Professor Mark Moller Seeks to Reframe How We Think About Corporate Access to Federal Courts

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Before joining DePaul Law, Professor Moller was a corporate defense and appellate litigator at Gibson, Dunn & Crutcher LLP in Washington, DC.  He then headed the Cato Institute's Supreme Court amicus program.  As a law professor, says Professor Moller, “my work combines my practice experience in corporate litigation with my interest in originalism."

In 2023, Professor Moller designed the first applied originalism class for a group of incoming federal and state appellate clerks at Georgetown's prestigious Originalism Summer Seminar, sponsored by the Georgetown Center for the Constitution, and he is returning to teach in the seminar again next year.

His current research focus is on the extent of federal courts' power over so-called “complex litigation—class actions and multi-district litigation," explains Professor Moller. “The scope of federal jurisdiction in these cases," he notes, “is a completely neglected issue in originalist scholarship."  However, he continues, “the expansion of federal control over complex civil litigation has incredibly important implications for the vitality of states as competing power centers. It deserves much more attention from academic originalists than it has received." "If we are going to be consistent originalists," says Professor Moller, “it turns out we will need to rethink the boundaries of federal jurisdiction over state-law civil litigation in a number of different ways."

In 2020, Professor Moller partnered with Professor Lawrence Solum of the University of Virginia School of Law, one of the leading theorists of originalism and a fellow civil procedure expert, to write about this topic. Their work ultimately zeroed in on “one of the biggest unexplored questions" in civil procedure—the implications of the original meaning of the Diversity of Citizenship Clause for corporations' access to the federal diversity docket.

“Corporate diversity jurisdiction is just huge," say Professor Moller. “It's the foundation for what amounts to a modern federal takeover of most complex civil litigation," he notes, and it has attracted many critics over the years. “However, nobody has looked at it methodically from an original standpoint; we're the first to really do that work."

Professors Moller and Solum have co-written two articles on the topic: "Corporations and the Original Meaning of 'Citizens' in Article III" (2020) and "The Article III 'Party' and the Originalist Case Against Corporate Diversity Jurisdiction" (2023). Both articles ask whether corporations' “broad access to federal diversity jurisdiction is," as Professor Moller puts it, “consistent with the constitutional text."

In the first article, they show that corporations were not "citizens" when the Constitution was ratified. The second article examines whether corporations can nevertheless access federal courts using the citizenship of individual shareholders (“the route the U.S. Supreme Court took in the decades after ratification"). They argue that shareholders are not parties to most modern corporations' Article III controversies, originally understood, meaning corporations cannot "preserve access to diversity jurisdiction" through shareholders' citizenship. “The upshot," says Professor Moller, “is that corporate diversity jurisdiction seems to be largely anti-originalist, one of the first federal power grabs."

Professor Moller considers one of the most interesting results of their work to be that it "undermines critics' claim that originalism always favors one side in the political divide." “Our work," he says, “puts originalism at odds, in some important ways, with the business lobby, which has historically promoted federal court as the best forum in which to fight big stakes suits. This is a leading example of how originalism, properly done, doesn't map onto contemporary partisan divides."

In his latest work, Professor Moller is turning his attention to “[one of] the most the mysterious rules in federal jurisdiction– the complete diversity requirement." This rule, established by the Marshall Court in Strawbridge v. Curtiss (1806), has been a key constraint on federal courts' power over state-law litigation. “The general view," says Professor Moller, “is that Chief Justice Marshall kind of made up this rule, and it is certainly not constitutionally required." "However," he continues, “I've found some new evidence that explains the rule's origins." The evidence points to what Professor Moller calls “a new way, rooted in some original rules of legal interpretation" to think about when Congress can scrap the complete diversity requirement, as it did in the landmark Class Action Fairness Act.

"Originalism is not exactly popular among my colleagues," he laughs, “but it is, in my view, the most coherent way to interpret a written Constitution."