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Jurisdictional Procedure

81 Pages Posted: 26 Jun 2011 Last revised: 26 Mar 2013

Justin R. Pidot

University of Denver Sturm College of Law

Date Written: January 22, 2012


Scholars have lavished attention on the substance of doctrines of jurisdiction such as standing, mootness, diversity, and federal question. They have left largely unexamined, however, the procedures courts use to address these doctrines; collectively, I refer to these procedures as “jurisdictional procedure.” Jurisdictional procedure is unique because federal courts possess an unqualified obligation to identify and decide issues of subject matter jurisdiction even if these issues are overlooked by the parties and lower courts. Courts have reached no consensus about how to identify the facts necessary to effectuate this obligation. The confluence of court-initiated legal inquiry and unpredictable factual investigation has profound consequences for the administration of justice.

The courts’ duty to inquire into jurisdiction departs dramatically from the adversarial norms that dominate the American legal system. But this departure is necessary to preserve separation of powers. As judicial review and judicial supremacy have gained acceptance, courts have transcended the system of checks and balances through which the Constitution seeks to constrain federal power. In the absence of external checks on judicial authority, self-applied jurisdictional limitations, effectuated through an inquisitorial procedure nested within our adversarial system, fill a crucial role.

In inquiring into jurisdiction, courts often require parties to have developed the facts related to jurisdiction in the district court, even if the jurisdictional issue was not identified during that stage of the litigation. This marriage of traditional adversarial rules allocating responsibility to parties and the largely inquisitorial duty of courts to inquire into jurisdiction creates several problems. First, plaintiffs unfairly have their cases dismissed without the opportunity to provide facts related to newly arising jurisdictional concerns. Second, judicial resources go to waste because in some circumstances plaintiffs can file new claims that will require entirely new judicial proceedings. And third, courts inaccurately dismiss cases in circumstances where jurisdiction would plainly exist if the court considered a completed factual record.

Courts can remain true to separation of powers principles while avoiding the pitfalls that often arise out of current jurisdictional procedure. To do so, they should investigate the facts necessary to correctly assess their jurisdiction. A duty to investigate jurisdictional facts would enable courts to balance their obligations to act where they have jurisdiction and dismiss where they do not. It would more fully vindicate separation of powers. And, ultimately, it would create a fairer, more efficient, and more accurate legal process.

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

Suggested Citation

Pidot, Justin R., Jurisdictional Procedure (January 22, 2012). 54 William & Mary Law Review 1 (2012). Available at SSRN: or

Justin R. Pidot (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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