My colleague Scott Dodson has established himself as one of the country’s leading civil procedure scholars by tackling some of the subject’s trickiest puzzles. In a recent article in the Georgetown Law Journal called “Jurisdiction and Its Effects,” Professor Dodson has done it again, training his sights on the vexed subject of jurisdiction.
Professor Dodson argues that the Supreme Court has gotten jurisdiction all wrong, even as it has given more and more importance to characterizing particular limits as “jurisdictional” in character. Professor Dodson observes that the Supreme Court has increasingly viewed jurisdiction as a matter of (1) power, (2) effects, and (3) positive law. In other words, recent cases treat questions of jurisdiction as questions about a court’s power to decide the case; they assign a fixed set of effects (such as non-waivability) to jurisdictional rules; and then they often view whether limits are jurisdictional as a function of underlying choices made by Congress or the Constitution.
This characterization frequently makes labeling choices outcome-determinative. In its 2015 decision United States v. Wong, for example, the Supreme Court divided sharply over whether the Federal Tort Claims Act’s limitations period was “jurisdictional” and thus (the justices presumed) immune to equitable tolling. At the same time, though, the Court’s approach creates labeling problems of its own. Personal jurisdiction, for example, is conventionally “jurisdictional,” but it does not clearly fit the Court’s emerging understanding of jurisdiction and does not carry the same draconian effects as other jurisdictional limits. (It is waivable, for example.)
The Court, in short, has driven itself into a swamp. Professor Dodson’s article proposes a path back to smooth asphalt: the Court should redefine jurisdiction and separate the labeling question from questions about legal effects.
The term “jurisdiction,” Professor Dodson argues, should be understood to refer to legal rules that sort claims between forums in a multi-forum legal system. Jurisdiction, he writes, “is a structural concept that helps allocate cases, define boundaries, and maintain relationships among competing forums,” whether they be federal and state courts or courts and legislatives and executive bodies.
This proposal leads to some unconventional regroupings of doctrines: standing and mootness, for example, would no longer be considered jurisdictional, whereas exhaustion and abstention would be. Yet the proposal also solves some otherwise-vexing descriptive problems, such as the question why personal jurisdiction is jurisdictional. Normatively, moreover, it would make the label less consequential by separating labeling issues from legal effects. Courts could then resolve questions about the proper legal effects of particular legal rules by considering directly what effects are warranted, rather than engaging in abstract debates over how to label the underlying rules in the first place.
Read Professor Dodson’s insightful and erudite tour through the many puzzles of jurisdiction.