Jurisdiction Stripping: Congress, Courts, And Litigation

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Congress regularly, and with increasing frequency, removes jurisdiction from the federal courts. This dissertation argues that the underlying motivation for doing so is to deny litigants access to the judicial system in response to the costs and policy disruption created by lawsuits filed against the federal government. This assertion runs counter to two longstanding assumptions held by most scholars: Congress rarely removes court review, and manipulations to judicial procedure are a congressional reaction to court ideology. The judiciary is a creature of the litigation process. In fundamental terms, this means that the incentives and economics of litigation are an integral part of institutional behavior whenever the judiciary is involved. Drawing upon two separate literatures, law and economics and strategic institutionalism, this dissertation argues that when it comes to congressional reaction to the courts, in particular congressional manipulation of court structure and procedure, the strategy, process, and economics of litigation must be considered. The research presented establishes the growing prevalence of jurisdictional removals, examines the underlying causal factors, and considers specific case studies of these trends. Jurisdiction stripping is largely an unstudied phenomenon, at least from an empirical perspective, and so this dissertation addresses the issues in two firstorder contexts: legislation that removes court jurisdiction from the entire federal system, and legislation that functionally eliminates jurisdiction from all other federal courts by allowing review only in the courts of the D.C. Circuit. The research is based upon two newly created databases which identify all such jurisdiction stripping public laws enacted from 1943 to 2004. A case study of jurisdiction stripping statutes in a single policy area, Forest Service wilderness designations, augments the empirical analyses. The research concludes that the operative variable in jurisdiction stripping is litigation pressure, captured by case filings, and the attendant costs imposed on a wide range of institutional actors when the government is forced to defend itself in court.

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