Jurisdiction and Definitional Law

Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a rejoinder to my critique. In it, he argued the meaning of the word “jurisdiction” is “definitional law” that binds Congress just as other words with “settled” meanings bind Congress. In this brief response to his argument, I articulate our key area of disagreement and explain why I continue to believe his view is wrong

Jurisdiction and Definitional Law

Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a rejoinder to my critique. In it, he argued the meaning of the word “jurisdiction” is “definitional law” that binds Congress just as other words with “settled” meanings bind Congress. In this brief response to his argument, I articulate our key area of disagreement and explain why I continue to believe his view is wrong

The Competing Approaches to the Foreign Trade Antitrust Improvements Act: A Fundamental Disagreement

This Comment explores the history and reasoning behind a recent reexamination of the FTAIA in light of Arbaugh v. Y & H Corp., examines both the propriety and the implications of the competing interpretations of the FTAIA, and argues that the resolution of the competing approaches is beyond the purview of the lower courts. Part II provides an overview of the extraterritorial reach of the Sherman Act leading up to the FTAIA, as well as the judicial treatment of the FTAIA prior to Arbaugh. Part III discusses the impact of Arbaugh and subsequent Supreme Court cases applying the “clearly states” test on the jurisdictional characterization of the FTAIA, ultimately leading to a circuit split. Part IV applies the “clearly states” test to the FTAIA and looks at the factors that weigh in favor of and against a jurisdictional interpretation of the FTAIA. Part V explores the consequences of the competing approaches and contends that the lower courts should not decide the jurisdiction issue because the Supreme Court and Congress possibly differ in their approaches to the extraterritorial reach of American law—rather, the Supreme Court should address the issue and Congress, either by silence or legislative reaction, should settle the issue. Part VI concludes

The Supreme Court\u27s Quiet Revolution: Redefining the Meaning of Jurisdiction

Over the last three decades, the Rehnquist and Roberts Courts have carried out a quiet revolution in the nature and meaning of jurisdiction. Historically, federal courts generally treated procedural requirements, like filing deadlines and exhaustion prerequisites, as presumptively jurisdictional. In case after case, the modern Court has reversed course. The result has been an unobtrusive but seminal redefinition of what jurisdiction means to begin with: the adjudicatory authority of the federal courts. This shift is momentous, but it has been obscured by the Court\u27s erstwhile imposition of a clear statement requirement. For courts to find a statutory requirement jurisdictional, Congress must have clearly said so. Scholars have applauded this new interpretive technique, yet even though the Court\u27s more precise definition of jurisdiction is a welcome development, the Court\u27s emphasis on the clear statement rule is a mistake. To begin, the Supreme Court\u27s application of its clear statement rule is inconsistent. As a result, the Court\u27s decisions are unpredictable, and Congress is left to guess how clear a clear statement must be. Second, the rule may not clarify dialogue between the courts and Congress because the Court has imposed it retroactively. Third, the Court has not tied its command to the protection of an important constitutional value, and there is a strong argument to be made that the rule unconstitutionally augments the Court\u27s authority at the expense of Congress\u27s unquestioned power over the scope of Article III jurisdiction. Ultimately, the Court\u27s turn to a clear statement rule is unnecessary. A close analysis of the Supreme Court\u27s recent cases reveals it is the Court\u27s quiet redefinition of jurisdiction that has been doing the work. The Court is right to demand precision as to jurisdiction. But the clear statement rule is a problematic and unnecessary attempt to carry that mandate into effect. This Article argues that the Court should jettison its clear statement requirement and focus on what it really wants to ask, and should have been asking all along: Did Congress intend this provision to oust the federal courts of their power to adjudicate this case