September 27, 2005

Jurisdictional metaphors.

I don't know if you follow the jurisdiction cases, but I sure do. It is an area of judicial opinion-writing where metaphors abound. The favorite metaphor is the "courthouse door." It's very hard, apparently, to discuss a court's power to hear a particular case without talking about the door. In a recent case (about the scope of federal question jurisdiction), Justice Souter ran with the metaphor:
The Court [in Merrell Dow] saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues....

Expressing concern over the "increased volume of federal litigation," and noting the importance of adhering to "legislative intent," Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law "solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] ... under state law." 478 U. S., at 811-812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out.
I don't know if I like the whole welcome mat/door key addition to the usual door metaphor in jurisdiction, since courthouse doors never have welcome mats and litigants don't need keys to get in the courthouse door.

Maybe try something with a metal detector next time.

7 comments:

Matt Barr said...
This comment has been removed by a blog administrator.
Matt Barr said...

Federal jurisdiction is like having the alarm deactivation passcode.

Diversity jurisdiction is like having easily-removable screens on a first floor window and ADT's false alarm phone number and password for when the alarm goes off.

(Maritime jurisdiction is like living on a boat, arrrrr.)

Scipio said...

So is discretionary abstention from bankruptcy "related-to" jurisdiction the claymore mine under the welcome mat?

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