Stanford Law Review
Frederic M. Bloom, Jurisdiction's Noble Lie, 61 Stan. L. Rev. 971 (2009), available at https://scholar.law.colorado.edu/faculty-articles/262.
This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would.
To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction's foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid front. This Article aims to prove as much.
This Article then examines both the flexibility and the ruse. It supports the first with two uncommon jurisdictional theories--one that shows how pragmatics, remedial context, and rights-accommodation permit courts to reach smart equilibriums; another that details the cultural, "spatial," and federalist value of jurisdictional malleability. It then explains the second through more conditional claims about the functional, deliberative, and structural benefits of jurisdiction's long-running trick This study does not mean to excuse the inexcusable. It hopes instead to offer new insight on an old problem. And it helps to make sense of why jurisdiction's lie has so long endured.
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