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.
Showing posts with label jurisdiction. Show all posts
Showing posts with label jurisdiction. Show all posts
Tuesday, March 11, 2008
In Search of Removal Jurisdiction
Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 1 (2008)
Overall, it's not on point for me, but there are a few passages that are interesting:
"As 'power', jurisdiction embodies societal values, such as federalism, separation of powers, and a limited national government." (5)
"Jurisdictional rules ... protect the larger societal interests discussed above, even when they are not deemed worthy of protection by the litigants." (6)
"[T]he confusion between merits and jurisdiction is often grounded in a misconception of whose jurisdiction is at issue. Congress must be wary of its own authority to legislate. ... Congress is bound by that requirement when legislating under its Commerce Clause powers. It is not so bound when legislating under its Article III powers to control the lower courts." (16)
This is precisely what I disagree with, that Congress is not limited under Article I in granting jurisdiction. I don't see the Article III power as a separate power, unlimited by the Article I limits (common law making, whole-government federalism).
Note that this passage cites Wasserman's article, where he presents the same "jurisdiction of courts and Congress are different beasts" argument that I disagree with. Note further that this last statement, that Congress is not bound when legislating under the Article III powers, isn't footnoted.
Overall, it's not on point for me, but there are a few passages that are interesting:
"As 'power', jurisdiction embodies societal values, such as federalism, separation of powers, and a limited national government." (5)
"Jurisdictional rules ... protect the larger societal interests discussed above, even when they are not deemed worthy of protection by the litigants." (6)
"[T]he confusion between merits and jurisdiction is often grounded in a misconception of whose jurisdiction is at issue. Congress must be wary of its own authority to legislate. ... Congress is bound by that requirement when legislating under its Commerce Clause powers. It is not so bound when legislating under its Article III powers to control the lower courts." (16)
This is precisely what I disagree with, that Congress is not limited under Article I in granting jurisdiction. I don't see the Article III power as a separate power, unlimited by the Article I limits (common law making, whole-government federalism).
Note that this passage cites Wasserman's article, where he presents the same "jurisdiction of courts and Congress are different beasts" argument that I disagree with. Note further that this last statement, that Congress is not bound when legislating under the Article III powers, isn't footnoted.
The Dubious Concept of Jurisdiction
Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)
I think this was interesting, and it might even be correct as far as it goes, but "as far as it goes" doesn't seem to reach the Constitution -- Lee argues that jurisdictionality should be determined by policy and equity, not by abstract labels and appeals to the "nature" of the concept of jurisdiction. The argument thus harks back to some of the great pieces from MLP, like Hohfeld or Llewellyn. Thus it isn't clear what direct relevance this paper has. Perhaps as part of the Dodson / Wasserman series of articles that are obsessed with jurisdiction, but not the constitutional aspect, only the "Congress limiting the courts" aspect.
I think this was interesting, and it might even be correct as far as it goes, but "as far as it goes" doesn't seem to reach the Constitution -- Lee argues that jurisdictionality should be determined by policy and equity, not by abstract labels and appeals to the "nature" of the concept of jurisdiction. The argument thus harks back to some of the great pieces from MLP, like Hohfeld or Llewellyn. Thus it isn't clear what direct relevance this paper has. Perhaps as part of the Dodson / Wasserman series of articles that are obsessed with jurisdiction, but not the constitutional aspect, only the "Congress limiting the courts" aspect.
Bowles v. Russell
Bowles v. Russell, 551 U.S. ___ (2007)
As stated here, Bowles says that time limits are jurisdictional. Thomas writes one of his characteristically short, snappish opinions. Among other things, Thomas quotes Kontrick stating that "only Congress may determine a lower federal court's subject-matter jurisdiction." This isn't as unfortunate a statement as it may seem because Thomas's point is that Congress is the only institution that can determine SMJ -- he clearly doesn't mean, can't mean, that literally Congress determines SMJ: the Constitution, after all, has something to say about it.
Thomas's argument basically comes down to a distinction between "court-promulgated rules and limits enacted by Congress." This, of course, can't mean all that it says -- not every Congressional limit is jurisdictional. If that were so, then Arbaugh was just overruled. The employee-numerosity requirement, after all, is a "limit".
In any case, as I stated in the linked comment above, this case may be useful insofar as it stands for the idea that these issues of jurisdictionality are not settled, despite Arbaugh, and thus arguments about what the courts should treat as jurisdictional are still worth making.
As stated here, Bowles says that time limits are jurisdictional. Thomas writes one of his characteristically short, snappish opinions. Among other things, Thomas quotes Kontrick stating that "only Congress may determine a lower federal court's subject-matter jurisdiction." This isn't as unfortunate a statement as it may seem because Thomas's point is that Congress is the only institution that can determine SMJ -- he clearly doesn't mean, can't mean, that literally Congress determines SMJ: the Constitution, after all, has something to say about it.
Thomas's argument basically comes down to a distinction between "court-promulgated rules and limits enacted by Congress." This, of course, can't mean all that it says -- not every Congressional limit is jurisdictional. If that were so, then Arbaugh was just overruled. The employee-numerosity requirement, after all, is a "limit".
In any case, as I stated in the linked comment above, this case may be useful insofar as it stands for the idea that these issues of jurisdictionality are not settled, despite Arbaugh, and thus arguments about what the courts should treat as jurisdictional are still worth making.
Sunday, February 17, 2008
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)
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)
Is Jurisdiction Jurisdictional?
Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?, 95 Nw. U. L. Rev. 1207 (2001)
Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.
"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208
Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211
"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12
"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274
References
Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)
Cohens v. Virginia, 19 U.S. 264 (1821)
Ex parte McCardle, 74 U.S. 506 (1868)
The Federalist No. 80 (Alexander Hamilton)
Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.
"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208
Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211
"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12
"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274
References
Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)
Cohens v. Virginia, 19 U.S. 264 (1821)
Ex parte McCardle, 74 U.S. 506 (1868)
The Federalist No. 80 (Alexander Hamilton)
Ruhrgas
Ruhrgas v. Marathon Oil, 526 U.S. 574 (1999)
Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.
Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.
References
5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?
Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.
Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.
References
5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?
Steel Co.
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.
Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94
Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101
Finally: "For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." 101-02
Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).
References
Bell v. Hood, 327 U.S. 678 (1946)
Mitchell v. Maurer, 293 U.S. 237 (1934)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)
United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)
Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)
Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)
Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)
Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.
Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94
Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101
Finally: "For a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." 101-02
Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).
References
Bell v. Hood, 327 U.S. 678 (1946)
Mitchell v. Maurer, 293 U.S. 237 (1934)
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)
The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)
Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)
Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)
United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)
Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)
Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)
Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)
U.S. v. Hudson and Goodwin
United States v. Hudson and Goodwin, 11 U.S. 32 (1812)
If there's no statute granting jurisdiction to the federal court, then there's no jurisdiction, end of story. There are certain implied powers (to fine for contempt is mentioned; "jurisdiction to determine jurisdiction" is not but is likely included), but these "are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others ... ." 34
If there's no statute granting jurisdiction to the federal court, then there's no jurisdiction, end of story. There are certain implied powers (to fine for contempt is mentioned; "jurisdiction to determine jurisdiction" is not but is likely included), but these "are powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others ... ." 34
Thursday, January 31, 2008
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)
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)
Monday, April 23, 2007
Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes
John S. Baker, Jr. (LSU), Jurisdictional and Separation of Powers Strategies to Limit the Expansion of Federal Crimes, 54 Am. U. L. Rev. 545 (2005)
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
Basically, new federal crimes are bad, just politically motivated. It's not really Congress's sphere to do these things. It's not entirely clear that his analysis of Morrison and Lopez gibes with mine / what I think is right, e.g. lots of references to "commercial," when I think he should really be saying "economic."
There is, on p.564, an expression of the idea that if the jurisdictional hook can't be proved, then the court should dismiss for lack of jurisdiction. That's great - that's a little bit of support for the syllogism, isn't it? And it's particularly great, because he just kind of assumes - it's just a relatively blithe statement, not really worked out, which is precisely what I want to support the idea that people just understand this. See also p. 565.
The only real use is in the paragraph above - I think I don't really understand Baker's argument, though.
Interesting references
John E. Nowak & Ronald D. Rotunda, Constitutional Law Section 3.3 (6th ed. 2000) - constitutional limitations on federal congressional power turn into limitations on court jurisdiction
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