This Article explains these fundamental differences and argues that courts, commentators, and legal rule makers must recognize and respect those differences. The Article proceeds in three steps. First, the Article explains how rights might come to be non-extant-to not exist as law. This concept is founded on Wesley Hohfeld's famous model of legal relations, with a particular focus on legal rules establishing rights, imposing duties, and establishing or maintaining liberties. Second, the Article discusses eight illustrations of non-extant rights, showing how rights are created and eliminated, and the effect on civil actions brought to enforce those rights. Third, the Article examines and explains the fundamental distinctions between legal rules that strip judicial subject matter jurisdiction, and legal rules that produce non-extant rights.
Howard M. Wasserman,
Jurisdiction, Merits, and Non-Extant Rights
, 56 Kan. L. Rev. 227
Available at: http://ecollections.law.fiu.edu/faculty_publications/63