Summary
Nonjurisdictional state sovereign immunity
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Extract
Mandatory rules.
INTRODUCTION I. UNDERSTANDING NON JURISDICTIONAL RULES A. Avoiding the False Dichotomy B. The Effects of the False Dichotomy II. A ROLE FOR MANDATORY RULES A. Mandatory Rules Defined B. Institutional Benefits C. A Case Study: Section 2107 1. Non jurisdictional 2. Mandatory 3. Some conclusions III. MANDATORY SOVEREIGN IMMUNITY A. A Brief Background on State Sovereign Immunity B. The Case for a Non jurisdictional State Sovereign Immunity 1. Presumption of jurisdictionality 2. Function 3. Effects 4. Doctrinal and cross-doctrinal consistency C. The Case for a Mandatory Sovereign Immunity 1. No sua sponte requirement 2. Forfeitability 3. No availability of equity CONCLUSION INTRODUCTION
How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question. Since 2004, the Court has determined that Bankruptcy Rule 4004, which gives a Chapter 7 creditor sixty days after the first creditors' meeting to object to debtor discharge, (1) is nonjurisdictional; (2) that Federal Rule of Criminal Procedure 33(b)(2), which sets a time limit to file a motion for a new trial, (3) is nonjurisdictional; (4) that Title VII's "employee-numerosity requirement" (5) is a nonjurisdictional element of the claim; (6) and that the time limit to extend the filing of a notice of appeal in a civil lawsuit (7) is jurisdictional. (8) And, just a few months ago, the Court decided that the six-year statute of limitations in the Tucker Act is a quasi-jurisdictional bar to suit. (9) The Court is right to be attentive. Whether a rule is jurisdictional or not affects both litigants and the courts in important ways. Though I believe that the Court has yet to develop a principled framework for resolving the issue, (10) the Court is correct to recognize the issue as an important one and to continue to strive for a workable and sensible resolution. But the jurisdictional inquiry also implicates another question of equal importance, but that has received less attention and thought. What does the determination that a rule is jurisdictional or not mean? For a jurisdictional rule, the answer is (usually) easy. (11) A jurisdictional rule can be raised by any party at any time, including for the first time on appeal; it obligates the court to police compliance sua sponte; and it is not subject to principles of equity, waiver, forfeiture, consent, or estoppel. (12) By contrast, the effects of a nonjurisdictional characterization are far less studied. Often, courts and commentators simply assume that nonjurisdictional rules have all of the inverse effects of jurisdictional rules: that is, they must be raised by a particular party by a particular time or they are forfeited; they are subject to consent and waiver and estoppel; and they are subject to principles of equity. Thus, some courts and commentators have assumed that if a rule has any attributes of jurisdictionality, it must be jurisdictional, and that if a rule is nonjurisdictional, then it must have no attributes of jurisdictionality. (13) In addition, that assumption is made without any meaningful discussion of what attributes the nonjurisdictional rule in question should have as an institutional, analytical, or normative matter. (14) As I will explain, that assumption is wrong, and reliance on it reflects a deep misunderstanding of, and underappreciation for, nonjurisdictional rules. This Article is the first to take a hard look at nonjurisdictional rules and the important roles they can play. Part I illustrates how courts and commentators have tended to confine nonjurisdictional rules to the mirror inverse of jurisdictional rules, and it exposes this rigid treatment of jurisdictional and nonjurisdictional rules as a false dichotomy. Nonjurisdictional rules need not have the opposite effects of jurisdictional rules--nor do they invariably in practice. The point is that characterizing a rule as nonjurisdictional does not tell us much about the rule's effects, and identifying a particular jurisdictional attribute of a rule does not tell us whether the rule is jurisdictional or not. As a result, courts and commentators falling victim to this false dichotomy often commit one of two errors. Either they erroneously mischaracterize a nonjurisdictional rule as jurisdictional, or they erroneously mischaracterize a nonjurisdictional rule as having no jurisdictional effects. Part II argues that this false dichotomy also obscures the opportunity to explore a more nuanced approach, in which a nonjurisdictional rule has some, but not all, of the attributes commonly associated with jurisdictionality. As an example, this Part focuses on the importance of the oft-overlooked "mandatory" rule, a species of nonjurisdictional rules that has both nonjurisdictional and jurisdictional effects. A mandatory rule is susceptible to waiver, forfeiture, and consent, and it need not be policed by the court sua sponte. But it is, like jurisdictional...See the full content of this document
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