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.
Tuesday, March 11, 2008
Is Citizen Suit Notice Jurisdictional and Why Does it Matter?
Karl S. Coplan, Is Citizen Suit Notice Jurisdictional and Why Does it Matter?, 10 Widener L. Rev. 49 (2003)
Not useful -- very specific question, narrow answer, non-constitutional, etc.
Not useful -- very specific question, narrow answer, non-constitutional, etc.
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.
Jurisdictionality and Bowles v. Russell
Scott Dodson, Jurisdictionality and Bowles v. Russell, 102 Nw. U. L. Colloqy 42 (2007)
Just basically a note on Bowles v. Russell, which holds that time limits are jurisdictional. It's a preposterous decision, 5-4, conservatives over liberals, but it utterly ignores Arbaugh.
That said, this article isn't really relevant to me now. The case might be as an example of how even Arbaugh, with its categorical rule, hasn't actually settled these questions, that there might be more room for debate on these issues.
Just basically a note on Bowles v. Russell, which holds that time limits are jurisdictional. It's a preposterous decision, 5-4, conservatives over liberals, but it utterly ignores Arbaugh.
That said, this article isn't really relevant to me now. The case might be as an example of how even Arbaugh, with its categorical rule, hasn't actually settled these questions, that there might be more room for debate on these issues.
Monday, March 3, 2008
Misguided Federalism
Peter J. Henning, Misguided Federalism, 68 Mo. L. Rev. 389 (2003)
There were apparently a spate of cases saying that prosecuting people under federal statutes with jurisdictional elements when the jurisdictional element wasn't met was a violation of the executive power. Henning argues that this is "misguided". He says that federalism limits just don't apply to the executive's power to apply the law.
Note how this is different from the treaty power stuff discussed below: the power to apply the law isn't one of those things listed in Section 2; thus I disagree with Henning because I think the executive's other powers, the non-Section 2 powers, are subservient to the legislative powers and thus are limited in the same way. If Congress cannot legislate beyond the bounds of interstate commerce, how can the Dept. of Justice claim the authority to prosecute people outside those bounds? (Not just statutory authority, note, but Constitutional authority.)
"Federalism is an issue of congressional power to enact regulations that operate on the states directly in their role as sovereigns, and not one of whether the federal government can exercise its power over individuals." (399)
Henning phrases the executive's power as being one to apply valid laws. Thus, since these laws with jurisdictional elements are valid, the executive can apply them. But that's taking a pure facial perspective on things. Look at this from the as-applied perspective -- laws aren't valid or not valid, they can be used validly and invalidly. In this case, the question is whether the executive is using the law validly, i.e. whether it's constitutional to apply the law to this particular defendant. If that defendant doesn't meet the jurisdictional element, I say "no". (Here is where O'Connor's argument about Lopez and Morrison merely being "drafting guides" comes in -- if Henning's argument is right, if all Congress need do is put in a jurisdictional element and then let the whole world run its course, then those cases really do become drafting guides, not actual limitations on federal power. (Of course, as a practical matter, the limits are real, because a case outside the jurisdictional element will be dismissed, on the grounds of failure to state a claim or the equivalent in the criminal context. But that doesn't mean that we should ignore the structural problems created by corner cases.))
Henning also oddly seems to separate the idea of "federalism" from the Commerce Clause -- I've conceived of the Commerce Clause as one of many implementations, in the Constitution and elsewhere, of the concept of federalism. It's not clear why Henning treats them as seemingly distinct entities. (Or maybe I've overread his language to mean something it doesn't.) He talks about the language about "truly local vs. truly national" as being about federalism, and economic language as being about commerce. I, on the other hand, had always read the "truly local" language as merely being a restatement of the limitation that Commerce imposes, that is that Congress can't reach the "truly local" because it isn't involved in interstate commerce. There's reasonable disagreement to be had there. Similarly, the language about family law and violent crimes being beyond federal reach I read as statements that these things fall outside the Commerce power, not that they are outside of federal reach because of some nontextual federalism reasons, which is how Henning reads that language.
Henning reads Lopez's request for a jurisdictional element as wanting to "provide[] some measure of comfort that the particular prosecution embodies the interests of the national government." (430) Again, I disagree -- I think the value of jurisdictional elements is in the fact that they provide an ironclad guarantee that the federal power will not be exceeded, not by Congress, not by the courts, and not by the executive.
There were apparently a spate of cases saying that prosecuting people under federal statutes with jurisdictional elements when the jurisdictional element wasn't met was a violation of the executive power. Henning argues that this is "misguided". He says that federalism limits just don't apply to the executive's power to apply the law.
Note how this is different from the treaty power stuff discussed below: the power to apply the law isn't one of those things listed in Section 2; thus I disagree with Henning because I think the executive's other powers, the non-Section 2 powers, are subservient to the legislative powers and thus are limited in the same way. If Congress cannot legislate beyond the bounds of interstate commerce, how can the Dept. of Justice claim the authority to prosecute people outside those bounds? (Not just statutory authority, note, but Constitutional authority.)
"Federalism is an issue of congressional power to enact regulations that operate on the states directly in their role as sovereigns, and not one of whether the federal government can exercise its power over individuals." (399)
Henning phrases the executive's power as being one to apply valid laws. Thus, since these laws with jurisdictional elements are valid, the executive can apply them. But that's taking a pure facial perspective on things. Look at this from the as-applied perspective -- laws aren't valid or not valid, they can be used validly and invalidly. In this case, the question is whether the executive is using the law validly, i.e. whether it's constitutional to apply the law to this particular defendant. If that defendant doesn't meet the jurisdictional element, I say "no". (Here is where O'Connor's argument about Lopez and Morrison merely being "drafting guides" comes in -- if Henning's argument is right, if all Congress need do is put in a jurisdictional element and then let the whole world run its course, then those cases really do become drafting guides, not actual limitations on federal power. (Of course, as a practical matter, the limits are real, because a case outside the jurisdictional element will be dismissed, on the grounds of failure to state a claim or the equivalent in the criminal context. But that doesn't mean that we should ignore the structural problems created by corner cases.))
Henning also oddly seems to separate the idea of "federalism" from the Commerce Clause -- I've conceived of the Commerce Clause as one of many implementations, in the Constitution and elsewhere, of the concept of federalism. It's not clear why Henning treats them as seemingly distinct entities. (Or maybe I've overread his language to mean something it doesn't.) He talks about the language about "truly local vs. truly national" as being about federalism, and economic language as being about commerce. I, on the other hand, had always read the "truly local" language as merely being a restatement of the limitation that Commerce imposes, that is that Congress can't reach the "truly local" because it isn't involved in interstate commerce. There's reasonable disagreement to be had there. Similarly, the language about family law and violent crimes being beyond federal reach I read as statements that these things fall outside the Commerce power, not that they are outside of federal reach because of some nontextual federalism reasons, which is how Henning reads that language.
Henning reads Lopez's request for a jurisdictional element as wanting to "provide[] some measure of comfort that the particular prosecution embodies the interests of the national government." (430) Again, I disagree -- I think the value of jurisdictional elements is in the fact that they provide an ironclad guarantee that the federal power will not be exceeded, not by Congress, not by the courts, and not by the executive.
All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806
William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776-1806, 101 Colum. L. Rev. 990 (2001)
Another shot across the bow in the texualism, originalism, living constitution debates. "Judicial power" is asked about to question whether judges have the power to read statutes in particular ways. I didn't get past the introduction, since it's a long piece, and it's not clear how helpful it'll actually be.
Another shot across the bow in the texualism, originalism, living constitution debates. "Judicial power" is asked about to question whether judges have the power to read statutes in particular ways. I didn't get past the introduction, since it's a long piece, and it's not clear how helpful it'll actually be.
Abstention and the Constitutional Limits of the Judicial Power of the United States
Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. Rev. 811 (1991)
Argues that the abstention doctrines are really the Court enforcing the concept of dual sovereignty (i.e. federalism) on itself. This supports my position to the extent that I need to show that the Court does need to consider federalism when it acts, i.e. that federalism ain't just for Congress.
Citing references
Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 Cal. L. Rev. 613 (1999)
Bradford C. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)
Argues that the abstention doctrines are really the Court enforcing the concept of dual sovereignty (i.e. federalism) on itself. This supports my position to the extent that I need to show that the Court does need to consider federalism when it acts, i.e. that federalism ain't just for Congress.
Citing references
Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 Cal. L. Rev. 613 (1999)
Bradford C. Clark, Ascertaining the Laws of the Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)
"Arising Under" Jurisdiction in the Federalism Renaissance: Verizon Maryland Inc. v. Public Service Commission of Maryland
Michelle Reed, Note, "Arising Under" Jurisdiction in the Federalism Renaissance: Verizon Maryland Inc. v. Public Service Commission of Maryland, 2002 B.Y.U. L. Rev. 717 (2002)
Completely irrelevant to what I'm doing. But here's a good line: "The federal circuits are deeply splintered on nearly all issues." I'll say!
Completely irrelevant to what I'm doing. But here's a good line: "The federal circuits are deeply splintered on nearly all issues." I'll say!
More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional
Brian W. Portugal, Note, More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional, 56 Baylor L. Rev. 1019 (2004)
Points out that SMJ is a constitutionally based doctrine, but then only performs a statutory interpretation analysis to determine whether the forum defendant rule should be considered constitutional. It thus isn't that interesting for me except as an example of "yet another jurisdictionality paper".
(Cited in a petition for a writ of cert. in a forum defendant case! (Writ denied.))
Points out that SMJ is a constitutionally based doctrine, but then only performs a statutory interpretation analysis to determine whether the forum defendant rule should be considered constitutional. It thus isn't that interesting for me except as an example of "yet another jurisdictionality paper".
(Cited in a petition for a writ of cert. in a forum defendant case! (Writ denied.))
Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine
Katherine Florey, Note, Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine, 92 Cal. L. Rev. 1375 (2004)
I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.
Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.
I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.
Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.
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