Wednesday, May 11, 2011
Professor Scott Dodson (William & Mary) has posted on SSRN a draft of his article Hybridizing Jurisdiction, which is forthcoming in the California Law Review. Here’s the abstract:
Federal jurisdiction – the “power” of the court – is seen as something separate and unique. As such, it has a litany of special effects that define jurisdictionality as the antipode of nonjurisdictionality. The resulting conceptualization is that jurisdictionality and nonjurisdictionality occupy mutually exclusive theoretical and doctrinal space. In a recent Article in Stanford Law Review, I refuted this rigid dichotomy of jurisdictionality and nonjurisdictionality by explaining that nonjurisdictional rules can be “hybridized” with any – or even all – of the attributes of jurisdictionality.
This Article drops the other shoe. Jurisdictional rules can be hybridized, too, and in myriad forms. The result is a far more complex world than what the simple – but fallacious – dichotomy of jurisdictionality and nonjurisdictionality suggests.
Hybridization enables parties and courts to regulate federal jurisdiction in normatively desirable ways. Court control may re-establish power to inject considerations of fairness into jurisdictional issues. Party control may alleviate some of the costs of jurisdictionality. Further, hybridization can achieve these regulatory rewards while simultaneously retaining a healthy, formal distinction between jurisdictionality and nonjurisdictionality. The result is a cleaner, truer, and more useful conceptualization of jurisdiction.