The Supreme Court has begun to grapple with the
problems presented by the doctrine of jurisdictional
sequencing-the decision of certain issues, and even the
dismissal of cases, before a federal court has verified its
subject matter jurisdiction. Recent jurisprudence has
created confusion as to what, if anything, a federal court
may do before it verifies subject matter jurisdiction.
Moreover, scholars and courts have struggled to discern
an underlying rationale for jurisdictional sequencing, and
no theory has been able to explain the case law fully or
offer a satisfying normative defense of the doctrine.
This Article develops a theory of jurisdictional
sequencing that is the first to accomplish both tasks.
Unlike earlier scholarship, it explores jurisdictional
sequencing by addressing the underlying question of what
precisely subject matter jurisdiction protects. The Article
argues that subject matter jurisdiction is a surprisingly
narrow structural constraint on federal courts' power.
Consequently, a federal court must have jurisdiction in
order to adjudicate a conduct rule governing substantive
rights. By contrast, subject matter jurisdiction is not
absolutely necessary when a court decides a rule that
merely allocates decision-making authority. The theory
advanced here explains the case law and also grounds
jurisdictional sequencing in a novel vision of subject
matter jurisdiction that dovetails with scholarly and
doctrinal developments in other areas of the law.
Trammell, Alan M.
Georgia Law Review: Vol. 47:
4, Article 3.
Available at: https://digitalcommons.law.uga.edu/glr/vol47/iss4/3