The Puzzle of Procedural Originalism

78 Pages Posted: 24 Jan 2023 Last revised: 11 Oct 2023

See all articles by Mila Sohoni

Mila Sohoni

University of San Diego School of Law

Date Written: January 21, 2023

Abstract

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.

This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism.

Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law.

Keywords: originalism, original public meaning, civil procedure, personal jurisdiction, subject matter jurisdiction, corporate citizenship, remedies, equity

Suggested Citation

Sohoni, Mila, The Puzzle of Procedural Originalism (January 21, 2023). 72 Duke Law Journal 941 (2023), San Diego Legal Studies Paper No. 23-003, Available at SSRN: https://ssrn.com/abstract=4333281 or http://dx.doi.org/10.2139/ssrn.4333281

Mila Sohoni (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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