Washington Law Review


Federal court subject-matter jurisdiction rules incur a significant social cost—when jurisdiction is found lacking, courts must dismiss, no matter how many years and resources the parties have spent on the case. Indeed, hundreds of belated jurisdictional dismissals occur each year after parties have already engaged in discovery, dispositive motions, or even trial. Federal judges tolerate this waste largely because they view nonwaivable jurisdictional rules as a function of structural values rooted in the Constitution, rather than efficiency concerns. In contrast, scholars tend to focus primarily on efficiency arguments while discussing jurisdictional nonwaivability, de-emphasizing important structural interests. Both theories are overly monistic and fail to consider the full range of jurisdictional values. This Article advances two claims. First, jurisdictional values are pluralistic and multipolar, implicating structural and efficiency interests that are fundamentally incommensurable. We should not simply attempt to maximize a single set of jurisdictional values. And because there is no single unit of measurement for weighing structural values such as “separation of powers” against efficiency interests such as “litigation waste,” we should resist forcing these interests through a cost-benefit analysis. Instead, courts and rule makers should seek equilibrium among all relevant values when fashioning jurisdictional rules. Second, using this equilibration approach, the Article proposes a solution to jurisdiction’s social cost: Courts should resolve all subject-matter jurisdiction questions at the outset of litigation. Federal district courts should affirmatively certify the existence of jurisdiction in every case; after that point, objections to statutory federal jurisdiction would be waived. Moreover, to accommodate both structural and efficiency interests, appellate courts should have discretion to immediately review jurisdictional orders when the benefits of doing so outweigh the costs. Lastly, federal courts should use the threat of sanctions to deter private-party abuse of jurisdictional rules.

See also the response by Daniel Klerman, https://digitalcommons.law.uw.edu/wlro/vol89/iss1/1/">An Economic Analysis of Subject Matter Jurisdiction Waiver and Dustin Buehler's rejoinder, https://digitalcommons.law.uw.edu/wlro/vol90/iss1/1/">Revisiting Solving Jurisdiction's Social Cost.

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Jurisdiction Commons