The Emergence of Jurisdictional Resequencing in the Federal Courts

Scott C. Idleman, The Emergence of Jurisdictional Resequencing in the Federal Courts, 87 Cornell L. Rev. 1 (2001)

Read about half, but stopped once he got really into the arguments about resequencing -- I wanted to see what he had to say on judicial power, federal power, etc., but what's there isn't all that interesting / useful.

Note 4 talks about how the Court has expanded federal judicial power in certain ways, which is important to keep in mind. Cited for this are Dickerson and City of Boerne.

A quote from Ruhrgas points out (to me, not by Idleman) a potential Hohfeldian error by the Court: "Personal jurisdiction, too, is an essential element of the jurisdiction of a district court." But is "jurisdiction" being used in different ways here? What does jurisdiction actually mean? The Court doesn't seem to examine this question, simply skating over it.

Idleman points out potential federalism concerns of resequencing, which leads me to wonder about the lawmaking power implications: jurisdiction to determine jurisdiction means that lawmaking in the realm of "what is our jurisdiction" is legitimate; but a court that resequences makes law in the field of personal jurisdiction, and that action may not be legitimate.

At 28, Idleman points out that the constitutional avoidance rule itself has constitutional dimensions. But doesn't that mean that applying the constitutional avoidance rule is breaking the constitutional avoidance rule? Isn't the court then silently preferring one aspect of the constitution over another? (This is a side point, not necessarily relevant to the present, art1art3, inquiry.)

Idleman describes, at 33, SMJ "as an internal limitation on the existence of federal judicial power and thus the sovereignty of the federal government." The second part, re: sovereignty, is what interests me. SMJ is intimately related to the limited power of the federal government, so it would make sense to apply general, overall federal limits to SMJ as well as Congressional "jurisdiction".

At 35: "And from this architectural perspective, it is clear not only that structural features -- such as the principles of internally limited federal power, the separation of powers, and federalism -- are at the core of American constitutionalism ... ." I object to separating "internally limited federal power" from "separation of powers" and "federalism". What internal limits on federal power are there that aren't more specifically classifiable as being part of vertical or horizontal separation of powers? Perhaps there might be internal limits vis a vis individuals as well, so we can extend our categories to three: vertical, horizontal, and personal separation of powers. But either way, it seems silly to put "internal limits" on the same level of categorization as "federalism".

At 36: personal jurisdiction "does not concern sovereignty". Either Idleman has a completely different conception of sovereignty than I do (not out of the question, since I don't see a definition anywhere) or this is completely mistaken. A piece of personal jurisdiction is that this court represents the wrong sovereign. You can't sue me in Minnesota because Minnesota's sovereignty does not extend so far as to regulate my affairs. (I'm simplifying intentionally.) You can sue me in New York because New York is the sovereign that I have most immediately acknowledged as governing me (which acknowledgment comes about through living here). Thus it appears that sovereignty is every bit as relevant to PJ as it is to SMJ.

References

Dickerson v. United States, 530 U.S. 428 (2000) -- expansion of judicial power

City of Boerne v. Flores, 521 U.S. 507 (1997) -- expansion of judicial power

Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999)

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)

Thomas E. Baker, A Catalogue of Judicial Federalism in the United States, 46 S.C. L. Rev. 835 (1995)

Thomas E. Baker, A View to the Future of Judicial Federalism: "Neither Out Far nor In Deep", 45 Case W. Res. L. Rev. 705 (1995)

Leroy v. Great Western United Corp., 443 U.S. 173 (1979) -- importance of SMJ

Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379 (1884) -- importance of SMJ

The Federalist No. 51 (James Madison) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)

Marci A. Hamilton, City of Boerne v. Flores: A Landmark for Structural Analysis, 39 Wm. & Mary L. Rev. 699 (1998) -- limited federal power is more central to American constitutional scheme than limited governmental power (vis a vis individuals)

Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of the Judiciary (1994)

Daniel J. Meador, Inherent Judicial Authority in the Conduct of Civil Litigation, 73 Tex. L. Rev. 1805 (1995)

Healy v. Ratta, 292 U.S. 263 (1934) -- 10th and 11th Amendment federalism limits on judicial power

Ralph U. Whitten, Separation of Powers Restrictions on Judicial Rulemaking: A Case Study of Federal Rule 4, 40 Me. L. Rev. 41 (1988)

Musson Theatrical v. Fed. Express, 89 F.3d 1244 (6th Cir. 1996) -- federal judicial lawmaking as potentially violative of federalism and separation of powers

Citing references

Stephen I. Vladeck, The Increasingly "Unflagging Obligation": Federal Jurisdiction After Saudi Basic and Anna Nicole, 42 Tulsa L. Rev. 553 (2007)