Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a rejoinder to my critique. In it, he argued the meaning of the word “jurisdiction” is “definitional law” that binds Congress just as other words with “settled” meanings bind Congress. In this brief response to his argument, I articulate our key area of disagreement and explain why I continue to believe his view is wrong.
John Preis, Jurisdiction and “Definitional Law,” 60 Wm. & Mary L. Rev. Online 93 (2019).