University of California Hastings College of the Law
April 4, 2011
California Law Review, Vol. 99, 2011
William & Mary Law School Research Paper No. 09-94
Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.
This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad forms. The result is a far more complex world than what the simple – but fallacious – dichotomy of jurisdictionality and nonjurisdictionality suggests.
Hybridization enables parties and courts to regulate federal jurisdiction in normatively desirable ways. Court control may re-establish power to inject considerations of fairness into jurisdictional issues. Party control may alleviate some of the costs of jurisdictionality. Further, hybridization can achieve these regulatory rewards while simultaneously retaining a healthy, formal distinction between jurisdictionality and nonjurisdictionality. The result is a cleaner, truer, and more useful conceptualization of jurisdiction.
Number of Pages in PDF File: 46
Keywords: bowles, jurisdiction, jurisdictionality, mandatory rules, mandatory, muchnick, 2107, finality, hybridization, hybrid, hybridizing, teague, sovereign immunity, precondition, mootness, incorporation, trigger, triggersAccepted Paper Series
Date posted: April 7, 2011 ; Last revised: November 12, 2012
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