An everlasting debate in the federal courts field is which branch of the federal government has the power to control federal jurisdiction. While some commentators and judges assert that the judiciary has the implicit authority to refine the boundaries of its jurisdiction, others argue that Article III vests that authority with Congress only and judicial modification of jurisdiction is illegitimate. In focusing almost entirely on the constitutional legitimacy of the question, this debate has overlooked an important consideration: Even if the judiciary may legitimately wield discretion in setting its jurisdiction, is such discretion functionally appropriate?
This Article argues that such discretion is not always appropriate. Relying on an empirical analysis of two decades of cases in one area of federal jurisdiction-hybrid law jurisdiction-the Article demonstrates that some jurisdictional questions are better resolved by simple, bright-line rules. Drawing on extensive scholarship studying rules and standards-which until now has not yet been applied in this field-the Article concludes that the particular (and often misunderstood) nature of hybrid law cases calls for a rule rather than a standard. This conclusion, while limited to the field of hybrid law jurisdiction, nonetheless suggests that the debate over judicial discretion in jurisdictional questions is too narrow. Only by considering functionality as well as legitimacy can the proper jurisdictional directives be formulated.
John F. Preis, Jurisdiction and Discretion in Hybrid Law Cases, 75 U. Cin. L. Rev. 145 (2006)