A Critique of Jurisdictionality, 39
Available at: https://repository.uchastings.edu/faculty_scholarship/1817
Over the last two decades, and culminating in a quartet of cases decided in the last two terms, the Supreme Court has erected a frame work for determining when a rule is "jurisdictional." This framework is important because questions of jurisdictionality routinely come up in federal litigation. Pressing the virtues of simplicity and clarity in jurisdictional rules to avoid the costs of mistaken assumptions of jurisdiction, the framework deploys clear-statement rules and formalistic, rule-based tests in an effort to be, in the Court's words, "easy to apply" and "readily administrable." In this article, I expose the weak nesses of the Court's framework and show that the framework is neither administrable nor easy to apply, creates incoherence, and relies on shaky internal foundations. I then offer a series of fixes to the Court's framework to shore up its foundations.
Review of Litigation