Jurisdictional Sequencing

Alan M. Trammell

Columbia Law School

August 13, 2013

47 Ga. L. Rev. 1099 (2013)
Brooklyn Law School, Legal Studies Paper No. 353

This Article offers a critical re-assessment of subject matter jurisdiction, arguably the most fundamental constraint on federal courts. The project examines the nature and purposes of subject matter jurisdiction through the lens of jurisdictional sequencing, a practice that allows a federal court to decide certain issues — and even dismiss cases — before it has verified subject matter jurisdiction.

Despite many scholars’ antipathy toward jurisdictional sequencing, it is a legitimate practice that reveals a nuanced understanding of jurisdiction’s unique structural role in protecting federalism and separation of powers. Specifically, elected institutions have principal responsibility for crafting conduct rules that regulate people’s primary activities. Federal courts may interpret and apply conduct rules — and thus in a meaningful sense “make law” — only when they have verified their subject matter jurisdiction. By contrast, federal adjudication does not implicate the structural concerns at the heart of subject matter jurisdiction when courts dismiss cases based on other rules (what I term allocative rules). Re-imagining the precise role of subject matter jurisdiction reveals how federal courts can decide cases more efficiently and also respect essential constraints on the allocation of powers.

Number of Pages in PDF File: 63

Keywords: civil procedure, federal courts, jurisdiction, federalism, separation of powers

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Date posted: August 14, 2013 ; Last revised: August 15, 2013

Suggested Citation

Trammell, Alan M., Jurisdictional Sequencing (August 13, 2013). 47 Ga. L. Rev. 1099 (2013); Brooklyn Law School, Legal Studies Paper No. 353. Available at SSRN: https://ssrn.com/abstract=2309500

Contact Information

Alan M. Trammell (Contact Author)
Columbia Law School ( email )
435 W. 116th Street
New York, NY 10027
United States

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