Venue is having a moment. Despite its frequent relegation to the third
tier of threshold procedural issues that control a litigant’s ability to seek relief,
ongoing litigation highlights venue’s importance to the availability and
substance of relief. During its 2024–25 Term, the Supreme Court will resolve
at least two distinct questions about venue, including three cases about the
proper interpretation of the Clean Air Act’s venue-channeling provision and
a fourth case dealing with the bifurcation of standing and venue requirements.
In the federal courts of appeals, disputes about proper venue have
predominated in administrative challenges to the NLRB’s power to enforce
labor standards and to the CFPB’s authority to protect consumers from
predatory lending. Meanwhile, the proliferation of nationwide injunctions has
focused scholarly attention on venue reform as a potential solution for
hyperpartisan forum shopping.
Venue’s recent salience destabilizes the perception that it is a strictly
procedural issue pertaining to the location of adjudication. And, as this
Article uncovers, Congress has repeatedly recognized and deployed venue’s
substantive potential to achieve legislative objectives and reinforce desired
normative values. But as venue questions have come to the fore in recent
administrative litigation, some courts have developed doctrinal tests and
deployed extraordinary procedures to decide venue disputes in a way that
aggrandizes their adjudicatory power at the expense of other courts. These
interpretive choices and procedures enable courts to exercise authority over
cases for which they are improper forums, in violation of statutory text and
structure and separation-of-powers principles.
This Article offers the first account and critical assessment of this
emerging phenomenon, which I call “venue diversion.” This critique builds on an original statutory analysis of how Congress uses venue provisions to
shape Article III adjudication, including through the general venue statute and
through specialized “venue-diffusing” and “venue-channeling” provisions.
The Article constructs a theory of venue diversion and evaluates its practical
significance through two case studies of recent venue litigation. The
investigation reveals that venue diversion is both inherently and
consequentially deregulatory and contributes to an accountability gap in
which the policies of a democratically accountable administration are
encumbered by the exercise of unaccountable judicial power. Moreover,
because it enables courts to selectively decide substantive questions through
an ostensibly neutral procedural mechanism, venue diversion represents a
particularly problematic form of deregulation. In this way, venue diversion
implicates many of the same normative issues as other emerging structural
phenomena that blur the substance-procedure distinction, like nationwide
injunctions and the shadow docket.
