The Demise of "Drive-by Jurisdictional Rulings"

INTRODUCTION In an October 2009 Term marked by several significant constitutional rulings,1 the Supreme Court quietly continued an important multi-Term effort towards better defining which legal rules properly should be called "jurisdictional." In each of four cases that considered the issue, the Court unanimously rejected a jurisdictional characterization of the challenged legal rule.2 The trend continued in the October 2010 Term, when the Court unanimously held that the time limit for filing an appeal to an Article I court is not jurisdictional.3 These cases continue an almost uninterrupted retreat from the Court's admittedly "profligate" and "less than meticulous" use of the word "jurisdiction" and a move towards "discipline" in the use of the term.4 The Court has rejected "drive-by jurisdictional rulings," in which a legal rule is labeled as jurisdictional only through "unrefined" analysis without rigorous consideration of the label's meaning or consequence.5 Jurisdiction essentially means "legitimate authority."6 Adjudicative jurisdiction refers to a court's constitutional and statutory authority (or power) to hear a class of cases and to consider and resolve the legal and factual issues raised.7 Adjudicative-jurisdictional rules contrast, and often are confused, with two other types of rules: (1) substantive-merits rules that control real-world conduct and function as rules of decision determining the validity and success of a plaintiff's claim for relief from a defendant over a particular transaction or occurrence8 and (2) procedural, or "claim-processing," rules, which determine how a court processes and adjudicates the claim for relief and how the parties and the court behave within the litigation process.9 The doctrinal move to identify jurisdiction, to create and maintain clear and determinate lines between jurisdictional and nonjurisdictional rules, and to end rampant confusion and overuse of the concept of jurisdiction is a welcome development for which I have argued for several years.10 This Essay examines and critiques the jurisdictionality rulings from the previous two Supreme Court Terms and offers some thoughts on how the Court might continue to develop sharp lines between distinct concepts and to eliminate, once and for all, drive-by jurisdictional rulings. I. JURISDICTION, MERITS, AND THE "REACH" OF FEDERAL LAW The sharpest distinction should be between jurisdiction and substantive merits-between rules defining a court's adjudicative authority and rules determining the validity and success of a substantive claim of right on its merits. I have argued previously that, particularly in typical federal statutory and constitutional claims, there should be no overlap between these concepts. Legislatures and courts must maintain sharp, clear, and clean lines between the issues; success or failure on the merits should not affect whether the court had authority to decide the case.11 In Morrison v. National Australia Bank, Justice Scalia, writing for a unanimous Court, appears to have drawn just such a sharp line.12 At issue was extraterritorial application of section 10(b) of the Securities Exchange Act to misconduct by foreign defendants that harmed foreign plaintiffs in securities transactions on foreign exchanges.13 Justice Scalia insisted that extraterritoriality was a merits question, properly resolved on a Rule 12(b)(6) motion, rather than a jurisdictional question resolved on a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, and the parties did not dispute that characterization. As he put it, "[T]o ask what conduct § 10(b) reaches is to ask what conduct § 10(b) prohibits, which is a merits question."14 The Morrison Court adopted Justice Scalia's reasoning from his 1993 dissent in Hartford Fire Insurance Co. v. California.15 Considering extraterritorial application of the Sherman Act, Justice Scalia had insisted that extraterritoriality has nothing to do with the district court's jurisdiction and everything to do with "whether, in enacting [the statute], Congress asserted regulatory power over the challenged conduct. …