Appreciating Mandatory Rules: A Reply to Critics

By Scott Dodson[*]

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It seems that few are pleased with the Court’s recent decision in Bowles v. Russell, in which the Court held the time limit for filing a notice of appeal to be jurisdictional and therefore not susceptible to the unique circumstances doctrine.[1]  As I wrote in my original Essay, I believe the Court disrupted prior precedent and missed a golden opportunity to develop, in a principled way, a framework for characterizing rules as jurisdictional or not[2] and I adhere to those views.

Three have responded to my Essay. Professor Perry Dane criticizes Bowles for failing to appreciate that jurisdictional rules—assuming the deadline to file a notice of appeal is in fact jurisdictional—need not lead inexorably to a rigid application.[3]  Mr. E. King Poor, Esq., defends Bowles as rightly decided and also as a good result.[4]  And, Professor Beth Burch criticizes Bowles for some of the same reasons I do, but she goes further to suggest that the Court (and I) failed to give sufficient recognition to the equity appeal of the case.[5]  It is appropriate for me to provide a brief reply to those who have joined me in this debate.

I.  A Reply to Professor Dane

I am sympathetic to Professor Dane’s argument that a jurisdictional rule need not necessarily be applied rigidly.[6]  I would go further, however, and explore—in a very preliminary way—three different strands that, while not necessarily entirely distinct from each other, capture different aspects of the role flexibility may play in jurisdictionality.

Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy

By Howard M. Wasserman[*]

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In his outstanding article, In Search of Removal Jurisdiction,[1]  Professor Scott Dodson delineates the appropriate boundaries between rules of subject matter jurisdiction and rules of judicial procedure in the context of removal time limits, and argues that we must develop a “broader understanding of the interrelationship and boundaries among the trichotomy of jurisdiction, procedure, and merits.”[2]  He also suggests that the strands of each pair in the triangle interact in distinct ways and require distinct rules for separating one from the other.[3]  Having sought in recent work to define, clearly and cleanly, boundaries between subject matter jurisdiction and the substantive merits of federal claims of right,[4]  I agree as to both points.

This Essay constitutes an initial move towards that understanding. It examines each pair in the conceptual trichotomy, considering the connections at each point in the triangle, when those connections come into play, and how and why to disentangle each pair.

Balancing Mandate and Discretion in the Institutional Design of Federal Climate Change Policy

By Robert L. Glicksman[*]

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As 2007 drew to a close, climate change dominated the environmental law and policy agenda.  A perfect storm of events has focused attention both in the media and on Capitol Hill, to an unprecedented degree, on the need to address climate change.[1]  These events include a series of reports on climate change issued by the Intergovernmental Panel on Climate Change (IPCC) throughout 2007, the award of the Nobel Peace Prize to former Vice President Al Gore and the IPCC, the devastation wrought by Hurricane Katrina and discussion among scientists about whether climate change tends to increase hurricane intensity, the wildfires in southern California, a series of international climate change conferences culminating in a year-end conference under the United Nations Framework Convention of Climate Change[2] in Bali, identification of links between climate change and national security,[3] and the steady stream of scientific reports documenting the degree to which climate change has already begun to alter the planetary environment in ways that often exceed previous predictions.[4]  Late in 2007, a long-time congressional supporter of tougher fuel efficiency standards for automobiles, when discussing an energy bill to address aspects of climate change, stated:  “Things are now dramatically and in a telescoped time frame all coming together to address these issues that have been on a 30-year detour.”[5]

Professor Victor Flatt’s essay Taking the Legislative Temperature[6] distills the policy issues reflected in the various bills on climate change pending near the end of the first session of the 110th Congress.  The issues he covers deal primarily with defining the substantive goals of climate change legislation and selecting appropriate policy instruments to achieve them.  This Essay focuses more on the institutional design of a climate change regime than on the kinds of substantive choices dealt with by Professor Flatt.  Professor Flatt proceeds on the premise that Congress almost certainly will adopt legislation to address climate change soon, although the form of that legislation is uncertain.  This Essay, which responds to his, also operates on the assumption that Congress will act.  It deals largely with the question of who gets to define the goals of climate change legislation and select the means of achieving them.  These institutional design questions involve determining how much discretion Congress should provide to those responsible for implementing climate change policy and determining who gets to exercise it.  The issues are familiar because discretion “lies at the root of administrative law doctrines and controversies.”[7]

Hot Spots in the Legislative Climate Change Proposals

By Carol M. Rose[*]

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Victor Flatt’s “Legislative Temperature” on climate change provides a useful typology of the proposals now under consideration in the U.S. Congress.[1]  Professor Flatt ultimately leaves it to us to decide which proposal is “best.”  But by tacit consensus, our legislators have already decided one element of the “best” legislation:  it will include some version of market-based regulation (“MBR”), in the form of cap-and-trade programs or even (gasp!) taxes.[2]  As Professor Flatt suggests, this development could hardly have been predicted from previous pollution control legislation, which generally adopted various kinds of command-and-control regulation.[3]

What happened?  Professor Flatt attributes the congressional change of heart to the apparent success of the one notable exception to command-and-control regulation; that was the effort to reduce acid rain through a cap-and-trade regime for sulfur dioxide (SO₂) emissions under the Clean Air Act Amendments of 1990.[4]  But Congress instituted the acid rain MBR only after a long and increasingly expensive slog through command-and-control regulation. Indeed, cap-and-trade was to act as a kind of relief from the growing costs of pollution abatement through command-and-control methods.[5]  This is a typical progression of legislative form; in other areas as well, like controlling overfishing, resource economists have noted that sophisticated MBRs only arrive after more cumbersome regulatory regimes have shown their limitations.[6]