The Invisibility of Jurisdictional Procedure and Its Consequences

Abstract:     
Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdictional generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of jurisdictional procedure, offers an explanation for its invisibility, and identifies the consequences of that neglect.

Number of Pages in PDF File: 16

Keywords: federal courts, federal jurisdiction, standing, ripeness, mootness, subject matter jurisdiction, environment, public interest, climate change, adversarial system, inquisitorial system

Accepted Paper Series