Jurisdiction as Dialogue

Abstract

Courts treat assertions of jurisdiction that carry into effect very different policies and powers alike. The attempt to exert power over the terrorist is treated the same as power over the non-resident motorist. However, all assertions of jurisdiction are not treated alike. Rather, they are treated very differently depending on how a legislature labels their doctrinal category. Courts will rigorously scrutinize assertions of in personam jurisdiction for compliance with the Constitution. If a legislature characterizes an assertion of jurisdiction as in rem, however, courts will give it a constitutional pass. For generations, the same was true of jurisdiction by consent. In the landmark decision Shaffer v. Heitner, the U.S. Supreme Court shifted the category of quasi-in-rem jurisdiction from the no-scrutiny box to the full-scrutiny box.

This peculiar way of calibrating constitutional scrutiny leads to creative drafting by legislatures, particularly in the wake of the U.S. Supreme Court’s constriction of personal jurisdiction in Daimler v. Bauman, Walden v. Fiore, and other cases limiting in personam jurisdiction. Last October, the President signed into law the Anti-Terrorism Clarification Act, which purports to restore jurisdiction to hear claims under the Anti-Terrorism Act, but under the heading of consent, rather than personal, jurisdiction.

This repackaging of jurisdictional power is not costless, but neither is it entirely wasteful. In fact, it illustrates that the jurisdictional power of U.S. courts is built on inter-branch dialogue. This dialogue is couched in formalist distinctions between doctrinal categories of jurisdiction, and these formalisms can push the judicial analysis further from underlying values that should inform the debate. Nevertheless, this jurisdictional dialogue has value. This dialogue leads elected officials to tailor assertions of jurisdiction, to communicate necessary information to courts, and to assist courts in distinguishing among the legislature’s constitutional powers.

Keywords: jurisdiction, separation of powers, constitutional law, transnational law, civil procedure