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Wednesday, June 10, 2009

Jurisdiction in the Court

While everyone has been talking about Monday's decision in Caperton, two other cases caught my eye, going as they do to my ongoing search for lines between subject matter jurisdiction and substantive merits.

The first was United States v. Denedo (Majority by Kennedy, Concurrence/Dissent by Roberts), in which the Court held that the authority of the Navy Marine Corps Court of Military Appeals to issue a writ of coram nobis was distinct from the question of whether the case was one in which the writ should issue. In other words, whether relief should be granted is distinct from whether the court has the authority to hear the case. At several points, in explaining why the NMCMA had jurisdiction, Justice Kennedy dismissed government arguments by insisting they went not to jurisdiction, but to the substantive question of whether the petitioner was entitled to a remedy. The Court did not discuss the distinctions or announce principles for separating them, but it was good to see it acknowledging they are different concerns and treating them as such.

The second was Republic of Iraq v. Beaty, which dealt with questions of the waiver of Iraq's sovereign immunity from suit under U.S. law in federal court. The Court treated immunity as a jurisdictional question and held that the withdrawal (after the fall of Saddam) of the waiver (for being a state-sponsor of terrorism) of Iraq's immunity deprived the district court of jurisdiction over claims by victims of torture under Saddam's regime. This is unfortunate, because I continue to believe that sovereign immunity is better understood as a substantive limitation than a jurisdictional one. The point of sovereign immunity is that a foreign nation is not subject to any duties under U.S. law (at least not through a private lawsuit) and injured individuals have no rights under U.S. law as against foreign sovereigns; Iraq cannot be liable under U.S. law for its conduct, regardless of where the claims are brought. Those are purely questions of substantive merits. I will continue to push this as a normative point in several upcoming articles (particularly as to religious organizations), but the argument just became harder to make descriptively.

Posted by Howard Wasserman on June 10, 2009 at 03:47 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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The Iraq case is something of an anomoly. The argument is essentially that the defendant has not been brought into court, and indeed, may be beyond being brought into court because the true defendant no longer exists.

It parallels the cases about the rights and obligations of the Confederate government, decedents whose probate estates have been closed and debtors discharged in bankruptcy more than a typical sovereign immunity case in which the defendant is alive, well and solvent.

Posted by: ohwilleke | Jun 11, 2009 12:32:20 PM

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