Saturday, June 25, 2011

Commentary: Jurisdictionality and Stern v. Marshall

From Professor Scott Dodson (William & Mary) comes the following commentary on this week’s Supreme Court decision in Stern v. Marshall:

Stern v. Marshall is notable for a number of reasons, not all of which are related to the law.  As for the law, I suspect that the opinion will be read mostly for the holding (and the dissent to it) of the scope of Article III’s “judicial power.”  But there’s a unanimous holding of interest to folks (like me) who watch the Court’s growing awareness of the nuances of jurisdictionality.  The labels “jurisdictional” and “nonjurisdictional” are less than they purport to be.  They purport to be dichotomous opposites, describing mutually exclusive sets of effects.  And the Court has largely bought into the dichotomy, characterizing something as jurisdictional and therefore has all the effects of jurisdictionality (as in the maligned opinion Bowles v. Russell), or that something is nonjurisdictional and therefore has none of the effects of jurisdictionality (as in Henderson v. Shinseki).  But, as I have argued elsewhere, that dichotomy is false—nonjurisdictional rules can have jurisdictional effects.  Thus, characterizing a requirement “nonjurisdictional” says very little about its effects, and those effects (waivability, forfeitability, consentability, susceptibility to equitable discretion, etc.) are usually the key issues at stake in the dispute.

In a short section in Stern, the Court appeared to move closer to my position, indicating that perhaps the Court is starting to think more carefully about these nuances.  At issue in Stern was whether Sec. 157(b)(5) of the Bankruptcy Code was jurisdictional such that it could not be forfeited.  The Court concluded that the provision was not jurisdictional (see pages 12-14 of the slip opinion).  I think the Court was correct on this question, though its analysis did not consider certain factors that I think important to the inquiry and that I have spelled out in detail elsewhere.  The Court then made an interesting move.  Ever so briefly, it then considered whether the nonjurisdictional rule was forfeitable (see pages 15-16).  Although I wouldn’t characterize the Court’s analysis here as thorough, I do think the Court was correct to engage in it.  And the Court’s willingness to do so suggests that the Court recognizes that a nonjurisdictional rule could be nonforfeitable.  It’s hard to tell how deeply the Court is thinking about these issues (particularly because the Court ultimately found Sec. 157(b)(5) to be forfeitable and thus to have no jurisdictional effects), but I call it a step in the right direction toward recognizing that the labels “jurisdictional” and “nonjurisdictional” are often unhelpful and misleading.

As an aside, the case did not have occasion to consider the converse issue of how jurisdictional rules can hybridize with nonjurisdictional effects.

--Scott Dodson

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