|
Article Excerpt
INTRODUCTION
I. LEGAL JURISDICTION: A STANDARD VIEW A. Personal Jurisdiction and Forum Non Conveniens B. Subject-Matter Jurisdiction and Abstention C. A Short Summary II. LEGAL JURISDICTION: AN UNCONVENTIONAL VIEW A. A Broader Brush B. A Detailed Study 1. Personal jurisdiction 2. Subject-matter jurisdiction C. Lessons from the Evidence III. MOTIVES, THEORY, AND BENEFITS A. Jurisdiction and Equilibration B. Jurisdiction and Space IV. A NOBLE LIE A. Fictions, Subterfuges, and Legal Lies B. The Value of a Strange and Open Lie C. A Lie's Costs CONCLUSION
INTRODUCTION
Jurisdiction poses a difficult problem. It claims to be something it is not. Jurisdiction claims to be "inflexible and without exception." (1) It casts itself as an "obligation" that rarely relents. (2) But the truth is something different. Jurisdiction is not a rigid legal constant or a duty courts never ignore. It is a place where strict limits sometimes falter and firm rules can bend. (3)
This Article attempts to document and defend that discrepancy. It aims to show how legal jurisdiction (4) trades on a deception--and then to make sense of why it would. Others may offer quick jurisdictional fixes, fast-acting tonics that promise to "'purg[e] the doctrine" of its many faults. (5) I mean to do something different, something more counterintuitive and curious. I mean to search out where jurisdictional rhetoric splits from jurisdictional reality--and then explain why that split endures.
Not that jurisdiction's split is unique in all facets. Other doctrines also resort to bold overstatement. Other doctrines use strict-sounding rules to mask less rigid realities too. (6) So other doctrines can teach us something useful about the causes and consequences of rhetorical excess. But jurisdiction's story still warrants separate retelling, and its pieces still merit careful review. There is a strange and revealing image of legal falsehoods in its broad outlines. And there are important and peculiar lessons in its distinctive details.
One of those lessons involves the shape of related doctrines. Jurisdiction's inaccurate rhetoric does more than misstate its own firmness. It creates a need for offsetting measures, elaborate "escape valve[s]" (7) devised to soften jurisdiction's hard rules. (8) Forum non conveniens exists to temper jurisdiction's (supposedly) fixed requirements, excusing courts from hearing cases they otherwise must. Federal-court abstention and supplemental jurisdiction likewise work to relax jurisdiction's (seemingly) inflexible limits--the first releasing courts from duties that otherwise bind them, the other permitting courts to claim authority they otherwise do not hold. (9) None would be necessary absent jurisdiction's own rigid terms.
Another lesson concerns the scope of judicial power. Jurisdiction's feigned inflexibility pushes that power in two ways at once. It pushes in part toward expanded court authority--not by increasing that authority directly, but by cautiously appeasing those who could scale it back. (10) Were courts less guarded about their jurisdictional discretion, Congress might feel goaded to react and rescind it. A bit of inflexible jurisdictional rhetoric, by contrast, might keep Congress passive and inactive, if not entirely duped. But jurisdiction's misleading rhetoric pushes against inflated judicial authority too--not by removing all jurisdictional latitude, but by warning against deviations too rash. Courts will still fashion exceptions, carving out new gaps in jurisdiction's preset rules. But those gaps may be more thoughtfully opened and less frequently invoked, not least because they have been so vigorously disavowed.
And still another lesson reveals the odd purpose of the ruse. Jurisdiction speaks a misleading language. In that sense it tells a lie. But jurisdiction's ploy is peculiar: It is a lie not designed to deceive. It is a lie devised instead to secure a set of functional, deliberative, and structural benefits that do not require us to be fooled. Jurisdiction's lie may not convince us. Nor may it even need to. It may focus adjudicative energy, encourage judicial caution, constrain jurisdictional discretion, and ease inter-branch tension--even if we know it is wrong.
This does not mean that jurisdiction's ruse is faultless. Its trick is not some heroic construct. So this Article does not try to present jurisdiction's lie as a model, a seamless ideal bearing no weighty flaws. Nor does it aim to praise deceit over integrity, as if a bit of clever court trickery should trump judicial honesty more blunt. But jurisdiction's false rigid front may persist for a reason. (11) It may prove less a tool of dreadful court duplicity than a kind of noble lie. (12)
This Article untangles that lie in four steps. Part I treads familiar jurisdictional ground. It presents jurisdiction in its standard form, recalling its basic meanings, its primary functions, its customary language, and its brief histories. Portions of this study may seem test-heavy and primer-like, a kind of sweeping topical survey of jurisdiction overall. But this first (credulous) review will itself prove useful, not least in counterpoint. To make sense of the split between jurisdictional rhetoric and jurisdictional reality we should start with what the doctrine so often purports to be. Part I thus begins with jurisdiction's self-styled portrait, rehearsing what its familiar self-image shows.
Part II resets that image. It recasts jurisdiction, not as something "absolutely compelling" (13) and uncompromisingly constant, but as something quietly flexible and carefully contingent--an invention that courts can bend. Part II then reads and critically re-reads a selection of well-known jurisdiction cases, each pulled from the Supreme Court's docket. (14) These cases offer concrete evidence of the split between jurisdictional rhetoric and jurisdictional reality. They show the Supreme Court eliding "contacts"-based categories, ignoring "well-pleaded complaint" mandates, and flouting "time of filing" rules--all after declaring those requirements too strict to move. Even more, these cases confirm a pivotal point: federal courts may disclaim the "authority to create ... exceptions to jurisdictional requirements," (15) but they create them all the same. Part II closes by asking why and when they would.
Part III takes up the challenge of answering those critical questions. It presents two jurisdictional concepts, each explaining why courts might prefer jurisdiction's more pliable pieces, and each suggesting when courts might use those pieces best. One concept derives from jurisdiction's broader adjudicative context--its relationship with substantive rights and judicial remedies, its influence on these other "stages" of litigation, (16) and the wisdom of trying to find balance (or "equilibration") among them. The other connects to more philosophical concerns--the often-ignored power of legalized "space," the role of judges as "geographers," and the value of jurisdictional malleability in a system of many sovereigns. (17) Both "equilibration" and "space" help illustrate how jurisdictional flexibility can promote worthy objectives--preserving judicial capital, crafting sensible adjudicative "composites," soothing federalist friction, and curtailing races among cultural competitors. And both "equilibration" and "space" hint at when jurisdiction's more pliable pieces might best be used. (18) Part III draws these descriptive and normative ideas together. It then asks its own necessary question: if jurisdiction is actually better for its flexibility, what should we make of its false rigid front?
Part IV offers a provisional answer. It rethinks jurisdiction's rhetoric of inflexibility, reading that language not as a classic legal fiction or a cunning judicial subterfuge, but as an open and constructive lie. It then provides a partial and preliminary explanation of why that legal oddity still endures. It argues that jurisdiction's misleading rhetoric may channel jurisdictional resources, counsel jurisdictional caution, shield jurisdictional integrity, and avert legislative overreaction--even if we know it is false. Part IV then admits and addresses the costs of jurisdictions shallow falsehood, using a familiar example to recount both possible benefits and inevitable (19) faults.
A brief conclusion then brings this Article to a close. It recounts the split between jurisdictional rhetoric and jurisdictional reality. It places longstanding case law on sharper footing. It forges initial connections between jurisdiction's overstated language and other legal pockets of rhetorical excess. And it highlights what is novel and what might be noble about jurisdiction's strange and open lie.
I. LEGAL JURISDICTION: A STANDARD VIEW
Legal jurisdiction presents two blunt and basic options. A court with jurisdiction may reach a judgment, declare a winner, and assign a punishment. A court without it can do nothing "in any cause" at all. (20) No room exists between these alternatives. (21) And not even the Supreme Court admits the "authority to create ... exceptions" to jurisdiction's hard terms. (22)
This Part examines the law behind this stark image. It explores jurisdiction's key pieces--its core elements, its primary purposes, its basic language and rules. It also (briefly) reviews a pair of jurisdictional adjuncts, two common-law doctrines that loosen jurisdiction's strict terms. Not all of this account is pioneering. It indulges the old "habit" of legal formalism, since jurisdiction is a place where "mechanical" rules still seem to thrive. (23) It also rehearses many of jurisdiction's most familiar lines. But this assessment still plays a crucial diagnostic part. To spot where jurisdictional rhetoric breaks from jurisdictional reality we should look first at the doctrine's own terms. This Part thus starts where jurisdiction does, presenting the doctrine in its standard modern form.
Standard as this form may be, of course, it still raises compositional concerns. One concern involves focus, another scope--and both should be addressed outright. First, then, this Article focuses on the jurisdiction of federal courts. State courts encounter their own jurisdictional problems, and they figure prominently in some of the stories told below. But this Article looks to the jurisdiction of federal courts--something often quite comparable to state-court jurisdiction, but also often quite different from it. (24) Second, this Article looks at both of legal jurisdiction's two sides. Few surveys attempt to address both "personal" and "subject-matter" jurisdiction, perhaps for fear of analytical overreaching. (25) This Article risks that overreaching. It offers a careful, if condensed, (26) account of both of jurisdiction's halves--and it does so for a reason. Looking at jurisdiction's two sides together helps expose trends and themes that narrower lenses tend to omit. (27) Looking at jurisdiction as a whole, that is, allows us to trace critical lines we tend to ignore.
Subpart A begins that tracing. It studies jurisdiction's more "territorial" side, looking at personal jurisdiction and its somewhat-tardy analog, forum non conveniens. Subpart B turns to subject-matter jurisdiction and its own slightly belated cousin, federal-court abstention. (28) Subpart C then (re)connects these pieces, presenting jurisdiction's customary picture in full form.
A. Personal Jurisdiction and Forum Non Conveniens
Personal jurisdiction asks a simple question. It asks whether a particular court may enter judgment against a particular defendant in a particular case. (29) The answer to this question may depend on territorial contacts, valid contract, party consent, or adjudicative burdens--but never on substance. Personal jurisdiction is indifferent to the character of the underlying dispute, in theory at least. (30)
The source of this jurisdictional limit is the United States Constitution--if only partly (31) and vaguely so. Nothing in the Constitution s text says anything about "personal jurisdiction" or "territorial limits on adjudicative authority." (32) Instead, courts (and scholars) have fixed this border-based limit to a pair of more oblique constitutional terms: the Full Faith and Credit Clause, (33) where personal jurisdiction's story may well start; (34) and the Due Process Clause, where that story may well end. (35)
Most tellings of this story begin with Pennoyer v. Neff, (36) that long and turgid quarrel over a piece of Oregon land. A few scholars have stretched the doctrine back even further, (37) linking modern personal jurisdiction analysis to D'Arcy v. Ketchum (38) and Justice Johnson's dissent in Mills v. Duryee. (39) Some have even connected personal jurisdiction's distinctly territorial (or "spatial") turn to the Treaty of Westphalia and the end of the Thirty Years War. (40) But Pennoyer remains the anchor of modern personal jurisdiction doctrine, even if that anchor has long since come loose. (41)
What keeps Pennoyer so compelling is not the glamour of its facts. Nor is it Pennoyer's rogue-filled cast--the embittered Oregon governor, the "illiterate but litigious settler," the "bigamous United States Senator ... elected under an alias." (42) What keeps Pennoyer so compelling, rather, is the puzzle of its majority opinion, penned by Justice Field.
Justice Field's opinion builds from "two well-established principles of public law." (43) The first holds that "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." (44) The second says that "no State can exercise direct jurisdiction and authority over persons or property without its territory." (45) Not everyone thought these two principles were rightly invoked, even then. (46) Fewer still subscribe to both principles now. (47) But in Pennoyer these territorial principles proved decisive. They defeated personal jurisdiction over Neff, a defendant who had not been served with process--and was thus not adequately "present"--within Oregon state lines. (48)
And Pennoyer could have stopped there. The Court's two public-law "principles" were enough, most say, (49) to determine Neff's fate without more. But Pennoyer took another step regardless, locating support for its conclusion in the Fourteenth Amendment's Due Process Clause. Some have called this due process step inapposite, noting that the Fourteenth Amendment was not yet ratified at the time of the relevant dispute. (50) Harsher critics have labeled the step distracting--pure "dictum" at best. (51) But Pennoyer's turn to due process was no mere anachronism. It was a choice of lasting influence, both for litigants and for courts.
Much of that influence is felt in doctrinal policy. No Court before Pennoyer had so knotted personal jurisdiction's focus on federalist imperatives (52) with a concern for individualized fairness--and no Court has untangled the two since. (53)
But even more of Pennoyer's lasting influence comes from the constitutional (54) tradition it inspired. This tradition has its skeptics. Some say that it rests on precarious foundations, promotes inaccurate history, and generates consequences that seem unwise. (55) Others claim that it warrants serious "refine[ment]" (56) and "revis[ion]," (57) if not rejection outright. But Pennoyer's due process mark still defines the law of personal jurisdiction. (58) And no case bears that mark as plainly as International Shoe Co. v. Washington. (59)
International Shoe is not blessed with exhilarating facts. It involves no particularly scurrilous parties and no especially scandalous claims. It involves instead a Missouri corporation hoping to sell shoes in Washington and a sovereign state hoping to collect contributions to its unemployment fund. (60) Yet this lackluster setting still gave rise to important jurisdictional change. International Shoe altered key definitions, expanding Pennoyer's strict (territorial) notion of "presence" to include both physical tenancy and more "symbolic forms" (61)--like non-resident "activities" within a forum state. (62) It expanded personal jurisdiction's powerful net, distinguishing physical location from legal residence. (63) And it reworked core jurisdictional analyses, adding new features--like "contacts," "relations," and "notions of fair play" (64)--to personal jurisdiction's basic test.
Later Supreme Court opinions applied and adjusted this test over time. Some of these opinions brought old doctrinal pieces together. (65) Others broke new pieces apart. (66) Some revived elements of Pennoyer's most fundamental premises--in particular contexts, at least. (67)
And still others assembled a prescribed and categorical approach to personal jurisdiction disputes. One part of this approach assesses "general" personal jurisdiction, a type that permits a court to act without regard to the claims alleged or the nature of the dispute. (68) Another part considers "specific" personal jurisdiction, a type that extends court power over a defendant only in a particular suit. (69) Of the two, "general" is more straightforward: It requires no special connection between the claims asserted and the defendant's contacts with the forum--so long as the defendant lives, is incorporated, maintains a principal place of business, (70) sustains "substantial and continuous" contacts, or is served with valid process in the relevant locale. (71) "Specific" personal jurisdiction is comparatively abstruse: It requires that the defendant have some purposeful contact (however isolated or "minimal") (72) with the relevant forum and that those contacts be related to the substance of the case. Even more, "specific" demands that the assertion of jurisdiction be "reasonable" according to five Supreme Court-crafted factors: the burden on the defendant, the plaintiff's interest in obtaining relief, the interests of the forum state, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. (73)
No one doubts that this prescribed approach has grown elaborate, even convoluted in parts. Its "general" and "specific" options are saddled with multiple layers, overlapping features, and "accumulate[ed]" supplements. (74) Even the Supreme Court has acknowledged that small pockets of "flexib[ility]" inform the robust analytical structure it has built. (75)
But more often the Court speaks of strictness, not pliability. It declares jurisdiction's structure dependably solid, built on "rigid categories" "theoretically unaltered" by new doctrine and time. (76) It warns against the "mistake" of pushing any hint of flexibility too far. (77) And it insists that modern personal jurisdiction analysis provides a well-defined path to "evident" conclusions and a mechanical means to "natural" results. (78)
Some of these results will be outlined in detail below. They will show how the Court applies its formal jurisdictional mandates, and they will reveal too what those mandates might disguise. But this preliminary review is itself important, if only as a predicate step. It puts the critical examination that follows in jurisdictional context. And it frames personal jurisdiction in the categorical way that modern courts do. (79)
No understanding of personal jurisdiction would be complete, of course, without some mention of forum non conveniens--that strange and understudied "housekeeping rule." (80) Forum non conveniens is not a jurisdictional mandate. Nor can it claim deep statutory or constitutional roots. (81) Forum non conveniens is instead a judge-made "escape valve," (82) a common-law trapdoor that permits courts to dismiss cases otherwise within their jurisdictional purview. (83)
Explanations for this doctrine are sometimes ethereal and sometimes concrete. Some link forum non conveniens to the federal courts' "inherent power." (84) Others fix it to case-specific facts. But neither explanation seems to change how the doctrine applies: Courts dismiss cases for forum non conveniens only when an alternative forum is available and dismissal is ("strongly") indicated by an array of "interests." (85) These "interests" divide into "public" and "private" groups (86)--the former looking at docket pressures, local preferences, jury burdens, and conflicts of law; (87) the latter at access to evidence, burdens on parties, "obstacles" to fair trial, and "all other practical" concerns. (88) They also sound "almost identical" to personal jurisdiction's reasonableness factors in style and tone. (89)
This similarity is no coincidence. Forum non conveniens is not just a common-law trapdoor for parties. It is a procedural backstop for courts, a handy tool allowing judges to release jurisdictional pressures and to avert jurisdictional excess, however tardily. (90) Personal jurisdiction may be responsible for many of these pressures and much of this excess. But surely some appears in other jurisdictional settings. Surely some appears in the context of subject-matter jurisdiction, a separate (if related)jurisdictional limit that Subpart B next explores.
B. Subject-Matter Jurisdiction and Abstention
Subject-matter jurisdiction asks its own straightforward question. It asks whether a particular court has the authority to resolve a particular type of suit. (91) The answer to this question does not depend on contacts, contract, consent, or convenience--though some believe that it should. (92) It depends instead on substantive law, party citizenship, and the basis of the litigants' claims.
The source of this jurisdictional limit is again the United States Constitution--though this time more evidently so. Article III expressly lists those "cases" and "controversies" within the "judicial Power" of federal courts, confining that catalog to nine subject-matter heads. (93) Congress has in turn narrowed that "Power," implementing pieces (94) of Article III's grant over time. (95) Only those claims satisfying both constitutional and statutory demands fall within the limited subject-matter jurisdiction of federal district courts. (96) NO others do.
This jurisdictional limit can seem an "expensive habit." (97) Parties may not waive, disguise, or stumble through subject-matter jurisdiction defects. Nor may federal courts avoid, elide, or ignore them--no matter when they emerge. (98) Courts are told to decide subject-matter jurisdiction questions first in most cases. But they must resolve them always and unfailingly, even if last. (99)
Most "original" subject-matter questions follow one of two lines. The first is called "federal-question," and it aims to promote the predictable, uniform, and expert administration of federal law. (100) The other is called "diversity," and it seeks to "counteract prejudice on the part of state courts." (101) Both federal-question and diversity shape federal court power in fundamental ways. And both merit careful attention here, with federal-question first.
Federal-question jurisdiction is not as old as it may seem. Article III extends the federal "judicial Power" to "all Cases, in Law and Equity, arising under th[e] Constitution, the Laws of the United States, and Treaties," (102) but for decades this was a promise unfulfilled. Not until 1875 did Congress vest jurisdiction to hear federal questions in the federal district courts--and even then Congress only went so far. It gave federal courts less jurisdiction than Article III permitted, even as it mimicked that Article's more expansive terms. (103)
Today's federal-question statute does much the same. Like its post-1875 predecessor, 28 U.S.C. [section] 1331 echoes Article III, granting federal district courts jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." (104) But in interpretation and effect, [section] 1331 speaks of something narrower. It speaks of jurisdiction only over federal-law claims legitimately raised in a plaintiff's complaint, not in possible or even probable defenses. (105) This federal-question mandate has been called the "well-pleaded complaint" rule. And it admits few exceptions. State-law claims satisfy [section] 1331 only when their disposition "depends upon the construction or application" of an embedded question of federal law. (106)
Diversity jurisdiction holds no such exception. Instead, it expressly empowers federal courts to hear state-law questions, so long as another set of requirements is met.
Diversity jurisdiction is the older subject-matter sibling--by one measure, at least. Article III speaks of both federal-question and diversity jurisdiction, extending the "judicial Power" to "cases" involving federal questions and to "Controversies ... between Citizens of Different States." (107) But where federal-question sat dormant for decades, Congress made good on diversity's promise almost from the start. In the First Judiciary Act, passed in 1789, Congress gave inferior federal courts the authority to hear suits between citizens of different states, regardless of the claims made, so long as the "matter in dispute exceed[ed] ... five hundred dollars." (108) Since then, Congress has raised the "amount-in-controversy" figure sporadically, most recently in 1996. (109) Chief Justice Marshall has also added his own narrowing voice, reading Congress's diversity legislation to require "complete" diversity of "state citizenship" among opposing parties, not just the "minimal" diversity permitted by Article III. (110)
Today's diversity statute, 28 U.S.C. [section] 1332, bears both constraints. It invests federal courts with diversity jurisdiction only when the "amount-in-controversy" exceeds $75,000 and when all plaintiffs are diverse from all defendants at the moment the case enters federal court, not when the judgment is entered or the disputed event occurred. 111 Probate and domestic-relations matters are tacitly excluded, however unfairly. (112) And the term "state citizenship" takes on varied meanings. Individual litigants can hold one such "citizenship," determined by domicile, presence, and intent to remain. Corporations can hold two--one where they are incorporated, the other where headquartered. And partnerships and associations can hold many more--as many, in fact, as those held by their members.
These are not trivial matters. Nothing is more important, courts often remind, than their grave jurisdictional charge. Subject-matter jurisdiction is a "virtually unflagging obligation," (113) they say, not an irritation to be glibly ignored.
But this obligation is not detached from other doctrine. Some of its consequences are felt in supplemental jurisdiction, a statutory creation that expands subject-matter jurisdiction beyond preexisting limits. (114) Others are felt in federal-court "abstention," a common-law doctrine that "causes strange things to happen in federal courts." (115) Not all of these "strange things" please court critics, many of whom call for abstention to be abolished without more. (116) Nor do they bear the same motive or reflect a common analytical approach. One type of abstention focuses on avoiding constitutional issues and deferring to state-court interpretations of state law. (117) Two more attempt to limit disruptions of complex and politically sensitive state regulatory regimes. (118) One preserves the sanctity of pending state criminal and civil enforcement proceedings. 119 And still another defers to state courts in certain matters involving inconvenient federal fora, parallel litigation, and real property. 120 But how these abstention types vary is less important than where they converge: all permit (121) federal courts to refrain from exercising jurisdiction they otherwise hold. (122)
In this, abstention is much like forum non conveniens. Both proceed in high-sounding phrases and multi-factored analyses, allowing courts to invoke a malleable language of convenience, deference, and court competence. (123) Both purport to promote comity and federalism (124) without unduly infringing other structural concerns. Both respond to--and release courts from--the inflexible mandates jurisdiction claims to impose.
And both help frame some of the jurisdictional stories told below. These stories aim to fill in jurisdiction's abstract tests with authentic facts, showing both how those tests are used and how they might be better understood. But this turn to application should follow one final preliminary step, a step that connects jurisdiction's several pieces into a customary whole. Those connections are drawn (briefly) in Subpart C.
C. A Short Summary
So what does legal jurisdiction claim to look like, taken in full? What is all of this history, policy, and doctrine supposed to show?
It shows, to start, the sum of two halves. One half is personal jurisdiction, a concept focused on fairness to defendants and deference to sovereign territory. The other is subject-matter jurisdiction, a notion concerned with types of "cases and controversies." Each piece has its own smaller features and intricate tests. Personal jurisdiction splits into "general" and "specific" options--the first extending court power over all suits against a defendant, the second limiting that power only to particular claims. Subject-matter in turn divides along "federal-question" and "diversity" lines--the former looking for "well-pleaded" federal issues, the latter searching out claims with adequate amounts-in-controversy and citizens from different states.
Federal courts do not need to claim all of these pieces, at least not at any one time. They do not need both "general" and "specific" personal jurisdiction over a defendant. Nor do they need both "federal-question" and "diversity" subject-matter authority. But federal courts do need at least one piece from each side. Federal courts must possess, that is, both the authority to enter valid judgment against a particular defendant and the power to adjudicate a particular kind of dispute. Legal jurisdiction falls short otherwise.
Personal and subject-matter jurisdiction thus shape legal jurisdiction's most fundamental requirements. And they speak a language of "unflagging obligations" and "inflexible" duties as they do. By these terms, federal courts mechanically accept jurisdictional questions, automatically abide their fixed obligations, and "unthinkingly get[] the[] job done." (125)
But legal jurisdiction involves more than that. It involves intermittent deviations and occasional bends, as even this credulous review foreshadows. Some of those bends come in personal and subject-matter doctrine directly, as federal courts elide or ignore jurisdiction's hard rules. Others come in forum non conveniens and federal-court abstention, two common-law devices releasing courts from duties that jurisdiction would seem to impose. (126) But all of these bends suggest that jurisdiction's claims of inflexibility are inaccurate. So all hint that jurisdiction's standard story should be more skeptically retold. Part II offers a more critical retelling.
II. LEGAL JURISDICTION: AN UNCONVENTIONAL VIEW
There is much to like about jurisdiction's standard story. Its modern pieces seem compatible with constitutional text and jurisdictional history. Its firm lines seem to promote "absolute [jurisdictional] purity" (127) and to preempt costly and protracted jurisdictional "game[s]." (128)
But there is much to doubt about jurisdiction's standard story too. This Part attempts to detail and demonstrate those doubts. It searches out those places where jurisdiction's standard story proves overstated, misleading, and sometimes knowingly false. I am not the first to take this general tack. Others have spotted pockets of jurisdictional incoherence--and then often tried to close those pockets with fast-acting cures. (129) I do not seek that kind of solution. I hope instead to tell a more cautious jurisdictional story, one that looks carefully at the gaps between what courts often say about jurisdiction and what they sometimes do with its tools. Subpart A begins with a broad...
|
