The Jurisdictional Label: Use and Misuse

Alex Lees, Note, The Jurisdictional Label: Use and Misuse, 58 Stan. L. Rev. 1457 (2006)

Actually comes rather close to what I want to say. But remember ML's advice.

Key to "jurisdictionality" for Lees is that jurisdictional limits are those that define institutions and make them unique. This applies, then, to distinctions between the state courts and federal courts; the legislature and the courts; and the trial and appellate courts. Unfortunately, Lees doesn't do a great job explaining why this should be so. It isn't a constitutional argument, nor is it one of those classic "here's the unstated principle that underlies all these cases and thus unifies them" arguments.

Perhaps most importantly, the Note ends up undermined by Arbaugh, which ends up saying that jurisdictional limits are just those that Congress says are such. This perhaps highlights an already existing problem with the piece rather than creates one: Congress always could take away the jurisdiction of the federal courts in almost any way imaginable (put aside all the arguments about this on Equal Protection grounds and whatnot). It's not really clear how the argument would deal with Congress just making an arbitrary limit in a statute jurisdictional, a limit that has nothing to do with separation of powers or federalism.