Mandatory rules

Stanford Law Review

Volumn 61, Issue 1, 2008, Pages 1-36

  Dodson, Scott ^a,b  

^a DUKE UNIVERSITY   (United States)

^b UNIVERSITY OF ARKANSAS   (United States)

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EID: 57849130480     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (281)

1. FED. R. BANKR. P. 4004(a).
2. See Kontrick v. Ryan, 540 U.S. 443, 447 (2004).
3. FED. R. CRIM. P. 33(b)(2).
4. See Eberhart v. United States, 546 U.S. 12, 15-19 (2005) (per curiam).
5. Arbaugh v. Y & H Corp., 546 U.S. 500, 504 (2006);
6. see 42 U.S.C. § 2000e-5 (2000).
7. See Arbaugh, 546 U.S. at 514-16.
8. 28 U.S.C. § 2107(c) (2000).
9. See Bowles v. Russell, 127 S. Ct. 2360 (2007).
10. See John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750 (2008).
11. See Scott Dodson, In Search of Removal Jurisdiction, 102 NW. U. L. REV. 55 (2008) (developing such a framework).
12. See infra note 15.
13. See infra note 16.
14. See infra text accompanying notes 17-19.
15. See infra note 17.
16. I say "usually" because there are at least three areas in which a jurisdictional rule's effects might be more complicated. First, the rule might be jurisdictional without implicating subject-matter jurisdiction. Personal jurisdiction, for example, can be waived. Second, a jurisdictional rule might have nonjurisdictional preconditions. Appellate jurisdiction, for example, will not attach without a notice of appeal being filed, but what constitutes a notice may be subject to some equitable flexibility. Third, a rule could be jurisdictional yet also contemplate, either expressly or implicitly, the effects of equity or waiver. The deadline to file a notice of appeal in a civil case, for example, may be jurisdictional, but the statute governing that deadline specifically allows courts to extend it for certain equitable reasons. See generally Scott Dodson, Appreciating Mandatory Rules: A Reply to Critics, 102 NW. U. L. REV. COLLOQUY 228 (2008), http://colloquy.law.northwestern.edu/main/2008/02/ appreciating-ma.html (exploring these possibilities). Both for simplicity's sake and to focus the discussion on the underexplored nonjurisdictional side of the equation, I will confine "jurisdictional" to matters of subject-matter jurisdiction and avoid ruminating, at least for now, on different species of jurisdictional rules.
17. See United States v. Cotton, 535 U.S. 625, 630 (2002) ("[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.");
18. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (stating that courts have an independent obligation to determine whether subject-matter jurisdiction exists, even if not challenged by any party);
19. Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 702 (1982) (setting out characteristics of subject-matter jurisdiction).
20. See, e.g., United States v. Lee, No. 06-51399, 2007 WL 2693073, at *1 (5th Cir. Sept. 10, 2007) (per curiam) ("[T]ime limits not imposed by statute are not jurisdictional. The specific implication is that these time limits may be waived." (internal citations omitted));
21. Cook v. United States, No. 06-5276, 2007 WL 2566014, at *3 (6th Cir. Sept. 5, 2007) ("[J]urisdictional rules are mandatory; therefore, their time limits cannot be waived. On the other hand, claim-processing rules are not jurisdictional-thus, their time limits can be waived." (emphasis in original) (citation omitted));
22. E. King Poor, Jurisdictional Deadlines in the Wake of Kontrick and Eberhart: Harmonizing 160 Years of Precedent, 40 CREIGHTON L. REV. 181, 208 n.172 (2007)
23. ("The importance of the distinction [between jurisdictional and nonjurisdictional characterizations] was that non-jurisdictional deadlines are subject to equitable exceptions, described as 'waiver, estoppel, and equitable tolling.'" (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))).
24. 547 U.S. 198, 205 (2006) ("A statute of limitations defense ... is not 'jurisdictional,' hence courts are under no obligation to raise the time bar sua sponte." (emphasis in original));
25. id. at 213 (Scalia, J., dissenting) ("We have repeatedly stated that the enactment of time-limitation periods such as that in § 2244(d), without further elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and forfeiture.").
26. Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 HOFSTRA L. REV. 1, 12 (1994).
27. Cf. Kontrick v. Ryan, 540 U.S. 443, 457 n.12 (2004) (noting the possibility that a debtor and creditor may not be able to stipulate to the assertion of time-barred claims when their assertion would prejudice other creditors);
28. id. at 457 n. 11 (noting a split in the lower courts as to whether equitable exceptions can excuse noncompliance with the deadline to object to a debtor's discharge).
29. Eberhart v. United States, 546 U.S. 12, 19 (2005) (characterizing Federal Rule of Criminal Procedure 45(b) as "inflexible").
30. 28 U.S.C. § 2254(b)(3) (2000).
31. Day, 547 U.S. at 206-07 (citing the unanimity of the circuits on this issue).
32. See, e.g., Arizona v. California, 530 U.S. 392, 412 (2000) (res judicata defense);
33. Schiro v. Farley, 510 U.S. 222, 229 (1994) (retroactivity);
34. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (failure to prosecute);
35. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (forum non conveniens).
36. See, e.g., Dane, supra note 19, at 39 ("First, legal rules can be mandatory without being jurisdictional.");
37. Alex Lees, Note, The Jurisdictional Label: Use and Misuse, 58 STAN. L. REV. 1457, 1497 (2006) ("Courts can still apply nonjurisdictional rules with rigidity and decide, for example, that even if a particular rule is nonjurisdictional, it still cannot be waived.").
38. Bowles v. Russell, 127 S. Ct. 2360, 2362 (2007).
39. 28 U.S.C. § 2107(a) (2000);
40. see also FED. R. APP. P. 4(a)(1)(A).
41. Bowles, 127 S. Ct. at 2362.
42. 28 U.S.C. § 2107(c);
43. see also FED. R. APP. P. 4(a)(6).
44. Bowles, 127 S. Ct. at 2362.
45. Id.
46. 28 U.S.C. § 2107(c);
47. see also FED. R. CIV. P. 4(a)(6).
48. Bowles, 127 S. Ct. at 2362-63.
49. Id. at 2363 ("This Court has long held that the taking of an appeal within the prescribed time is 'mandatory and jurisdictional.'").
50. Id. at 2366.
51. See, e.g., Scott Dodson, Jurisdictionality and Bowles v. Russell, 102 NW. U. L. REV. COLLOQUY 42, 46 (2007), http://www.law.northwestem.edu/lawreview/colloquy/ 2007/21/; Dodson, supra note 10, at 78 & n.126.
52. Bowles, 127 S. Ct. at 2367 (Souter, J., dissenting).
53. See Dodson, supra note 36, at 46.
54. See discussion infra Parts II.C.1, II.C.2.
55. The Court has previously dispensed with a jurisdictional question in favor of a narrower ruling. See Hallstrom v. Tillamook County, 493 U.S. 20, 31 (1989) (declining to answer the question presented-whether the Resource Conservation and Recovery Act's sixty-day notice provision was jurisdictional-and instead resolving the narrower question presented by the facts, namely whether the provision was amenable to equitable exceptions).
56. See Dodson, supra note 36, at 46-47. Note that my definition is critically different than Justice Souter's, who describes a mandatory rule as one that, while "enforceable at the insistence of a party claiming its benefit or by a judge concerned with moving the docket, it may be waived or mitigated in exercising reasonable equitable discretion."
57. Bowles, 127 S. Ct. at 2368 (Souter, J., dissenting). I take this to mean that Justice Souter believes a mandatory rule may be mitigated through the exercise of reasonable equitable discretion. I disagree with that definition. Allowing a "mandatory" rule to be subject to equitable discretion would render the "mandatory" moniker meaningless, for there would be nothing "mandatory" about it.
58. I am of two minds as to whether a mandatory rule should generally allow or bar equitable estoppel. The principle of equitable estoppel is that where one party has, by his representations or conduct, induced the other party to give him an advantage that would be against equity and good conscience for him to assert, he should not be permitted to avail himself of that advantage in a court of justice. Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 234 (1959). On the one hand, equitable estoppel could be viewed as a form of waiver-one that is implied or forced based on the equitable doctrine that a party's own behavior has deprived him of the right to benefit from the legal rule. See Dane, supra note 19, at 66-67. On the other hand, equitable estoppel is actually the opposite of waiver because it arises only when a party timely invokes the rule-it is only that equity deems the invocation ineffective. While generally I can see both arguments, specifically I believe, as I discuss in more depth below, that equitable estoppel should not be available in the context of state sovereign immunity.
59. See infra text accompanying notes 182-190.
60. Cf. Mark A. Hall, The Jurisdictional Nature of the Time to Appeal, 21 GA. L. REV. 399, 419 (1986) (discussing similar benefits).
61. Cf. Dane, supra note 19, at 20-21 ("Strictly construed time limits create incentives for compliance. They encourage repose and advance finality. They reduce the burden on courts of deciding when leniency is in order." (citation omitted)).
62. Unlike a court, which should worry about the dangers of overdeciding or underdeciding the specific case before it, see supra text accompanying notes 36-38, 1 mean to characterize the statute fully and for a broader purpose. I do not mean to suggest that the Court should have followed my methodological approach wholesale in Bowles.
63. Dodson, supra note 10, at 66-78.
64. Id. at 66.
65. 28 U.S.C. § 2107(a) (2000).
66. Cf. Kontrick v. Ryan, 540 U.S. 443 (2004) (holding nonjurisdictional Bankruptcy Rule 4004(a), which prescribes that an objecting creditor "shall" file within sixty days).
67. Dodson, supra note 10, at 71-72.
68. Hall, supra note 43, at 399-400 ("[Ajppeal periods are like original jurisdiction limitation periods: they involve primarily the interests of the immediate parties, not fundamental societal interests.");
69. Lees, supra note 25, at 1496.
70. 28 U.S.C. § 2107(a).
71. See Lees, supra note 25, at 1496 (arguing that power shifts support a jurisdictional characterization).
72. Dodson, supra note 10, at 77.
73. 28 U.S.C. § 2107(c) (conditioning extensions on the filing of a motion).
74. Id. (allowing an extension "upon a showing of excusable neglect or good cause").
75. Dodson, supra note 10, at 78.
76. See Bowles v. Russell, 127 S. Ct. 2360, 2363 (2007).
77. See Scott Dodson, The Failure of Bowles v. Russell, 43 TULSA L. REV. 631, 635-43 (2008).
78. See, e.g., FED. R. CIV. P. 8(c) (characterizing statutes of limitations as waivable affirmative defenses);
79. Day v. McDonough, 547 U.S. 198, 205 (2006);
80. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 93-96 (1990);
81. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982);
82. Lees, supra note 25, at 1491-98 (linking statutes of limitations to appeal deadlines as support for a nonjurisdictional characterization of each).
83. 28 U.S.C. § 2107(a).
84. See, e.g., Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (stating that "the mandatory 'shallf]' . . . normally creates an obligation impervious to judicial discretion").
85. But cf. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 433 n.9 (1995) ("Though 'shall' generally means 'must,' legal writers sometimes use, or misuse, 'shall' to mean 'should,' 'will,' or even 'may.'").
86. 28 U.S.C. § 2107(c).
87. See, e.g., United States v. Beggerly, 524 U.S. 38, 48-49 (1998) ("Equitable tolling is not permissible where it is inconsistent with the text of the relevant statute. Here, the QTA, by providing that the statute of limitations will not begin to run until the plaintiff 'knew or should have known of the claim of the United States,' has already effectively allowed for equitable tolling. Given this fact, and the unusually generous nature of the QTA's limitations time period, extension of the statutory period by additional equitable tolling would be unwarranted.") (citations omitted);
88. United States v. Brockamp, 519 U.S. 347, 352 (1997) ("Section 6511 's detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, 'equitable' exceptions into the statute that it wrote.");
89. Bank of Ala. v. Dalton, 50 U.S. 522 (1850) (interpreting a statute of limitations that includes specified exceptions to exclude others).
90. See Bowles v. Russell, 127 S. Ct. 2360, 2364-65 (2007) (citing precedent).
91. See supra text accompanying note 59.
92. See supra text accompanying note 59.
93. See United States v. Robinson, 361 U.S. 220, 224-26 (1960) (characterizing a time limit in the Federal Rules of Appellate Procedure for filing a notice of appeal as "mandatory and jurisdictional," and holding the limit not subject to extension for reasons of excusable neglect).
94. Considerations of stare decisis have special force in statutory interpretation cases because Congress can alter the Court's interpretations.
95. See Ankenbrandt v. Richards, 504 U.S. 689, 700 (1992); Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989).
96. Keith Bowles's own reliance on an erroneous district court order is particularly sympathetic. See Elizabeth Chamblee Burch, Nonjurisdictionality or Inequity, 102 NW. U. L. REV. COLLOQUY 64 (2007), http://www.law.northwestern.edu/lawreview/colloquy/ 2007/24/.
97. See Browder v. Dir., Dep't of Corr., 434 U.S. 257, 264 (1978).
98. Hall, supra note 43, at 425.
99. Other commentators have agreed, though under a more cursory analysis. See, e.g., id. at 424.
100. I have oversimplified here for convenience. In reality, state sovereign immunity is more convoluted; for example, it encompasses immunity from suits brought by private individuals and foreign nations but not suits brought by other states or the federal government. Compare Principality of Monaco v. Mississippi, 292 U.S. 313 (1934) (applying immunity to suits by foreign nations),
101. and Hans v. Louisiana, 134 U.S. 1 (1890) (applying immunity to suits brought by private individuals),
102. with United States v. Mississippi, 380 U.S. 128, 140-41 (1965) (refusing to apply immunity to suits brought by the United States),
103. and South Dakota v. North Carolina, 192 U.S. 286, 315 (1904) (refusing to apply immunity to suits brought by a state),
104. and United States v. Texas, 143 U.S. 621, 646 (1892) (same as United States v. Mississippi).
105. See CLYDE E. JACOBS, THE ELEVENTH AMENDMENT AND SOVEREIGN IMMUNITY 5 (1972) ("At least as early as the thirteenth century, during the reign of Henry III (1216-1272), it was recognized that the king could not be sued in his own courts . . . .");
106. Louis L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 HARV. L. REV. 1, 2 (1963) ("By the time of Bracton (1268) it was settled doctrine that the King could not be sued eo nominee in his own courts.");
107. See also Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1857) ("It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission ....").
108. See 1 WILLIAM BLACKSTONE, COMMENTARIES *243-51 ; .
109. see also Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (Holmes, J.) ("A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.").
110. But see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 97-98 (1996) (Stevens, J., dissenting) (criticizing this logic).
111. See 1 BLACKSTONE, supra note 76, at *242 ("[N]o suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power . . . .");
112. see also Seminole Tribe, 517 U.S. at 103 (Souter, J., dissenting) ("[T]he King or Crown, as the font of justice, is not subject to suit in its own courts.");
113. Nevada v. Hall, 440 U.S. 410, 414-15 (1979) (explaining sovereign immunity on the basis that no tribunal could be higher than the King).
114. United States v. Lee, 106 U.S. 196, 205 (1882) (surmising that the doctrine "is derived from the laws and practice of our English ancestors").
115. Cf. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 115 (2000) (explaining that the Framers broke with English tradition in a variety of ways, including English understanding of sovereignty).
116. See Clinton v. Jones, 520 U.S. 681, 697 n.24 (1997) ("Although we have adopted the related doctrine of sovereign immunity, the common law fiction that [the King can do no wrong] was rejected at the birth of the Republic").
117. See THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776);
118. THE FEDERALIST No. 22, at 152 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (stating that the people are "that pure, original fountain of all legitimate authority");
119. id. No. 46, at 294 (James Madison) ("The federal and State governments are in fact but different agents and trustees of the people .... [T]he ultimate authority, wherever the derivative may be found, resides in the people alone . . . .");
120. id. No. 49, at 313 (James Madison) ("[T]he people are the only legitimate fountain of power. . . .");
121. see also Alden v. Maine, 527 U.S. 706, 802 (1999) (Souter, J., dissenting) (stating that royal dignity is "inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above the them, but of them, its actions being governed by law just like their own");
122. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 344-62, 404-10, 447-54, 463-65 (1969) (explaining that the revolutionaries and, later, the Federalists, located sovereignty in the people rather than in the government).
123. U.S. CONST, art. VI.
124. See, e.g., 2 THE COMPLETE ANTI- FEDERALIST 429-31 (Herbert J. Storing ed., 1981) (Brutus) (interpreting Article III to "subject[] a state to answer in a court of law, to the suit of an individual");
125. THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 526-27 (Jonathan Elliot ed., 2d ed. 1876)
126. [hereinafter ELLIOT'S DEBATES] (George Mason) (arguing that Article III enables "claimfs] against this state [to] be tried before the federal court");
127. THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 41-42 (John P. Kaminski & Gaspare J. Saladino eds., 1983) (Federal Farmer) ("[T]his new jurisdiction will subject the states ... to actions, and processes . . . .").
128. For a list of similar ratification sentiments, see Scott Dodson, The Metes and Bounds of State Sovereign Immunity, 29 HASTINGS CONST. L.Q. 721, 728 n.33 (2002).
129. THE FEDERALIST No. 81, supra note 81, at 487 (Alexander Hamilton).
130. 3 ELLIOT'S DEBATES, supra note 83, at 533 (James Madison).
131. Id. at 555 (John Marshall).
132. 2 U.S. (2 Dall.) 419 (1793).
133. Id.
134. I CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 101 (rev. ed. 1937) ("[N]o State shall be liable to be made a party defendant in any of the Judicial Courts established or to be established under the authority of the United States, at the suit of any person or persons, citizens or foreigners, or of any body politic or corporate whether within or without the United States.").
135. See 1793 Va. Acts 52; John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889, 1931 (1983).
136. See JACOBS, supra note 75, at 65-66.
137. 3 ANNALS OF CONG. 25(1794).
138. Id. at 30-31.
139. 4 id. at 476-78.
140. See supra text accompanying notes 80-82.
141. See United States v. Lee, 106 U.S. 196, 207 (1882) ("And while the exemption of the United States and of the several states from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.").
142. See supra Part II.C. 1.
143. I sympathize with the view that sovereign immunity has aspects of personal jurisdiction, see Caleb Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 HARV. L. REV. 1559 (2002), and many of the arguments I make here might also support such a characterization.
144. I have not yet resolved how personal jurisdiction fits into the jurisdictional characterization inquiry, and so, as I mentioned at the outset, see supra note 15,1 have proceeded on the definition of "jurisdiction" as subject-matter jurisdiction. Thus, that personal jurisdiction may appropriately characterize the doctrine of state sovereign immunity does not mean that "mandatory but nonjurisdictional, " as I have explained it, does not as well.
145. Dodson, supra note 10, at 66-67.
146. See THE FEDERALIST NO. 81, supra note 81, at 487 (Alexander Hamilton) ("It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent").
147. Congress may abrogate the sovereign immunity of the states by statute in certain cases, see, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006) (allowing abrogation under the Bankruptcy Clause);
148. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (allowing abrogation under the Fourteenth Amendment),
149. and states themselves may waive their immunity by state statute, see, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999) (stating that many state statutes waive sovereign immunity for certain cases).
150. U.S. CONST, amend. XI.
151. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).
152. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
153. See Alden, 527 U.S. at 722-23.
154. See Scott Dodson, Vectoral Federalism, 20 GA. ST. U. L. REV. 393, 394 n.6 (2003) (citing cases).
155. I alluded to this in an earlier article. See Scott Dodson, Dignity: The New Frontier of State Sovereignty, 56 OKLA. L. REV. 777, 821 (2003) ("Perhaps the best resolution lies in rethinking the characterization of state sovereign immunity as a limitation on judicial power. If it is indeed so completely divorced from the text of the Constitution as the Court has intimated, it need not be bound by the Eleventh Amendment's reference to a limit on 'the judicial Power,' ... .").
156. Alden, 527 U.S. at 730.
157. See Nelson, supra note 98 (distinguishing between Eleventh Amendment immunity as subject-matter jurisdiction and non-Eleventh Amendment immunity as personal jurisdiction);
158. see also Alden, 527 U.S. at 736 ("[T]he . . . text of the Amendment is not an exhaustive description of the States' constitutional immunity from suit.");
159. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116-17 (1996) (Souter, J., dissenting) (recognizing a nonconstitutional immunity outside of the Eleventh Amendment).
160. See Clark v. Barnard, 108 U.S. 436 (1887);
161. see also Lapides v. Bd. of Regents of the Univ. of Ga., 535 U.S. 613, 620 (2002) (holding that a state's voluntary removal to federal court waives Eleventh Amendment immunity);
162. Idaho v. Couer d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) ("[A] State can waive its Eleventh Amendment protection and allow a federal court to hear and decide a case commenced or prosecuted against it.").
163. See Scarborough v. Principi, 541 U.S. 401, 413-14 (2004) (setting out these categories);
164. Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004) (same).
165. See Dodson, supra note 10, at 71-77. ("To the extent that a particular issue that arises is just too difficult to characterize as a claim-processing rule or one that separates classes of cases, then this factor in the framework may be less helpful than the other factors, but that does not mean that the framework as a whole cannot be effective.").
166. See supra note 77.
167. See supra text accompanying notes 80-82.
168. Of course, the dignity rationale also is of questionable pedigree, see Dodson, supra note 107, at 780-808, but it does have the additional force of express Supreme Court endorsement.
169. U.S. CONST. art. III, §2 (extending jurisdiction to suits between states).
170. See, e.g., South Dakota v. North Carolina, 192 U.S. 286, 315 (1904) (refusing to allow immunity from suit brought against a state by a state).
171. U.S. CONST, amend. XI.
172. See supra text accompanying notes 103-09.
173. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (calling the doctrine "a sovereign immunity from suit");
174. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (stating that immunity is justified "in part by a concern that States not be unduly burdened by litigation").
175. 541 U.S. 401 (2004).
176. Id. at 413.
177. See Coeur d'Alene, 521 U.S. at 267 (calling the doctrine "a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction").
178. Cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 514-15 (2006) (holding the employer-numerosity requirement of Title VII to be nonjurisdictional, even though an employer not meeting the requirement would not be covered by the statute at all).
179. Compare Saucier v. Katz, 533 U.S. 194, 200 (2001) (stating that official immunity "is an immunity from suit rather than a mere defense to liability")
180. (internal quotation marks and emphasis omitted), with Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (stating that official immunity is an affirmative defense that must be pleaded).
181. See Dane, supra note 19, at 36-37 ("Commentators sometimes say that parties cannot control jurisdictional issues because jurisdictional rules embody societal interests that go beyond the interests of the parties and that none of the parties might have an adequate incentive to advance. For example, both parties to a lawsuit might prefer their case to be heard in a fast, efficient, clean federal court than in a slow, clumsy, dingy state court. But the larger social interest in federalism might dictate otherwise.");
182. Hall, supra note 43, at 423 (referencing "important political principles that underlie the jurisdictional limits in a federal system").
183. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002). A secondary purpose is to protect the state fisc. See id. at 765 ("While state sovereign immunity serves the important function of shielding state treasuries and thus preserving the States' ability to govern in accordance with the will of their citizens, the doctrine's central purpose is to accord the States the respect owed them as joint sovereigns." (citation and internal quotation marks omitted));
184. id. at 769 ("As we have previously noted, however, the primary function of sovereign immunity is not to protect State treasuries, but to afford the States the dignity and respect due sovereign entities." (citation omitted)).
185. See Dodson, supra note 107, at 820-23.
186. See id. at 807 (questioning the federalism benefits of the dignity rationale);
187. Michael C. Dorf, The Supreme Court, 1997 Term-Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 61 (1998) ("[T]he Court appears to be much more concerned about preserving the dignity of the states-as if they were natural persons that could experience hurt feelings beyond those of their residents-than in pursuing decentralization and the other policy goals that federalism serves." (citations omitted));
188. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 910-26 (1994).
189. See generally Frank B. Cross, The Folly of Federalism, 24 CARDOZO L. REV. 1 (2002) (analyzing the impact of state sovereignty on federalism values).
190. Dodson, supra note 10, at 59-61.
191. See Ann Althouse, On Dignity and Deference: The Supreme Court's New Federalism, 68 U. CLN. L. REV. 245, 266 (2000) (noting that a state cannot simply declare bankruptcy or limit spending only to profitable matters).
192. See supra text accompanying notes 125-28.
193. See Dodson, supra note 107, at 820-23.
194. See Alden v. Maine, 527 U.S. 706, 755 (1999) (stating that Congress may induce immunity waivers through Spending Clause legislation).
195. See Christina Bohannan, Beyond Abrogation of Sovereign Immunity: State Waivers, Private Contracts, and Federal Incentives, 77 N.Y.U. L. REV. 273, 290-91 (2002) (arguing that, as a limit on subject-matter jurisdiction, states may assert sovereign immunity for the first time even on a collateral attack to the judgment).
196. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
197. Two cases illustrate the likely rarity of such delay. In Northern Insurance Co. of New York v. Chatham County, 547 U.S. 189 (2006), the plaintiff insurance company sued a Georgia county for negligent operation of a drawbridge. The county immediately moved for summary judgment on sovereign immunity grounds, even though it was not an arm of the state.
198. Id. at 192. The county's conduct demonstrates the willingness of quasi-state entities to claim immunity even if their justifications for the claim are doubtful.
199. The other case, Edelman v. Jordan, 415 U.S. 651 (1974), may be the exception that proves the rule. There, the plaintiff sued a state officer for declaratory and injunctive relief. It was not until the plaintiff prevailed and the court issued an order against the state officer that the state officer appealed and asserted sovereign immunity from part of the judgment.
200. Id. at 677-78. The Court allowed the assertion of immunity for the first time on appeal.
201. Id. However, there was good reason to do so. The suit ostensibly was permitted by Ex parte Young, 209 U.S. 123 (1908), at the outset; it was not until the district court ordered retroactive monetary payments that the state officer asserted immunity from such payments as not covered by the Young exception. Indeed, the Supreme Court reversed only that part of the order.
202. Edelman, 415 U.S. at 678. Had the state officer understood that retroactive payments were sought, it is likely he would have asserted the immunity defense at the outset as well.
203. See Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002) (adopting general waiver principles as a basis for a federal common law of sovereign immunity waiver);
204. id. at 623-24 (disagreeing that the waiver rule adopted is confusing or unclear).
205. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 391-92 (1998) ("Even making the assumption that Eleventh Amendment immunity is a matter of subject-matter jurisdiction - a question we have not decided . . . .").
206. Compare Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997) (calling it "a sovereign immunity from suit, rather than a nonwaivable limit on the federal judiciary's subject-matter jurisdiction"), with Edelman, 415 U.S. at 677-78 (stating that state sovereign immunity "sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court").
207. See Alden v. Maine, 527 U.S. 706, 755 (1999) ("Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits.");
208. Great N. Life Ins. Co. v. Read, 322 U.S. 47, 53 (1944) (proclaiming that immunity is "mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign").
209. See Lapides, 535 U.S. at 616 (holding that a state's removal to federal court constituted waiver); Clark v. Barnard, 108 U.S. 436, 447 (1883) ("The immunity from suit belonging to a state ... is a personal privilege which it may waive at pleasure .. ..").
210. See 1 BLACKSTONE, supra note 76, at *243 ("If any person has, in point of property, a just demand upon the King, he must petition him in his court of chancery, where his chancellor will administer right, as a matter of grace, though not upon compulsion.");
211. see also Banker's Case, 14 Howell's State Trials 1 (1700);
212. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 460 (1793) (Wilson, J.) (restating the English practice).
213. See supra note 140.
214. See, e.g., Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 377 n.21 (1978);
215. Sosna v. Iowa, 419 U.S. 393, 398 (1975);
216. Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 149 (1834).
217. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 127-28 (1996) (Souter, J., dissenting);
218. Pennsylvania v. Union Gas Co., 491 U.S. 1, 25-29 (1989) (Stevens, J.. concurring).
219. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring).
220. See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (stating that courts have an independent obligation to determine whether subject-matter jurisdiction exists, even if not challenged by any party).
221. See Ex porte Young, 209 U.S. 123, 159-60 (1908) (establishing the exception);
222. see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (limiting Young to violations of federal law);
223. Edelman v. Jordan, 415 U.S. 651, 665 (1974) (limiting Young to prospective, nonmonetary relief).
224. See South Dakota v. North Carolina, 192 U.S. 286, 315 (1904) (refusing to allow immunity from suit brought against a state by a state);
225. see also United States v. Mississippi, 380 U.S. 128 (1965) (refusing to allow immunity from suit brought against a state by the United States); United States v. Texas, 143 U.S. 621 (1892) (same).
226. Official immunity for police officers and other state officials acting in the scope and discretion of official duties, a possible analogue, is nonjurisdictional. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
227. 309 U.S. 506 (1940).
228. Id. at 512-15.
229. See GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT §§ 8.12-.13 (4th ed. 2006).
230. U.S. Fid. & Guar., 309 U.S. at 513-15.
231. Id.
232. Id.
233. 463 U.S. 206, 212 (1983) ("[T]he existence of consent [or waiver] is a prerequisite for jurisdiction. ").
234. The Court has recognized that differences between federal sovereign immunity and state sovereign immunity may justify their differential doctrinal development. See, e.g., Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542-43 (2002) (declining to construe state sovereign immunity doctrine consistently with federal sovereign immunity doctrine on an issue of limitations).
235. But see Coll. Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999) (calling federal sovereign immunity "obviously the closest analogy" to state sovereign immunity in the waiver context).
236. Of course, cross-doctrinal consistency also could be achieved by rethinking the jurisdictional status of federal sovereign immunity.
237. See supra text accompanying notes 111, 125-28.
238. See supra text accompanying note 129.
239. See supra note 139.
240. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 394 (1998) (Kennedy, J., concurring).
241. Cf. Day v. McDonough, 547 U.S. 198, 205-10 (2006) (allowing courts to raise the untimeliness of habeas petitions on their own even though the time bar is nonjurisdictional and does not require them to do so).
242. See United States v. Olano, 507 U.S. 725, 733 (1993); cf. Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004) (acknowledging the distinction).
243. Cf. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002) (suggesting that these are values that ought to be considered in immunity jurisprudence).
244. See, e.g., N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189 (2006) (entertaining the assertion of sovereign immunity by a county whose ability to invoke immunity was unclear).
245. Cf. 28 U.S.C. §2254(b)(3) (2000) (eliminating the forfeitability of the habeas exhaustion requirement to ensure that waiver was proper).
246. One possible exception is Edelman v. Jordan, 415 U.S. 651 (1974).
247. See supra note 135.
248. See FED. R. CIV. P. 15(a);
249. cf. Day v. McDonough, 547 U.S. 198, 205-10 (2006) (recognizing the utility of Rule 15 to assert defenses otherwise forfeited).
250. See supra text accompanying note 162.
251. See FED. R. CIV. P. 12(b).
252. See FED. R. CIV. P. 56.
253. 323 U.S. 459 (1945), overruled by Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002).
254. Id.
255. Id. at 469.
256. Lapides, 535 U.S. at 623 (overruling Ford).
257. Ford, 323 U.S. at 467.
258. 415 U.S. 651 (1974)
259. See id. 677-78 (considering the defense, though it was raised for the first time on appeal).
260. Id.
261. Edelman, in particular, may have had good reason to allow the tardy assertion. See supra note 135.
262. See supra note 147.
263. Ex parte Young, 209 U.S. 123, 159-60 (1908).
264. See Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459 (1945).
265. Edelman, 415 U.S. at 664-68.
266. Id. at 666;
267. see also Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 282-88 (1997) (refusing to apply the Young doctrine to a suit seeking prospective equitable relief that was the functional equivalent to a quiet title action against the state).
268. See Pemrick v. Stracher, No. 92 CV 959(CLP), 2007 WL 1876504, at *8 n.16 (E.D.N.Y. June 28, 2007) (assuming that equitable estoppel could prevent a state from asserting immunity but finding that its application was unwarranted by the facts of the case);
269. Hoskins v. Kaufman Indep. Sch. Dist, No. Civ. A. 303CV0130D, 2003 WL 22364356, at *1 n.2 (N.D. Tex. Aug. 25, 2003) (avoiding the issue).
270. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 n.9 (1984); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944).
271. Compare Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002) (finding waiver where the state removed the case to federal court),
272. and Porto Rico v. Ramos, 232 U.S. 627, 631 (1914) (finding waiver where Puerto Rico petitioned to become a party),
273. with Coll. Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999) (abolishing the doctrine of constructive waiver of immunity based on a state's participation in a federal regulatory scheme),
274. and Smith v. Reeves, 178 U.S. 436, 441 (1900) (refusing to find consent to suit in federal court based on a state's consent to suit in state court).
275. Fla. Prepaid, 527 U.S. at 687.
276. See, e.g., Bd. of Educ. v. Nancy E. ex rel. Kelly E., 207 F.3d 931, 934 (7th Cir. 2000) (holding prudential standing requirements to be nonjurisdictional).
277. See Burton v. Stewart, 549 U.S. 147 (2007) (per curiam) ("[U]nder AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it.").
278. The Court has avoided resolving whether appellate exhaustion is jurisdictional. See Adams v. Robertson, 520 U.S. 83, 90 (1997);
279. Yee v. City of Escondido, 503 U.S. 519, 533 (1992);
280. Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 79 (1988).
281. But see Carlson v. Green, 446 U.S. 14, 17 n.2 (1980) (stating that the Court can decide issues that were not presented below when the respondent does not object, the issue was squarely presented and fully briefed, and it was an important, recurring issue).