Jurisdiction's noble lie.

• Author: Bloom, Frederic M.

INTRODUCTION I. LEGAL JURISDICTION: A STANDARD VIEW A. Personal Jurisdiction and Forum Non Conveniens B. Subject-Matter Jurisdiction and Abstention C. A Short Summary II. LEGAL JURISDICTION: AN UNCONVENTIONAL VIEW A. A Broader Brush B. A Detailed Study 1. Personal jurisdiction 2. Subject-matter jurisdiction C. Lessons from the Evidence III. MOTIVES, THEORY, AND BENEFITS A. Jurisdiction and Equilibration B. Jurisdiction and Space IV. A NOBLE LIE A. Fictions, Subterfuges, and Legal Lies B. The Value of a Strange and Open Lie C. A Lie's Costs CONCLUSION INTRODUCTION

Jurisdiction poses a difficult problem. It claims to be something it is not. Jurisdiction claims to be "inflexible and without exception." (1) It casts itself as an "obligation" that rarely relents. (2) But the truth is something different. Jurisdiction is not a rigid legal constant or a duty courts never ignore. It is a place where strict limits sometimes falter and firm rules can bend. (3)

This Article attempts to document and defend that discrepancy. It aims to show how legal jurisdiction (4) trades on a deception--and then to make sense of why it would. Others may offer quick jurisdictional fixes, fast-acting tonics that promise to "'purg[e] the doctrine" of its many faults. (5) I mean to do something different, something more counterintuitive and curious. I mean to search out where jurisdictional rhetoric splits from jurisdictional reality--and then explain why that split endures.

Not that jurisdiction's split is unique in all facets. Other doctrines also resort to bold overstatement. Other doctrines use strict-sounding rules to mask less rigid realities too. (6) So other doctrines can teach us something useful about the causes and consequences of rhetorical excess. But jurisdiction's story still warrants separate retelling, and its pieces still merit careful review. There is a strange and revealing image of legal falsehoods in its broad outlines. And there are important and peculiar lessons in its distinctive details.

One of those lessons involves the shape of related doctrines. Jurisdiction's inaccurate rhetoric does more than misstate its own firmness. It creates a need for offsetting measures, elaborate "escape valve[s]" (7) devised to soften jurisdiction's hard rules. (8) Forum non conveniens exists to temper jurisdiction's (supposedly) fixed requirements, excusing courts from hearing cases they otherwise must. Federal-court abstention and supplemental jurisdiction likewise work to relax jurisdiction's (seemingly) inflexible limits--the first releasing courts from duties that otherwise bind them, the other permitting courts to claim authority they otherwise do not hold. (9) None would be necessary absent jurisdiction's own rigid terms.

Another lesson concerns the scope of judicial power. Jurisdiction's feigned inflexibility pushes that power in two ways at once. It pushes in part toward expanded court authority--not by increasing that authority directly, but by cautiously appeasing those who could scale it back. (10) Were courts less guarded about their jurisdictional discretion, Congress might feel goaded to react and rescind it. A bit of inflexible jurisdictional rhetoric, by contrast, might keep Congress passive and inactive, if not entirely duped. But jurisdiction's misleading rhetoric pushes against inflated judicial authority too--not by removing all jurisdictional latitude, but by warning against deviations too rash. Courts will still fashion exceptions, carving out new gaps in jurisdiction's preset rules. But those gaps may be more thoughtfully opened and less frequently invoked, not least because they have been so vigorously disavowed.

And still another lesson reveals the odd purpose of the ruse. Jurisdiction speaks a misleading language. In that sense it tells a lie. But jurisdiction's ploy is peculiar: It is a lie not designed to deceive. It is a lie devised instead to secure a set of functional, deliberative, and structural benefits that do not require us to be fooled. Jurisdiction's lie may not convince us. Nor may it even need to. It may focus adjudicative energy, encourage judicial caution, constrain jurisdictional discretion, and ease inter-branch tension--even if we know it is wrong.

This does not mean that jurisdiction's ruse is faultless. Its trick is not some heroic construct. So this Article does not try to present jurisdiction's lie as a model, a seamless ideal bearing no weighty flaws. Nor does it aim to praise deceit over integrity, as if a bit of clever court trickery should trump judicial honesty more blunt. But jurisdiction's false rigid front may persist for a reason. (11) It may prove less a tool of dreadful court duplicity than a kind of noble lie. (12)

This Article untangles that lie in four steps. Part I treads familiar jurisdictional ground. It presents jurisdiction in its standard form, recalling its basic meanings, its primary functions, its customary language, and its brief histories. Portions of this study may seem test-heavy and primer-like, a kind of sweeping topical survey of jurisdiction overall. But this first (credulous) review will itself prove useful, not least in counterpoint. To make sense of the split between jurisdictional rhetoric and jurisdictional reality we should start with what the doctrine so often purports to be. Part I thus begins with jurisdiction's self-styled portrait, rehearsing what its familiar self-image shows.

Part II resets that image. It recasts jurisdiction, not as something "absolutely compelling" (13) and uncompromisingly constant, but as something quietly flexible and carefully contingent--an invention that courts can bend. Part II then reads and critically re-reads a selection of well-known jurisdiction cases, each pulled from the Supreme Court's docket. (14) These cases offer concrete evidence of the split between jurisdictional rhetoric and jurisdictional reality. They show the Supreme Court eliding "contacts"-based categories, ignoring "well-pleaded complaint" mandates, and flouting "time of filing" rules--all after declaring those requirements too strict to move. Even more, these cases confirm a pivotal point: federal courts may disclaim the "authority to create ... exceptions to jurisdictional requirements," (15) but they create them all the same. Part II closes by asking why and when they would.

Part III takes up the challenge of answering those critical questions. It presents two jurisdictional concepts, each explaining why courts might prefer jurisdiction's more pliable pieces, and each suggesting when courts might use those pieces best. One concept derives from jurisdiction's broader adjudicative context--its relationship with substantive rights and judicial remedies, its influence on these other "stages" of litigation, (16) and the wisdom of trying to find balance (or "equilibration") among them. The other connects to more philosophical concerns--the often-ignored power of legalized "space," the role of judges as "geographers," and the value of jurisdictional malleability in a system of many sovereigns. (17) Both "equilibration" and "space" help illustrate how jurisdictional flexibility can promote worthy objectives--preserving judicial capital, crafting sensible adjudicative "composites," soothing federalist friction, and curtailing races among cultural competitors. And both "equilibration" and "space" hint at when jurisdiction's more pliable pieces might best be used. (18) Part III draws these descriptive and normative ideas together. It then asks its own necessary question: if jurisdiction is actually better for its flexibility, what should we make of its false rigid front?

Part IV offers a provisional answer. It rethinks jurisdiction's rhetoric of inflexibility, reading that language not as a classic legal fiction or a cunning judicial subterfuge, but as an open and constructive lie. It then provides a partial and preliminary explanation of why that legal oddity still endures. It argues that jurisdiction's misleading rhetoric may channel jurisdictional resources, counsel jurisdictional caution, shield jurisdictional integrity, and avert legislative overreaction--even if we know it is false. Part IV then admits and addresses the costs of jurisdictions shallow falsehood, using a familiar example to recount both possible benefits and inevitable (19) faults.

A brief conclusion then brings this Article to a close. It recounts the split between jurisdictional rhetoric and jurisdictional reality. It places longstanding case law on sharper footing. It forges initial connections between jurisdiction's overstated language and other legal pockets of rhetorical excess. And it highlights what is novel and what might be noble about jurisdiction's strange and open lie.

1. LEGAL JURISDICTION: A STANDARD VIEW

   Legal jurisdiction presents two blunt and basic options. A court with jurisdiction may reach a judgment, declare a winner, and assign a punishment. A court without it can do nothing "in any cause" at all. (20) No room exists between these alternatives. (21) And not even the Supreme Court admits the "authority to create ... exceptions" to jurisdiction's hard terms. (22)

   This Part examines the law behind this stark image. It explores jurisdiction's key pieces--its core elements, its primary purposes, its basic language and rules. It also (briefly) reviews a pair of jurisdictional adjuncts, two common-law doctrines that loosen jurisdiction's strict terms. Not all of this account is pioneering. It indulges the old "habit" of legal formalism, since jurisdiction is a place where "mechanical" rules still seem to thrive. (23) It also rehearses many of jurisdiction's most familiar lines. But this assessment still plays a crucial diagnostic part. To spot where jurisdictional rhetoric breaks from jurisdictional reality we should look first at the doctrine's own terms. This Part thus starts where jurisdiction does, presenting the doctrine in its standard modern...