Jurisdiction and Merits

Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev. 643 (2005)

I disagree heartily with Wasserman here. He takes a hard-line, no-way-is-this-jurisdictional approach to Title VII's employee-numerosity requirement, which is probably right as a matter of statutory interpretation, but his general discussion doesn't mention the Constitution and the relation of SMJ to limits on federal power.

For instance, he points out that the distinction between jurisdiction and merits has "primarily practical consequences" and also has "formalist consequences" (645), but does not mention the Constitution. The "formalist consequences" are merely those of "treating distinct legal concepts in a distinct manner" (which of course may or may not have any actual value, which is tied up in the pejorative (at least the way Wasserman uses it) label "formalist").

Wasserman sees jurisdictional elements as "establish[ing] legislative power to create a cause of action, but [they] have nothing to do with judicial authority to adjudicate that cause of action." (646) This seems to me to beg the question -- a jurisdictional element may or may not actually be jurisdictional. Whether it is depends on whether that element actually goes to judicial authority. The Title VII employee-numerosity requirement doesn't. The "in interstate commerce" portions of the Sherman Act, Title VII, or numerous other statutes, in my conception, does.

"Jurisdictional elements are about congressional jurisdiction ... . Jurisdictional elements have nothing to do with judicial jurisdiction ... ." 684

"If every statutory element reflects legislative choice, there is no justification for treating one choice ... as jurisdictional while treating all other choices ... as merits-based." (691) This is true enough, but the point is that the condition isn't satisfied: not every statutory element does reflect pure legislative choice -- some reflect the necessity to keep legislation within constitutional bounds.

Wasserman defines SMJ this way: "a court's constitutional and statutory power or authority to entertain, hear, decide, and resolve a legal or factual dispute in favor of one party or the other."

W also makes the argument that it's silly for something to be about SMJ in federal court but then not in state court. That's probably the best argument against my position, that a dismissal of a Title VII claim in state court would be for a different reason (failure to state a claim) than in federal court (SMJ). That said, just because the reasons are different doesn't mean this is bad. It's just a little weird. In fact, if you really dig down, maybe it's not so weird after all, because what is the court doing in each case? In the federal case, the court is saying, "We don't have power to hear this case because Congress doesn't have power to give us this case." In the state case, the court is saying, "You failed to state a claim because Congress doesn't have the power to reach that claim." In both cases, the point is that Congress couldn't reach the conduct the plaintiff is aiming at (in the Title VII case, that means discrimination by an employer in an industry not affecting interstate commerce). That the reaction to the fact that Congress didn't have such power is different in the different courts is only natural when you consider that the federal courts are different from the state courts, by Constitutional design!

References

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004)

Davis v. Passman, 442 U.S. 228 (1979)

Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)

John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513 (1998)

Kevin M. Clermont, Jurisdictional Fact (no citation; it wasn't published at the time)

Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953)

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (Scalia, J., dissenting)

Hagans v. Lavine, 415 U.S. 528 (1974)

Rhode Island v. Massachusetts, 37 U.S. 657 (1838)

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

Joan Steinman, After Steel Co.: "Hypothetical Jurisdiction" in the Federal Appellate Courts, 58 Wash. & Lee L. Rev. 855 (2001)

Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)

Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987)

Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)

McLain v. Real Estate Board of New Orleans, 444 U.S. 232 (1980)

Stephen Calkins, The 1990-91 Supreme Court Term and Antitrust: Toward Greater Certainty, 60 Antitrust L.J. 603 (1991)

Roxane C. Busey & Peter B. Freeman, The View From the Summit: Jurisdiction and Beyond, 60 Antitrust L.J. 725 (1991)

Citing references

Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006)

Tara M. Stuckey, Note, Jurisdictional Hooks in the Wake of Raich: On Properly Interpreting Federal Regulations of Interstate Commerce, 81 Notre Dame L. Rev. 2101 (2006)