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Jurisdiction and Merits

62 Pages Posted: 19 Aug 2005  

Howard Wasserman

Florida International University (FIU) - College of Law

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Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. 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. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and manner in which issues are adjudicated and resolved within the litigation process, as well as the positivist imperative of treating distinct legal conceptions in a distinct manner. This Article argues for 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's structural power and empowering the court to hear and resolve civil actions. All 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.

Keywords: Jurisdiction, Positivism, Procedure, Discrimination, Civil Rights, Antitrust

Suggested Citation

Wasserman, Howard, Jurisdiction and Merits. Washington Law Review, Vol. 80, p. 643, 2005. Available at SSRN:

Howard 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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