Perry Dane (Rutgers School of Law - Camden) has posted Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles V. Russell (Northwestern University Law Review Colloquy, Vol. 102, 2008) on SSRN. Here is the abstract:
This short essay comments on the United States Supreme Court's recent decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), and on Professor Scott Dodson's critique of Bowles at 102 Nw. U. L. Rev. Colloquy 42 (2007).
The majority in Bowles held that the federal statutory time limit for the filing of appeals is jurisdictional, and must therefore be enforced literally and mercilessly. The dissent argued that the time limit is not jurisdictional, and need not be enforced literally and mercilessly. My essay expresses no strong view on whether this particular time limit is actually jurisdictional. It does, however, argue that the underlying assumption - that if a time limit is jurisdictional, it is necessarily draconian - is simply mistaken. It treats as mandatory not only the jurisdictional rule itself, but also one particular, literal and merciless, interpretation of that rule. This move is not only entirely unnecessary, it is belied by the treatment of jurisdictional questions in other, less arithmetical, contexts.
More broadly, I argue in this essay, as I did in more detail in an earlier, exhaustive, article,Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra Law Review 1 (1994), that the doctrine of jurisdictional time limits represents a certain neurotic turn in the law. More particularly, in Bowles, both the majority and the dissent fail to embrace the potential of the legal imagination. The majority seems to believe that the only way to respect the importance of jurisdictionality is to construe jurisdictional rules literally. The dissent, meanwhile, ends up chopping away at the rich tradition of the notion of jurisdiction in American law, making no real effort to investigate the roots of the legal ideas it is trying to explicate. Both these errors reflect more general, deeply consequential, and sad trends in American legal reasoning and legal culture.
