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03/13/2020

Stephen Sachs: The Unlimited Jurisdiction of the Federal Courts
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted The Unlimited Jurisdiction of the Federal Courts (Virginia Law Review, forthcoming) (56 pages) on SSRN.  Here is the abstract:

Federal courts are courts of limited jurisdiction — but only in part. While a federal court’s subject-matter jurisdiction is limited by the Constitution, its personal and territorial jurisdiction is not. A federal court’s writ may run as far as Congress, within its enumerated powers, wants it to go.

This claim is quite contrary to current doctrine, which borrows jurisdictional limits on federal courts from a body of principles that’s thought to govern state courts. This borrowing not only bars recoveries by injured plaintiffs, such as American victims of foreign terrorist attacks, but has become a font of confusion for procedure scholars, giving rise to incisive recent critiques of the Federal Rules.

It’s also a mistake. The Fourteenth Amendment didn’t invent personal jurisdiction doctrine; it enabled federal enforcement of doctrines that already applied. Retroactively forcing the Fifth Amendment into the mold of the modern Fourteenth transforms what was supposed to be an expansion of federal power into a strict constraint on federal authority.

The territorial authority of federal courts depends, in the first instance, on the powers of Congress. It may be that Congress can authorize fully global jurisdiction over any suit permitted by Article III; or, if not, there may be ways for it to make better use of its jurisdictional powers at home. Either way, the existing mix of statutes and procedural rules appears to be fully valid. If the Constitution didn’t impose limits on Congress or on the federal courts, modern doctrine shouldn’t either.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!")