Nonjurisdictionality or Inequity

Abstract

This short piece, written for the Northwestern University Law Review Colloquy, responds to Professor Scott Dodson's comment on Bowles v. Russell, titled Jurisdictionality and Bowles v. Russell. Dodson proposes to navigate a path between Justice Thomas's majority opinion and Justice Souter's dissent by embracing Thomas's use of mandatory and Souter's argument for deeming appellate deadlines nonjurisdictional. Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the mandatory aspect of Professor Dodson's proposal that concerns me; it leaves no room for equity absent the mercy of opposing counsel. I thus focus on the inequitable consequences of labeling a rule either jurisdictional or mandatory.

Keywords: Bowles v. Russell, jurisdiction, mandatory, nonjurisdictional, equitable, pro se litigants, habeas petition, Federal Rule of Appellate Procedure 4(a), FRAP 4(a)(6)