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.

The Federalist #80

The Federalist #80 (Hamilton)

Hamilton argues that the courts' power must be coextensive with the legislature's, but he argues this in the positive direction, not the negative direction that I want to argue. That is, he argues that the court's should not be more limited than the legislature, whereas I argue that the court's must be as limited as the legislature.

The Federalist #51

The Federalist #51 (Madison)

The key quote that other sources seem to have referred to is: "In republican government, the legislative authority necessarily predominates." But note! Madison is not saying this as something we ought to strive toward, but as a problem! The very next sentence begins, "The remedy for this inconveniency ... ."

Given that the real aim of that statement is to set out something to fight against, I'm not sure this piece does the work I hoped it might, viz. establishes that the judiciary must be subordinated to the legislature. On the other hand, I guess Madison wouldn't disagree with that as a descriptive matter.

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)

The Lawmaking Power of the Federal Courts

Larry Kramer, The Lawmaking Power of the Federal Courts, 12 Pace L. Rev. 263 (1992)

Kramer argues that federal court lawmaking power is a useful thing, and thus that it should be permitted to the extent that it can be grounded in some statute already passed by Congress.

How is this any different from reality? As long as we understand interpretation of statutes as lawmaking, courts already make law grounded in statutes. It isn't clear what conception of common law Kramer has in mind to allow the courts to make.

Furthermore, is this even a limit that needs to be created? Doesn't limited federal jurisdiction mean that courts have common law power limited to federal statutes? That is, federal courts can already only hear cases based on established federal causes of action, which must be statutory (or Constitutional). So how can a court even have the opportunity to violate this limit?

Kramer notes that one value of separation of powers is that by establishing clear lines of authority, the branches won't waste time and resources "bickering about who is authorized to do what." (266) This seems rather Amero-centric, in that it takes the current system and can imagine no other. A competition-oriented system, on the other hand, doesn't seem unfeasible -- the lines would be drawn dynamically, based on which branches showed the ability to exercise the power best, via maximal efficiency, fairness, etc. Furthermore, American government includes plenty of overlap where "bickering" takes place, e.g. antitrust enforcement, where the FTC and the DOJ overlap quite a bit.

Kramer claims that judicial lawmaking is unavoidable because legislatures cannot anticipate every future use of a statute, i.e. interpretation is lawmaking. But isn't this only true where precedential value is given to prior interpretations? In a pure code system, where judges are tasked with reading the statute de novo for every case, isn't interpretation not actually lawmaking in quite the same sense? That is, the judge certainly makes a law in the sense of a lower-order norm, a concrete norm, but they make no higher, more general norms that later courts will follow, i.e. they make no law that is analogous to the law as it exists in the Code.

"As part of the federal government, any limits on federal power presumably bind the federal courts." (274)

Based on this view of common lawmaking power only upon federal statutes, how do we evaluate Arbaugh? Doesn't saying that the courts do have jurisdiction over cases not regulated by Congress give permission for the courts to make law in an area in which Congress has not "take[n] the first step"? (288) Congress has decided not to regulate small employers, has not taken the first step. The court decides to step in after all. Thus perhaps the federal courts' lawmaking power is broader than Kramer's conception.

References

Martin H. Redish, Federal Common Law, Political Legitimacy, and the Interpretive Process: An "Institutionalist" Perspective, 83 Nw. U. L. Rev. 761 (1989)

Martha A. Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 883 (1986)

Louise Weinberg, Federal Common Law, 83 Nw. U. L. Rev. 805 (1989)

Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory (1991)

Citing references

George Rutherglen, Reconstructing Erie: A Comment On The Perils of Legal Positivism, 10 Const. Comment 285 (1993)

Lenaerts, Koen; Gutman, Kathleen, Federal Common Law in the European Union: A Comparative Perspective from the United States, 54 Am. J. Comp. L. 1 (2006)

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