Statutory Genres: Substance, Procedure, Jurisdiction

Abstract

To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effects on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This article offers the first systematic comparison of two types of legal characterization that have figured prominently in major recent Supreme Court decisions: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. Doctrine on the latter distinction has coalesced to win surprising consensus in recent years, while issues relating to the former distinction have continued to divide the Court. The article shows how, despite these differences, doctrine in each area is an example of the same activity — identification of the “genre” or kind to which particular legal texts belong — and therefore also an aspect of legal interpretation, although the Court has never explicitly recognized as much. The analysis helps to explain the relative success of recent jurisdictional-characterization doctrine, compared to Erie doctrine, and indicates specific new lines of development for both doctrinal areas. More broadly, the comparison suggests why purely formalist approaches to legal characterization — insistence on bright-line rules for distinguishing other types of legal rules — are both perennially attractive and inevitably inadequate.