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Jurisdiction, Merits, and Non-Extant Rights

45 Pages Posted: 28 Mar 2007 Last revised: 11 Nov 2007

Howard M. Wasserman

Florida International University (FIU) - College of Law

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Date Written: March 28, 2007


The debate about the constitutionality and wisdom of Congress stripping federal courts of jurisdiction is as old as the Union. And it shows no sign of slowing, in light of recent efforts (successful and unsuccessful) to deprive federal courts of power to adjudicate controversial federal constitutional claims of right. But discussions of jurisdiction too-often conflate a different situation that constricts the power and influence of federal courts: What happens when substantive rights do not exist as law; that is, where no existing legal rule establishes real-world rights or imposes real-world duties to be judicially enforced and vindicated.

Under Wesley Hohfeld's model of legal relations, positive legal rules may create rights, duties, and liberties. A legal rule creates a right (or claim-right) when it entitles A to be treated or not treated in some way by B, while imposing a correlative duty on B to treat or not treat A in that way. A legal rule establishes a liberty when it entitles A to act or not act, as she chooses, free from government constraint. Non-existence as law derives from Matthew Adler and Michael Dorf's conception of existence conditions, requirements that must be satisfied in order for a purported legal rule to exist as law; when such conditions are not satisfied, the legal rule (and the substantive rights and duties that the legal rule would create) may be said to be non-extant. The focus of this paper is what happens when the legal rule establishing enforceable rights or liberties and imposing duties does not exist as law.

At some level, limits on substantive rights have loosely but realistically been equated with limits on jurisdiction, because all impose access-limiting or door-closing rules, depriving federal courts of the opportunity to perform their central role of protecting individual rights. The similarity appears if we focus exclusively on the federal docket. Eliminating jurisdiction and eliminating substantive rights both mean a party seeking federal judicial vindication of a right will lose on her claim.

But those similarities disappear when focus shifts away from the docket to four distinct points; meaningful facial, practical, and procedural distinctions emerge that must be recognized and respected. The differences focus on: 1) The effect that the existence or non-existence of rights has on real-world actors and conduct, how individuals behave in their primary conduct in light of narrower legal rights, liberties, and duties; 2) The effect on the litigation process, on where claims will be brought and how claims will be resolved under the new legal rules; 3) The effect on the process of establishing legal rules, on which rule makers for which sovereigns can and will establish right-creating legal norms; and 4) The structural and constitutional legitimacy of the legal rules and legal rule making that produce stripped jurisdiction on one hand, as opposed to diminished or non-extant rights on the other. These differences demand that courts and commentators avoid using the loaded phrase jurisdiction stripping loosely or inaccurately.

This paper proceeds in three steps. It first defines the concept of non-extant rights, with a particular focus on Hohfeld's model of legal relations and how we should understand the effect of substantive legal rules. The paper next provides eight illustrations of constitutional, statutory, and common law rights that can be said to not exist as law and the effect on efforts to enforce such rights in court. Finally, the paper examines the four key distinctions between legal rules that strip jurisdiction and those that result in non-extant substantive rights, explaining why the concepts must remain distinct in our discussions and analysis of legal rules.

This paper is the third in a series attempting to disentangle the substantive merits of federal law and subject matter jurisdiction. The first appeared in WASHINGTON LAW REVIEW in 2005; the second is forthcoming in the 2006 Supreme Court Review of TULSA LAW REVIEW.

Keywords: Jurisdiction, Courts, Procedure, Rights, Liberties

Suggested Citation

Wasserman, Howard M., Jurisdiction, Merits, and Non-Extant Rights (March 28, 2007). Florida International University Legal Studies Research Paper No. 07-01. Available at SSRN: or

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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