By Scott Dodson[*]
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. 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 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. Mr. E. King Poor, Esq., defends Bowles as rightly decided and also as a good result. 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. 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. 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.