It is hard to believe that an obscure technicality in the laws of federal civil procedure could be so consequential amidst a global pandemic. Primary jurisdiction doctrine is a judicial invention first formulated by the Supreme Court in 1907. First year law school classes rarely cover it, and even some professors will admit they have scarcely heard of it. Yet, in recent federal district court decisions during the COVID-19 pandemic, judges have invoked the doctrine in troubling ways, likely with devastating consequences. This paper addresses the application of primary jurisdiction doctrine during the pandemic by examining a federal district court’s decision issued in May 2020. It argues that while the doctrine can be a useful tool, judges should not apply it in exigent circumstances.
The COVID-19 Pandemic Is No Time for Referral to Administrative Agencies: The Dangers of Primary Jurisdiction Doctrine