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February 26, 2004

Comments

In my humble opinion, Eugene's post ain't worth much. Stick to Sasha's -- though her discussion of the Klein is maddeningly oblique. (Sasha writes: "The Supreme Court has only invalidated a Congressional withdrawal of jurisdiction once, in United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), which is confusing and hard to interpret."). Klein basically stands for the proposition that Congress cannot withdraw jurisdiction over a case once the case is in motion.

In other words, Congress can't say: Supremes, you have jurisdiction over X cases, but, having seen an X case filed, withdraw that jurisdiction to prevent the Surpremes from deciding the already-filed case. (Klein actually dealt with presidential pardons after the Civil War, but I think the principle can be reasonably extended to any active case.)

One further note: It's not mentioned by either Sasha or Eugene, but several well-regarded and well-known (in legal circles*) commentators have opined that Congress may have far less power to withdraw jurisdiction than Art. III, Sec. 2 may imply. This is not a well-developed area of the law.

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*E.g., Wright & Miller, whose names are as familiar to lawyers as Siegfried's & Roy's names are familiar to the general populace. By the way, I hear Siegfried may be leaving Roy . . .

"though her discussion of the Klein"

Sorry, that should be "Klein decision."

Stick to Sasha's -- though her discussion of the Klein is maddeningly oblique.

His, yes?

And don't worry, Moe. They may be legal eagles, but can they stand up to your mighty Kung Fu Action Grip? I didn't think so!

His, yes?

Hmm. That don't look like no lady, does it?

Bad assumption. Sorry.

Klein may actually stand for a narrower proposition than that: Congress might be able to withdraw jurisdiction, but once it grants jurisdiction it must grant jurisdiction to hear all of the case. In other words, it cannot dictate the outcome of the case, only whether it may be heard at all.

I have a blurb on my blog, fwiw.

Klein may actually stand for a narrower proposition than that: Congress might be able to withdraw jurisdiction, but once it grants jurisdiction it must grant jurisdiction to hear all of the case.

I agree that this is a reasonable reading of Klein -- though I'm not sure how much it differs from the reading I offered above. But I'm not even close to an expert on Con Law issues generally, so maybe I'm missing something.

I'd commend the Ichian's blog post, btw. From this lawyer's perspective, it's a better treatment of the issue than that provided by either of the Volohks.

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