For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively allows courts to establish their own jurisdiction simply by concluding that they possess it, critics of the power-based conception contend that the definition no longer provides a descriptively plausible or conceptually coherent account of jurisdiction’s identity.
This Article defends the traditional power-based conception of jurisdiction’s identity as both conceptually coherent and normatively desirable. The key to reconciling jurisdiction-as-power with the bootstrap doctrine is to recognize that different criteria may be appropriate for different decision makers at different stages of the adjudicatory process. From the perspective of the rendering court, the applicable jurisdictional rules supply the sole criteria of legal validity. A conscientious judge seeking to work within the confines of her own authority has no discretion to ignore jurisdictional limits or to proceed to a final judgment unless she determines that jurisdiction actually exists. But from the perspective of a later court called upon to recognize an earlier court’s judgment, the criteria of validity are supplied instead by the bootstrap doctrine. That doctrine would sometimes require a later court to act as if jurisdiction were present in the original proceeding even if it was not. But such “as if” exceptions are a familiar part of our law and are not generally understood to supplant or displace the underlying legal rules.
The power-based conception of jurisdiction is not only descriptively plausible and conceptually coherent; it also facilitates jurisdiction’s distinctive role in structuring and allocating decision-making authority between different actors and institutions. Understanding jurisdiction as power can also lead to a deeper understanding of jurisdiction’s necessary effects and illustrate why several of the effects often associated with jurisdiction—such as nonwaivability and insusceptibility to equitable exceptions—are not, in fact, essential to jurisdiction’s identity. Finally, a clearer understanding of jurisdiction’s identity as the “power” of a rendering court can also help inform and clarify various jurisdictional doctrines and lead to a better understanding of the federal judiciary’s role in the constitutional structure.