Wednesday, October 03, 2007

Prof. Cox Posts Article on Courts' Exercise of Jurisdiction Based on Uninvoked Grounds

Prof. Jeannette Cox of the University of Dayton School of Law has posted an article entitled Removed Cases and Uninvoked Jurisdictional Grounds (to be published in the North Carolina Law Review) on SSRN. Here is the abstract:

Traditionally understood, a congressional grant of federal subject matter jurisdiction alone does not confer authority on a federal court to hear a case; a party to the case must also affirmatively invoke the applicable jurisdictional ground. In a sharp break from this traditional understanding, federal courts have recently begun to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Courts adopting this practice have concluded that a district court must retain removed cases that meet the requirements of a congressionally-authorized ground of subject matter jurisdiction even when an arguably antecedent requirement — party invocation of that jurisdictional ground — has not occurred. This article identifies and examines this development, coining the phrase “mandatory retention” to describe federal courts' decision to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Although the article concludes that mandatory retention is a doctrinal misstep that should be abandoned, it posits that the emergence of mandatory retention may serve two useful functions. First, mandatory retention prompts reexamination of the respective roles played by courts and litigants in the process of invoking federal subject matter jurisdiction. Second, and more narrowly, mandatory retention invites examination of the origins and continued justification of the long-held doctrine that denies defendants the opportunities to amend jurisdictional allegations that plaintiffs routinely enjoy.

Those interested in downloading the full version of this article may do so by visiting


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