Friday, January 28, 2011
Professor Howard Wasserman (Florida International) has posted on SSRN his essay, The Demise of ‘Drive-By Jurisdictional Rulings’, 105 Northwestern University Law Review Colloquy 184 (2011). Here's the abstract:
This essay analyzes and comments on four decisions from the Supreme Court’s October 2009 Term considering the line and divide between jurisdictional and non-jurisdictional issues. of particular note are Reed Elsevier, Inc. v. Mushkin and Morrison v. Nat’l Australia Bank. In these and the other two cases, the Court unanimously rejected a jurisdictional characterization of the challenged legal rule, concluding that the rule either went to the substantive merits of the plaintiff’s claim of right or to ordinary procedure, without limiting the court’s root structural adjudicative authority. These are the latest cases in the justices’ consistent recent effort to eliminate “drive-by jurisdictional rulings,” in which a legal rule is labeled as jurisdictional only through “unrefined” analysis and without rigorous consideration of the label’s meaning or consequence. These four cases illustrate the Court continued, and welcome, retreat from its admitted “profligate” and “less than meticulous” use of the term. Instead, the Court has sought to define and maintain sharp and clean lines between judicial subject-matter jurisdiction and other, non-jurisdictional issues.