Friday, February 29, 2008

Mandatory Rules

It's submission season, and we're trying to keep up with links to work that will interest our readers.  The following two pieces by Prof. Dodson fit that category and are accompanied by abstracts:

Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article I recently published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte. This jurisdictional rigidity has led courts and commentators to overlook the fact that nonjurisdictional rules need not be the mirror inverse but may instead have some of these attributes of jurisdictionality. A nonjurisdictional rule might, for example, be mandatory, meaning that it is subject to waiver or forfeiture, but if properly raised by the party for whose benefit it lies, it has the jurisdictional-like attribute of being immune to equitable exceptions. This Article is the first to take a hard look at nonjurisdictional rules and, particularly, mandatory rules. It first argues that they have an important normative role to play in our procedural system. It then shows that, in practice, mandatory but nonjurisdictional characterizations may help explain a number of perplexing doctrines. As an example, the Article demonstrates how such a characterization can help reconcile the otherwise maddeningly inconsistent doctrine of state sovereign immunity. Ultimately, the Article suggests that a greater appreciation for mandatory rules both can benefit the procedural system and can broaden our view of what salutary roles nonjurisdictional rules can play.

In Bowles v. Russell, the Court held that the statutory time limitation for filing a notice of appeal is jurisdictional. In a short essay published in Northwestern University Law Review's Colloquy, I critiqued that decision, suggested a better approach, and previewed some of the difficulties that the decision may cause for the future. Professors Perry Dane and Beth Burch and Mr. King Poor, Esq. responded. This short essay replies to their responses and develops additional reasons for characterizing the time to file a notice of appeal as mandatory but nonjurisdictional.


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