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Wednesday, August 24, 2011

Conflating concepts in the jurisdictionality/merits divide

Yesterday, I discussed a recent Third Circuit case holding that the limits on extraterritoriality in the antitrust laws imposed by the FTAIA went to the merits and not jurisdiction. The court reached the right conclusion, but it made what I believe is a significant analytical misstep that I want to explore.

In various articles, I have laid out two distinctions that are, in my view, central to disentangling merits and jurisdiction. The first is between "legislative" (or "prescriptive") jurisdiction, which is the authority of the legislature to establish legal rules, and "judicial" (or "adjudicative") jurisdiction, which is the authority of a court to hear and resolve the legal and factual issues in case. The second is between Congress' "substantive" (or Article I) lawmaking powers, meaning the power to enact legal rules regulating primary or real-world conduct and to set forth the elements of a successful claim for relief, and its "structural" (or Article III) lawmaking powers, meaning its authority to enatc legal rules setting the jurisdictional and procedural rules for federal courts.

In its FTAIA decision, the Third Circuit seems to have conflated those concepts. The Court defines legislative jurisdiction by reference to substantive lawmking power and judicial jurisdiction by reference to structural lawmaking power. In other words, Congress exercises legislative jurisdiction when it enacts substantive rules and judicial jurisdiction when it enacts jurisdictional rules.

But that seems wrong to me. Whenever Congress enacts legal rules, it is exercising legislative jurisdiction--its constitutional authority to establish prospective rules via the legislative process. That is true whether those rules are substantive (merits) or structural (jurisdiction). Judicial jurisdiction is exercised by courts, not by Congress. The difference is not judicial v. legislative, but what type of legislative authority and the source of that legislative authority. Judicial grants come when Congress exercises legislative (prescriptive) authority to control the structure and jurisdiction of the federal courts. Substantive law comes when Congress exercises legislative (prescriptive) authority to regulate real-world conduct.

Now, this conflation points to some interesting connections among the concepts that I had not previously thought about. Most notably, judicial jurisdiction turns on legislative jurisdiction. A court has adjudicative authority in an individual case only if Congress exercised its legislative authority to grant the court jurisdiction over that class of cases and if Congress actually had the authority (under Article III) to make that grant. So if a court lacks subject matter jurisdiction in a case because the statutory grant of jurisdiction is invalid (see, e.g., Marbury v. Madison), we can say that we have both a failure of judicial jurisdiction (the court cannot hear the case) and of legislative jurisdiction (Congress lacked the power to allow the court to hear that class of cases). Unfortunately, this muddies the line between adjudicative/judicial jurisdiction and prescriptive/legislative jurisdiction, because something can reflect a failure of both types of jurisdiction. Instead, we have to take a closer look at the precise power Congress exercised in a given statue and what the statute was trying to do.

So how does this play into the FTAIA? This is where Scalia's approach to merits in Morrison works well--the FTAIA controls the "reach" of the antitrust laws, that is, what conduct (and by whom) the antitrust laws prohibit. The same goes for the ministerial exemption to employment-discrimination laws--the First Amendment limits the "reach" of these laws, what conduct those laws prohibit. They are both questions of the scope and amount of real-world conduct Congress has chosen to regulate (or can regulate) in the exericse of its substantive powers over certain real-world conduct. That is, exercises of legislative jurisdiction--the only question is which particularly jurisdiction/authority.

Posted by Howard Wasserman on August 24, 2011 at 09:15 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink

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