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Jurisdiction, Merits, and Non-Extant Rights

50 Pages Posted: 17 Dec 2008 Last revised: 13 Feb 2009

Howard Wasserman

Florida International University (FIU) - College of Law

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Date Written: December 16, 2008


The debate about the constitutionality and wisdom of Congress stripping federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes, in the Hohfeldian sense, real-world rights or imposes real-world duties to be judicially enforced and vindicated. The focus of this paper is what happens in the wide range of situations in which the legal rule establishing enforceable rights or liberties and imposing duties and obligations does not exist as enforceable positive law.

At some level, limits on substantive rights have loosely but realistically been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase jurisdiction stripping loosely or inaccurately.

Suggested Citation

Wasserman, Howard, Jurisdiction, Merits, and Non-Extant Rights (December 16, 2008). Kansas Law Review, Vol. 56, No. 227, 2008; Florida International University Legal Studies Research Paper No. 08-08. Available at SSRN:

Howard Wasserman (Contact Author)

Florida International University (FIU) - College of Law ( email )

University Park, DB 2065
Miami, FL 33199
United States
305-348-7482 (Phone)

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