Hybridizing Jurisdiction

46 Pages Posted: 7 Apr 2011 Last revised: 12 Nov 2012

Date Written: April 4, 2011


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.

Keywords: bowles, jurisdiction, jurisdictionality, mandatory rules, mandatory, muchnick, 2107, finality, hybridization, hybrid, hybridizing, teague, sovereign immunity, precondition, mootness, incorporation, trigger, triggers

Suggested Citation

Dodson, Scott, Hybridizing Jurisdiction (April 4, 2011). California Law Review, Vol. 99, 2011, William & Mary Law School Research Paper No. 09-94, Available at SSRN: https://ssrn.com/abstract=1802732

Scott Dodson (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

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