Author:Preis, John F.

TABLE OF CONTENTS INTRODUCTION. 1415 I. THE QUESTION OF JURISDICTION. 1419 A. The Question and Why It Matters. 1419 B. The Current Approach. 1422 II. IDEALISM OR POSFUVISM?. 1426 A. Idealism and Its Flaws. 1426 B. Positivism and Its Flaws. 1431 III. IDEALISM AND POSITDTISM. 1437 A. The Approach Explained. 1437 B. The Approach Applied. 1440 CONCLUSION. 1446 INTRODUCTION

On December 3, 2008, the Supreme Court gathered for oral argument in Haywood v. Drown. (1) A key issue in the case was whether a particular statute was "jurisdictional," that is, whether it defined the jurisdiction of a court or rather provided substantive law to apply after the court had obtained jurisdiction. (2) About six minutes into the argument, Chief Justice John Roberts suggested that jurisdictionality can sometimes be discerned from the "look" of the statute. As he put it:

[A]t some point something starts to look jurisdictional, which is, look, we're not going to hear your case at all. In other areas, even if they call it jurisdictional, it really doesn't seem that way, such as, well, you've got to give this much notice or you've got to--you know, maybe those things aren't really jurisdictional. But saying you can't bring the case at all strikes me as really jurisdictional. (3) But then, a bit later in the argument, Justice Samuel Alito suggested a different test for jurisdictionality: "Isn't jurisdiction whatever the legislature says it is? Do you think there is some sort of--you know, a Platonic ideal of jurisdiction versus nonjurisdiction, and that's what we apply here?" (4)

These two statements frame a current debate over subject matter jurisdiction in the federal courts. On one side are those we might call the "jurisdictional idealists." The idealists believe that there is a "Platonic ideal" of jurisdiction such that some laws will "look jurisdictional" and others will not, (5) The idealist view is reminiscent of a quip often attributed to Abraham Lincoln: "If I should call a sheep's tail a leg, how many legs would it have? Four, because calling a tail a leg would not make it so." (6) Idealists can tell the difference between jurisdiction and nonjurisdiction, regardless of what you call it. (7)

Illustrative of the idealist approach is a new and provocative article by Professor Scott Dodson, a long-time scholar of federal jurisdiction. (8) In Dodson's view, jurisdiction has an "inherent identity" (9) that "[n]either Congress nor the courts can change." (10) The essence of jurisdiction is that it "determines forum in a multiforum legal system," and thus Congress may not declare rules jurisdictional if they do not pertain to forum. (11) Dodson's approach leads to some surprising conclusions, such as the law of standing being non-jurisdictional. (12) Though we have long called standing jurisdictional, (13) Dodson's article argues (as Lincoln might have) that calling it jurisdictional does not make it so. (14)

In contrast to the idealists are those we might call the "jurisdictional positivists." (15) The positivists believe that jurisdiction is "whatever the legislature says it is." (16) Congress has the power to create the lower federal courts, and if it wants to define their jurisdiction in odd ways, it is free to do so--just as all of us are free to call a tail a leg if it serves our purposes. (17)

The positivist approach is best illustrated by modern Supreme Court jurisprudence. At present, the Court will deem a statute jurisdictional if "Congress has 'clearly state[d]' that the rule is jurisdictional"--regardless of whether the statute has an inherent connection to forum. (18) If Congress has not made such a statement, however, "courts should treat the restriction as nonjurisdictional in character." (19) Scholars have generally lauded the Court's positivist stance, (20) though Professor Erin Morrow Hawley has recently criticized it as unnecessary. (21)

This Article critiques the idealist and positivist approaches. Although idealism properly recognizes that there is a widely shared understanding of jurisdiction, (22) it fails to acknowledge the congressional prerogative to depart from these widely shared understandings if it desires. (23) Today's sheep, it is true, only have four legs, but the path of evolution may one day give them five. Our Platonic ideal of a sheep, as with jurisdiction, can never be permanent; it is always subject to change at the hands of a higher power.

The positivist approach is also flawed. Although it appropriately recognizes Congress's preeminent authority to define federal jurisdiction, (24) it fails to account for the fact that "[j]urisdiction... is a word of many, too many, meanings." (25) Congress has used the word in a multitude of ways and contexts, many of which are almost certainly nonjurisdictional. (26) To declare that the word "jurisdiction" will always render a statute jurisdictional is like Noah Webster declaring that the word "bay" always refers to a body of water and never refers to horse's coloring. (27) A dictionary writer's job, much like that of the Supreme Court's, is to discern from the words spoken what is truly meant, not to declare by fiat what they shall mean henceforth. (28)

If neither idealism nor positivism is the answer, what is? In this Article, I argue that the answer is idealism and positivism. Under the combined approach I propose, a court would discern a statute's jurisdictionality by focusing on the statutory text (a positivist approach) in light of traditional conceptions of jurisdictionality (an idealist approach). For example, if Congress uses the word "jurisdiction" to define the remedial powers of district courts (for example, "district courts shall have jurisdiction to enjoin violations of this Act"), courts should not automatically conclude that the statute is jurisdictional simply because the j-word is present. Rather, courts should do what the clear statement rule currently prohibits them from doing: determine whether, in light of jurisdiction's traditional attributes, Congress was using the word in the traditional sense. (29) Of course, the downside of this approach is that it might deny Congress the opportunity to wield its jurisdictional powers in uncommon ways. This is possible, but not only are these instances likely to be rare, Congress can likely overcome this by making its jurisdictional choices more explicit than usual. In this sense, the solution to the current problem is not to abolish the clear statement rule, but to reform it.

This Article unfolds as follows. Part I provides a brief explanation of the current law, including the importance of the jurisdictional label and how federal courts determine whether to affix it to a particular statute. Part II presents the idealist and positivist approaches and explains why neither approach, on its own, is sufficient. Part III then offers a combined approach and explains why that approach, when used with a modified clear statement rule, is superior to the alternatives. Part III next applies that new approach to an issue currently splitting the circuits. A short conclusion follows.


    Before one can assess the merits of jurisdictional idealism and positivism, one must first understand how this question arises, the stakes underlying it, and how the Supreme Court has answered it in recent years. This Part does that by first explaining the question of jurisdiction and its importance, and then explaining how the Supreme Court currently answers the question.

    1. The Question and Why It Matters

      The following scenario arises frequently in federal courts: a plaintiff files a lawsuit and the defendant, at some point, points out a defect in the suit. The appropriate judicial response to the defendant's argument will depend on the nature of the defect. For instance, if the defect is substantive (for example, the plaintiff was contributorily negligent), (30) the court will ordinarily dismiss the suit with prejudice--but only if the defendant raised the defect at an appropriate time and in an appropriate way. (13) If the defendant failed to do so, the court will usually ignore the defect and allow the suit to proceed. (32)

      If the defect is not substantive, it might be procedural--such as the plaintiffs failure to file a document by a particular deadline. (33) When a defect is procedural, the court will usually impose some consequences on the plaintiff but not dismiss the suit. (34) Indeed, in these situations, federal courts generally have discretion to forgive such miscues altogether, provided the plaintiff has an innocent explanation for the error. (35) As with substantive defects, however, it is important that the defendant raise it at the appropriate time and in the appropriate manner. If the defendant fails to do this, he will have waived his right to challenge it. (36)

      If a defect is not substantive or procedural, it might be jurisdictional. For instance, if the plaintiff is seeking relief solely under state law but is a citizen of the same state as the defendant, the federal court will probably lack subject matter jurisdiction. (37) The court's treatment of jurisdictional defects, however, differs from its treatment of other defects in four ways. First, the defendant can raise the defect at any time during the litigation, even for the first time on appeal. Thus, jurisdictional defects are never waived or forfeited. (38) Second, even if the defendant never raises the defect, the court is obliged to affirmatively look for a defect on its own and, if the court finds one, dismiss the suit sua sponte. (39) Third, unlike procedural defects, the court can never overlook a jurisdictional defect, even if the plaintiff is blameless in the matter. Jurisdictional laws, the saying goes, are "inflexible" and must be strictly applied. (40) Fourth and finally, the court must dismiss the case without prejudice, thus allowing the plaintiff to refile the suit in a court with jurisdiction. (41)


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