Jurisdictional Sequencing

The Supreme Court has begun to grapple with theproblems presented by the doctrine of jurisdictionalsequencing-the decision of certain issues, and even thedismissal of cases, before a federal court has verified itssubject matter jurisdiction. Recent jurisprudence hascreated confusion as to what, if anything, a federal courtmay do before it verifies subject matter jurisdiction.Moreover, scholars and courts have struggled to discernan underlying rationale for jurisdictional sequencing, andno theory has been able to explain the case law fully oroffer a satisfying normative defense of the doctrine. This Article develops a theory of jurisdictionalsequencing that is the first to accomplish both tasks.Unlike earlier scholarship, it explores jurisdictionalsequencing by addressing the underlying question of whatprecisely subject matter jurisdiction protects. The Articleargues that subject matter jurisdiction is a surprisinglynarrow structural constraint on federal courts' power.Consequently, a federal court must have jurisdiction inorder to adjudicate a conduct rule governing substantiverights.

By contrast, subject matter jurisdiction is notabsolutely necessary when a court decides a rule thatmerely allocates decision-making authority. The theoryadvanced here explains the case law and also groundsjurisdictional sequencing in a novel vision of subjectmatter jurisdiction that dovetails with scholarly anddoctrinal developments in other areas of the law.