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.