Washington Law Review Online

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My recent article https://digitalcommons.law.uw.edu/wlr/vol89/iss3/2/">Solving Jurisdiction’s Social Cost examines issues implicated by nonwaivable federal court subject-matter jurisdiction. I argue that courts and commentators are prone to monistic theories of jurisdictional value, failing to consider the full range of interests implicated by jurisdictional rules. I then catalogue the various interests arising from jurisdictional rules. Lastly, I advance several solutions, including early jurisdictional certification orders, a cut-off point for jurisdictional challenges, interlocutory appeals of jurisdictional rulings, and sanctions to deter private-party abuse. Daniel Klerman’s response to my article is articulate, well-reasoned, and persuasive. Among other contentions, he suggests that mandatory jurisdictional certification by district courts may incur greater costs than those associated with nonwaivable jurisdictional rules. Professor Klerman challenges the notion that the efficiency and structural interests underlying jurisdictional rules are incommensurable. And he outlines a novel alternative approach in which federal courts could call for the views of state attorneys general when appropriate to identify and protect federalism concerns and state prerogatives.

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Jurisdiction Commons