however, state courts have not followed this pattern.”); Zachary D. Clopton, Procedural Retrenchment and the States, 106 Calif. L. Rev. 411, 424–34 (2018) (documenting significant state-level refusal to mirror federal pleading, summary judgment, and class action standards). Federal courts are an increasingly inhospitable place—and unusually inhospitable place at that—for plaintiffs.
Thus, even if Hugo Black-style judicial federalism cuts against litigation trends that legal liberals like in the near term (by supporting restrictive understanding of class action rules, for example), a Blackian defense of litigants’ autonomy to choose the forum also favors narrow interpretations of statues like CAFA and so helps keep judicial federalism relatively porous, preserving the ability of litigants to escape into a court-access friendlier state system. From a purely outcome-oriented perspective, Black style judicial federalism is a way of running interference against depressing near-term trends—the increasing dominance of an ever more court-access unfriendly federal system—until court-access reforms become possible again at the federal level or real power can be returned to the states.
And in response to the objection that Black’s defense of individualized forum choice would favor reading the FAA as a guarantee of individualized proceedings, in line with the Supreme Court modern arbitration jurisprudence: This may be so. But Black also argued the FAA was properly understood as a procedural statute that had no import for state litigation, a view that a revival of interest in Black’s federalism would require us to take seriously once again.311See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 411, 422–23 (1967) (Black, J., dissenting) (citing the legislative history of the Federal Arbitration Act, to prove it was procedural and did not create substantive state rights); Southland Corp. v. Keating, 465 U.S. 1, 14–15 (1984) (addressing an argument that the Federal Arbitration Act is a procedural rule).
Finally, while there is a historical intersection between federalism and structural racism, the link is historically contingent (and one that is arguably shared with nearly every major feature of the legal system at some point in America’s history). Today, the link between litigant autonomy, federalism, and racial subordination is just not very compelling. In recent decades, some civil rights activists have argued the state system is more congenial to the rights of marginalized persons.312See, e.g., Justin R. Long, State Court Protection of Individual Constitutional Rights: State Constitutional Structures Affect Access to Civil Justice, 70 Rutgers U. L. Rev. 937, 960–71 (2018) (describing the right to counsel in the state system, authority of the state courts, state workers’ laws, state attorneys general, and state agencies as able to address civil rights justice). Moreover, if there are structural barriers to racial equity in the legal system—disparate racial impact occasioned by design features of civil procedure, say—it’s hard to see how constraining injured plaintiffs’ forum choice within the system mitigates that problem. Although the issue deserves more study, available data suggests marginalized groups are more likely to suffer civil wrongs than other groups.313See, e.g., Rebecca L. Sandefur, What We Know and Need to Know About the Legal Needs of the Public, 67 S.C. L. Rev. 443, 444–47 (2016) (noting that poor and people of color suffer more “civil justice situations” than whites and defining “civil justice situations” as situations that would support suing for relief in court); see also Rebecca L. Sandefur, Accessing Justice in the Contemporary USA 7–8 (2014). Given this, expanding plaintiff choice among different court systems, marked by variation in procedure, judicial selection, and jury pools, is likely to subvert, not protect, structural barriers to litigation equity. Greater choice means a greater chance of matching a lawsuit to courts whose judges, juries, and procedures are not biased against you.
So, progressives dismayed by federalizing mass tort litigation may have some reason to consider a revival of Hugo Black style judicial federalism. What of conservatives? As FELA debates indicate, support for litigants’ freedom to opt for a state forum was not always the exclusive province of progressives. Senator Hale was part of the conservative wing of the Republican party.314See supra note 116 and accompanying text. Senator Bailey, a Democrat, was a self-described “conservative,” albeit with a populist streak that today reads as anti-corporate and therefore more liberal.315See supra notes 113–115 and accompanying text. They evidence that at previous historical junctures self-described judicial conservatives favored protecting the ability of litigants to shop for a state forum in order to offset creeping federalization.
Even so, selling Black-style judicial federalism to modern conservatives is a daunting task. Michael Greve calls judicial federalism “trial lawyers’ federalism”—something that he considers no compliment.316Michael S. Greve, Federalism’s Frontier, 7 Tex. Rev. L. & Pol. 93, 100–04 (2002). Greve’s dim view of litigation federalism remains a staunchly held position among orthodox conservatives today.
Yet, it is possible a new generation of pro-federalism conservatives might come to find something to like in Black’s approach. Professor Zambrano had developed convincing evidence that federalization of the most significant classes of litigation (class actions, mass torts) may be weakening state courts and making them more pro-plaintiff, a product of the fact corporate repeat-player litigants have largely ceased to see state courts as an arena in which they have a significant stake and therefore have stopped lobbying for state-level judicial reform.317Zambrano, supra note 12, at 2153–81. This is a development that should concern conservatives concerned about the quality and neutrality of the judicial process, since state courts remain the principal site of garden-variety retail litigation.
The problem extends well beyond the integrity of state courts. Federalism theorists argue that federalism is sustainable only to the extent citizens develop an attachment to states.318The role of citizen attachment to states plays a central role in Madison’s account of federalism in The Federalist No. 46. The Federalist No. 46 (James Madison). For modern discussions of the role of citizens’ attachment to states in our system of federalism, see Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1109 (2014) (noting that “[a]n animating premise of much federalism doctrine and scholarship is that states must command political loyalty and identity”) and Jacob T. Levy, Federalism, Liberalism, and the Separation of Loyalties, 101 Am. Pol. Sci. Rev. 459, 464–66 (2007) (discussing the role of local loyalty in liberal theories of federalism). And theorists dating back to the framers have treated a healthy and fair state judicial system as one of the main avenues of fostering citizens’ attachment to their states.319See, e.g., The Federalist No. 16, at 81–82 (Alexander Hamilton) (Ian Shapiro ed., 2009) (“The majesty of the national authority must be manifested through the medium of the courts of justice” if the government of the Union is to “address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart.”); Alison L. LaCroix, The Ideological Origins of American Federalism 173–74 (2010) (discussing the Federalists’ conception of the judiciary as a locus of their affective attachment to the polity). If that is right, a deteriorating state court system might weaken the connection state citizens feel toward their states, risking a self-reinforcing negative spiral of popular enthusiasm for federalism.Protecting state courts’ control over a healthy share of big-ticket litigation may therefore prove to be important not just to the health of state judicial institutions, but the vitality of federalism more broadly.
These are therefore important reasons for conservatives to be concerned about the federalization of complex litigation. Of course, as Professor Lael Weinberger notes, conservatives of an originalist bent are unlikely to embrace approaches to judicial federalism that treat judicial federalism as a kind of “free-floating” value that courts should balance against competing values.320Weinberger, supra note 16, at 1782–85 (noting the “[t]extual [p]roblem” with Frankfurter’s federalism jurisprudence); id. at 1739 (noting Frankfurter treated federalism “as a free-floating principle of constitutional theory, not explicitly tethered to any particular textual basis in the Constitution”). But Black’s version of judicial federalism is not of this ilk. Justice Black himself was a proto-originalist and textualist, and Black’s approach hinges both on a constitutional claim about Congress’s role in separation of powers (under Article I and Article III, Congress must approve expansions of federal judicial power) and a statutory interpretation claim (that Congress has adopted a policy of protecting states by protecting plaintiff forum choice).
Black’s constitutional claim has clear textual support.321See U.S. Const. art. I, § 8, cl. 9; U.S. Const. art. III, § 2, cl. 2. The principal objection to Black’s approach from a formalist standpoint is that a string of enactments federalizing litigation (e.g., CAFA, SLUSA) undercuts the continued coherence of his claim that free plaintiff forum choice is Congress’s policy. But Black’s approach is bolstered here by insight of modern textualist scholarship. A basic observation of that scholarship is that texts frequently reflect kludgy compromises among competing interest groups rather than coherent plans, and these compromises sometimes take the form of decisions not to decide (marked by textual ambiguity).322See, e.g., John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1290 (2010) (“Second-generation textualism argues that lawmaking inevitably involves compromise; that compromise sometimes requires splitting the difference; and that courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose.”); Frank H. Easterbrook, Statutes’ Domains, 50 U. Chi. L. Rev. 533, 547 (1983) (“Because legislatures comprise many members, they do not have ‘intents’ or ‘designs,’ hidden yet discoverable. Each member may or may not have a design. The body as a whole, however, has only outcomes.”); Steven Menashi, Article III as a Constitutional Compromise: Modern Textualism and State Sovereign Immunity, 84 Notre Dame L. Rev. 1135, 1147–48 (2009) (“Omissions are evidence that no bargain was struck: some issues were left for the future, or perhaps one party was unwilling to pay the price of a resolution in its favor. Sometimes the compromise may be to toss an issue to the courts for resolution . . . .”). This surely describes jurisdictional statutes like CAFA, which are best described as reflecting a trend in favor of more federal power over mass torts, but one marked by (1) clunky and arbitrary compromises that continue to make federal jurisdiction porous, as well as (2) “failures to decide” marked by fuzzy ambiguities.323See Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. Pa. L. Rev. 1439, 1444 (2008) (“CAFA’s architects were forced by the need to compromise (and perhaps inclined by a strategic preference for ambiguity) to leave some questions implicating forum allocation unanswered. They thus guaranteed years of work for lawyers and courts . . . .”). Those compromises have led to the stubborn persistence of concurrent jurisdiction (even CAFA preserves it), allowing some portions of mass litigation to escape into state court by determined forum shoppers, particularly when the vague rules authorizing techniques for aggregating claims (like the federal class device) are construed narrowly, making it harder to certify federal class actions in the mass tort area.
Since jurisdictional statutes do not enact a coherent policy, the question is not what Congress’s policy is. The question is which institution—courts or Congress—should turn up the dial on interference with plaintiff autonomy in areas where courts confront legislative ambiguity (a failure to decide) about the scope of that autonomy in areas of law affecting forum selection? Black’s theory of constitutional structure is that initiatives to aggrandize federal courts must survive the checks of the political process. That means control over the dial in domains including both jurisdiction and procedure affecting litigant autonomy remains with Congress and the rulemaking process, not federal courts.324For more on the ways the rulemaking process fits into the system of checks and balances, see supra note 266. Thus, as in Tashire, federal courts should stick with interpretations of unclear rules and statutes that preserve litigant autonomy until Congress and the rulemakers clearly decide otherwise. That favors broad interpretations of federal-state concurrency and the ban on anti-suit injunctions, narrower interpretations of federal removal provisions, and narrow interpretations of procedures allowing for forced federal consolidation, like interpleader and mandatory class actions.
New originalist scholarship might also push conservatives to reconsider Black’s protective to approach litigant forum choice on a slightly different formalist ground. Lawrence Solum and I have shown that there is a strong case that modern corporate diversity jurisdiction is unconstitutional, because (1) corporations are not “citizens” within the original meaning of Article III and (2) the original meaning of Article III also precludes diversity jurisdiction based on the citizenship status of a corporation’s human members.325Moller & Solum, supra note 19, at 172; Moller & Solum Manuscript, supra note 19 (manuscript at 3–4).
Those who credit this evidence might accept the need to preserve litigants’ freedom to opt for state court as a kind of “compensating adjustment” for federal courts’ constitutional overreach if the Court (as is likely) continues to balk at overturning corporate diversity jurisdiction. Such an adjustment may in fact lurk behind Black’s own approach to plaintiff autonomy over forum selection. Black argued that, as an original matter, corporations were not “persons” within the meaning of the Fourteenth Amendment.326Conn. Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 87–88 (1938) (Black, J., dissenting). There is every reason to suspect he would have taken a similarly dim view of the concept of corporate “citizenship” under Article III if the Court had ever squarely addressed that question. Certainly, other progressives of the same era though corporate diversity jurisdiction was a fiction and, like Felix Frankfurter and Black’s own Senate mentor George Norris, advocated its elimination.327See Purcell, supra note 45, at 77 (discussing Norris’s efforts to eliminate diversity jurisdiction); Felix Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499, 523 (1928) (“[L]egal metaphysics about corporate ‘citizenship’ has produced a brood of incoherent legal fictions concerning the status of a corporation, defeated the domestic policies of states, and heavily encumbered the federal courts with controversies which, in any fair distribution of political power between the central government and the states, do not belong to the national courts.”).
Even so, the New Deal Court never seriously considered overturning corporate diversity jurisdiction. It was too entrenched in the American legal system. But Black’s approach—consistently construing jurisdiction, venue, and procedure to preserve individual litigants’ ability to dodge federal court—may well have been reflected the view that forcing Congress to speak very clearly before infringing on plaintiff’s freedom to flee to the states will at least compensate for the Court’s unwillingness to overturn corporate diversity jurisdiction. A clear statement rule compensates for that unwillingness by slowing the expansion of corporate diversity jurisdiction and, with it, the unconstitutional erosion of state judicial power. A similar concern about mitigating federal overreach plainly motivated Senator Bailey’s and Hale’s advocacy of plaintiff autonomy in the debate over FELA’s venue provisions—they saw plaintiff autonomy over the forum in which FELA claims were litigated as a counterbalance to what they viewed as FELA’s transgression of the limits on Congress’s legislative power.32845 Cong. Rec. 3997 (1910); 45 Cong. Rec. 4050 (1910); 45 Cong. Rec. 4093 (1910).
Black’s approach also, finally, should find favor with conservatives who value continuity not just with constitutional text but with traditional practice. The American orientation toward broad protection for plaintiff claim-control within a system of overlapping judicial jurisdiction is part of a continuous tradition in English and American jurisdictional policy and remedies law dating back to the pre-Framing English royal court system.329Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U. Chi. L. Rev. 1179, 1179 (2007) (the common law’s early modern history was marked by courts with overlapping jurisdiction and wide plaintiff control over where to submit their claims); Moller & Solum Manuscript, supra note 19 (manuscript at 17) (showing that a right-owners’ right to control the strategic choices bearing on prosecution of their causes of action was a standard feature of common law remedial policy in the eighteenth and early nineteenth centuries). The best reconstruction of Black’s theory of judicial federalism treats the tradition of plaintiff claim control as a settled legal backdrop on which jurisdictional law and adjacent procedures have built, with structural consequences for who can alter that backdrop at the federal level in the American system of separated powers.
Of course, the prospects of a conservative revival of Black-style judicial federalism also depend on the party politics of judicial nominations. If judicial nominations are responsive to members of existing political coalitions, and corporate America has a strong preference for federal litigation, will Republicans ever nominate judges willing to protect federalism in the civil litigation area?
But there are some glimmers of possibility for Black-style federalism here, too. Trends in American politics are creating a more fraught relationship between Republicans and corporate America, in ways that may be reviving the cross-party anti-corporate politics of the early twentieth century.330Peter Savodnik, The Rise of the Republican Class Warrior, Common Sense (Nov. 11, 2021), https://perma.cc/KA7Y-7QH9 (surveying and criticizing the rise of anticorporate populism in the Republican Party). I have some major concerns with a number of aspects of this turn in conservative politics. The point here is not to endorse every feature of this trend, but to simply to point out that it may undermine old assumptions about the political valance of jurisdictional policies that read as “anticorporate.. Opposition to the growth of the administrative state is also leading some conservatives to question the assumptions of the tort reform politics of the last thirty years. Scholars like Brian Fitzpatrick and politicians like former House Liberty Caucus chair Justin Amash favor reviving “regulation by plaintiffs” through the civil litigation system, in lieu of continuing to expand the power of administrative agencies.331Fitzpatrick, supra note 17, at 3; Press Release, House Liberty Caucus, House Liberty Caucus Statement on H.R. 985, Fairness in Class Action Litigation Act of 2017 (Mar. 9, 2017), https://perma.cc/3FBX-8UFA. These trends could, perhaps, combine to create a political window for a bipartisan revival of Hugo Black style judicial federalism.
At the end of the day, a revival of Hugo Black style fusion of federalism and litigation individualism faces daunting hurdles, and its value may lie more in what it reveals about the forgotten historical origins of jurisdictional and procedural doctrines that enable forum shopping than as a guide to the direction doctrinal development is likely to take in the near future. Yet, constitutional theory is also a long story of cycling, rediscovery, and transformation. Even if Black’s federalism is unpopular today, reconstructing it expands our sense of possibilities in a coming period of radically changed federal-state judicial balance, deteriorating state courts, and fraying political alignments. Perhaps the old marriage of federalism and litigation individualism may find new champions as familiar coalitions crumble and new ones assemble to fight federal judicial consolidation.