Academic journal article William and Mary Law Review

Jurisdictional Procedure

Academic journal article William and Mary Law Review

Jurisdictional Procedure

Article excerpt

ABSTRACT

Scholars have lavished attention on the substance of jurisdictional doctrines such as standing, mootness, diversity, and federal question. They have left largely unexamined, however, the procedures courts use to address these doctrines; collectively, I refer to these procedures as "jurisdictional procedure." A paramount feature of jurisdictional procedure is the unique and virtually unqualified obligation federal courts possess to identify and decide issues of subject matter jurisdiction even if the parties and lower courts overlook these issues. Courts have reached no consensus about how to identify the facts necessary to effectuate this obligation. The confluence of courtinitiated legal inquiry and unpredictable factual investigation has profound consequences for the administration of justice.

The courts' duty to inquire into jurisdiction departs dramatically from the adversarial norms that dominate the American legal system. This departure, however, is necessary to preserve separation of powers. As judicial review and judicial supremacy have gained acceptance, courts have transcended the system of checks and balances through which the Constitution seeks to constrain federal power. In the absence of external checks on judicial authority, self-applied jurisdictional limitations, effectuated through an inquisitorial procedure nested within our adversarial system, fill a crucial role.

In inquiring into jurisdiction, courts often require parties to have developed the facts related to jurisdiction in the district court, even if the jurisdictional issue was not identified during that stage of the litigation. This marriage of traditional adversarial rules allocating responsibility to parties and the largely inquisitorial duty of courts to inquire into jurisdiction creates several problems. First, plaintiffs unfairly have their cases dismissed without the opportunity to provide facts related to newly arising jurisdictional concerns. Second, judicial resources go to waste because in some circumstances plaintiffs can file new claims that will require entirely new judicial proceedings. Third, courts inaccurately dismiss cases in circumstances in which jurisdiction would plainly exist if the court considered a completed factual record.

Courts can remain true to separation of powers principles while avoiding the pitfalls that often arise out of current jurisdictional procedure. To do so, they should investigate the facts necessary to correctly assess their jurisdiction. A duty to investigate jurisdictional facts would enable courts to balance their obligations to act when they have jurisdiction and to dismiss when they do not. It would more fully vindicate separation of powers. And, ultimately, it would create a fairer, more efficient, and more accurate legal process.

TABLE OF CONTENTS

INTRODUCTION
I. THE CONSTITUTIONAL FOUNDATIONS OF
   JURISDICTIONAL PROCEDURE
   A. Checks, Spurs, and Courts in Constitutional
   Design
   B. Evolving Judicial Power
   C. Internal Checks on Judicial Authority
II. THE THEORETICAL UNDERPINNINGS OF
   JURISDICTIONAL PROCEDURE
   A. Adversarial Theory and Inquisitorial Theory
   B. Translating Theory into Practice
III. THE FACTUAL DIMENSION OF JURISDICTIONAL
   PROCEDURE
   A. Facts and Subject Matter Jurisdiction
   B. Problems with Dismissing Based on the District
      Court Record
      1. Unfairness
      2. Inaccuracy
      3. Inefficiency
IV. THE REFORM OF JURISDICTIONAL PROCEDURE
   A. The Duty to Investigate Jurisdictional Facts
   B. Reposing the Duty in the District Court
   C. Potential Pitfalls and Alternatives
CONCLUSION

INTRODUCTION

Early in the Republic, the Supreme Court explained, "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing th[at] fact and dismissing the cause." (1) To carry out that function, federal courts have developed a host of doctrines delineating the metes and bounds of subject matter jurisdiction. …

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