Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdiction generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of jurisdictional procedure, offers an explanation for its invisibility, and identifies the consequences of that neglect.
September 2014, Vol. 66, No. 5
F. Patrick Hubbard, “Sophisticated Robots”: Balancing Liability, Regulation, and Innovation
Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs From Arbitration Clauses
Jason Rantanen & Lee Petherbridge, Ph.D., Disuniformity