In an October 2009 Term marked by several significant constitutional rulings,' 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. 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. 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. 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.
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.
Howard M. Wasserman,
The Demise of “Drive-by Jurisdictional Rulings”
, 105 Nw. U. L. Rev. 947
Available at: http://ecollections.law.fiu.edu/faculty_publications/57