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Jurisdiction and Merits

68 Pages Posted: 24 Mar 2005  

Howard M. Wasserman

Florida International University (FIU) - College of Law

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Date Written: March 1, 2005


Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner.

The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions. All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.

Keywords: Civil procedure, federal courts, jurisdiction, Title VII

Suggested Citation

Wasserman, Howard M., Jurisdiction and Merits (March 1, 2005). Available at SSRN: or

Howard M. 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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