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University of Chicago Law Review

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83

Abstract

The original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction.

This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The Article and its Appendix include a catalog of the original jurisdiction law of all fifty states; a survey of scores of recent original actions related to elections, COVID-19, and abortion; and a review of relevant legislation from the last decade.

This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts fact-finding responsibility, and has the potential to permit quicker resolution of disputes. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court without the frictions of lower court litigation.

Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in “avoidance” maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way.

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