Solving Jurisdiction's Social Cost

INTRODUCTIONIn recent years, the Supreme Court has reminded us that federal court subject-matter jurisdiction is both inflexible and unforgiving.1 It has stressed that the parties cannot consent to or waive jurisdictional requirements,2 and that federal courts have an obligation to raise jurisdictional defects, on their own initiative if necessary.* 3 The Court also has emphasized that litigants can raise jurisdictional defects at any time, even for the first time on appeal.4 And once again, we have witnessed the harsh effect of latent jurisdictional defects: The court must dismiss the suit, forcing the parties to start over, no matter how many years and resources they have spent on litigation up to that point.5The social waste generated by jurisdictional nonwaivability6 is real and alarming. Federal courts conduct a belated jurisdictional inquiry in approximately five hundred cases each year,7 analyzing subject-matter jurisdiction for the first time months or years after the close of the pleadings,8 and sometimes only after the case is on appeal.9 Courts dismiss about forty percent of these cases, wasting resources the parties have already spent on discovery, dispositive motions, and sometimes even on trial.10 Given the exorbitant cost of modem litigation-it is not unusual for litigants to spend hundreds of thousands of dollars on discovery and merits litigation11-the social cost of belated jurisdictional dismissals is intolerable.Federal courts tolerate this waste, however, largely because they view jurisdictional nonwaivability as a function of immutable structural values rooted in the Constitution. When judges dismiss cases on jurisdictional grounds, they reference federalism and separation-of- powers interests,12 casting themselves as impartial enforcers of jurisdictional boundaries drawn by Congress.13 In doing so, they de- emphasize non-structural considerations, such as efficiency and economic waste. Indeed, some courts have stated that these non- structural considerations are entirely irrelevant to jurisdictional analysis.14Several scholars have criticized this overreliance on structural interests, basing their arguments primarily on efficiency values.15 They point to the significant social waste resulting from belated jurisdictional dismissals,16 as well as the tendency for litigants to strategically contest jurisdiction in ways that exacerbate this waste (i.e., when a party raises a jurisdictional defect for the first time after losing on the merits, in order to void the adverse judgment).17 While bringing much-needed attention to jurisdiction's social cost, many of these scholars unfortunately have been either indifferent or overtly hostile to the important structural interests underlying nonwaivable jurisdictional rules.18In this respect, courts and commentators are talking past one another when it comes to federal jurisdiction. Remarkably, they increasingly resort to discordant, monistic theories of jurisdictional value, which fail to consider the full range of interests implicated by jurisdictional rules.19 This is further complicated by the fact that the two sides are talking about values that are fundamentally incommensurable-there is no single unit of measurement that we can use to weigh structural values such as "separation of powers" against efficiency interests such as "litigation waste."20 Indeed, perhaps the most surprising aspect of the debate on jurisdictional nonwaivability is that it is not a debate at all.I aim to provoke a real debate on jurisdictional nonwaivability by advancing two primary claims. First, I argue that jurisdictional values are inherently pluralistic and multipolar, and that courts and rule makers should seek equilibrium among values when making jurisdictional rules. In practice, nonwaivable jurisdictional rules are pluralistic because they implicate both structural and efficiency values-interests that are fundamentally incommensurable. Courts and rule makers should not simply attempt to maximize a single set of jurisdictional values, nor should they force incommensurable structural and efficiency interests through a cost-benefit analysis. …