The Dubious Concept of Jurisdiction
Evan Tsen Lee
University of California Hastings College of the Law
Hastings Law Journal, Vol. 54, pp. 1613-1640, August 2003
The conventional wisdom about jurisdiction is based on a false premise - that the true concept of jurisidiction is distinct from the true concept of the merits. According to this wisdom, if a judge is smart enough and searches hard enough, he or she can always distinguish issues that are jurisdictional from issues that go only to the merits. By the same token, this wisdom holds that every legal issue is either jurisdictional or non-jurisdictional. This paper argues that the conventional wisdom is wrong - that there can be no hard conceptual difference between jurisdiction and the merits. The line between jurisdictional issues and merits issues is always at some level arbitrary. Furthermore, the conventional wisdom is dangerous because it indoctrinates judges to think that the only issue is whether they can exercise their ability to do justice rather than whether they should exercise that ability.
Number of Pages in PDF File: 28
Date posted: February 29, 2004
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