By Perry Dane[*]
The courts, and in particular the Supreme Court, have made a mess of the doctrine of jurisdiction and the idea of jurisdictionality. More specifically, they have made a mess of the relationship between time limits and the idea of jurisdictionality. That much is clear. The more interesting question, though, is why. The answer to that question has profound and deeply evocative jurisprudential implications.
Bowles v. Russell[1] was the Supreme Court’s most recent foray into the problem of jurisdictionality. Professor Scott Dodson’s short essay on the case[2] thoughtfully identifies some of the majority opinion’s analytic defects and practical pitfalls. He argues that the Court’s majority in Bowles was wrong to hold that the particular time limit contained in 28 U.S.C. § 2107(c) is jurisdictional. I am not sure I agree, though that is not the main thrust of my own comments here. More broadly, Professor Dodson acutely and usefully reminds all of us that time limits can be taken seriously, and even interpreted literally or peremptorily, without necessarily being labeled jurisdictional. Here I agree completely, but would add, importantly, that time limits can also be jurisdictional without being interpreted literally and peremptorily, and that the court’s failure to see this is evocative of something odd and melancholy in our current legal culture.
Much of my argument here appeared in an article called Jurisdictionality, Time, and the Legal Imagination that I published long before Bowles was decided.[3] I am not surprised that the Justices did not heed, and probably did not read, that article. I am intrigued, though, why they did not get the key to the jurisdictionality problem right on their own when the basic outline of the problem (though, to be sure, not the solution in any particular instance) is really so simple.
