Jurisdictional Procedure

Scholars have lavished attention on the substance of jurisdictional doctrines such as standing, mootness, diversity, and federal question. They have left largely unexamined, however, the procedures courts use to address these doctrines; collectively, I refer to these procedures as “jurisdictional procedure.” A paramount feature of jurisdictional procedure is the unique and virtually unqualified obligation federal courts possess to identify and decide issues of subject matter jurisdiction even if the parties and lower courts overlook these issues. Courts have reached no consensus about how to identify the facts necessary to effectuate this obligation. The confluence of court-initiated legal inquiry and unpredictable factual investigation has profound consequences for the administration of justice. The courts’ duty to inquire into jurisdiction departs dramatically from the adversarial norms that dominate the American legal system. This departure, however, is necessary to preserve separation of powers. As judicial review and judicial supremacy have gained acceptance, courts have transcended the system of checks and balances through which the Constitution seeks to constrain federal power. In the absence of external checks on judicial authority, self applied jurisdictional limitations, effectuated through an inquisitorial procedure nested within our adversarial system, fill a crucial role. In inquiring into jurisdiction, courts often require parties to have developed the facts related to jurisdiction in the district court, even if the jurisdictional issue was not identified during that stage of the litigation. This marriage of traditional adversarial rules allocating responsibility to parties and the largely inquisitorial duty of courts to inquire into jurisdiction creates several problems. First, plaintiffs unfairly have their cases dismissed without the opportunity to provide facts related to newly arising jurisdictional concerns. Second, judicial resources go to waste because in some circumstances plaintiffs can file new claims that will require entirely new judicial proceedings. Third, courts inaccurately dismiss cases in circumstances in which jurisdiction would plainly exist if the court considered a completed factual record. Courts can remain true to separation of powers principles while avoiding the pitfalls that often arise out of current jurisdictional procedure. To do so, they should investigate the facts necessary to correctly assess their jurisdiction. A duty to investigate jurisdictional facts would enable courts to balance their obligations to act when they have jurisdiction and to dismiss when they do not. It would more fully vindicate separation of powers. And, ultimately, it would create a fairer, more efficient, and more accurate legal process