Law Review Article: Jurisdictional Discovery in United States Federal Courts

For those interested in discovery, Dr. S.I. Strong, Professor of Law at the University of Missouri and contributor to this blog, wrote recently an excellent article entitled “Jurisdictional Discovery in United States Federal Courts.” The piece appears in 67 Washington and Lee Law Review 489 (2010). Here is the abstract:

Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court’s inherent power to determine its own jurisdiction. The device is also inextricably linked to complex constitutional and legislative policies regarding the jurisdictional reach of U.S. federal courts. The complicated and often hidden aspects of jurisdictional discovery make analysis difficult, and measures that may seem acceptable in theory turn out to be highly problematic in practice. Indeed, the concept of “limited jurisdictional discovery” has disappeared as plaintiffs request – and judges routinely permit – extensive and expensive discovery before defendants are even determined to be properly in front of the court.

The Article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the Article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes by outlining several judicial and legislative reforms that would improve the means by which U.S. federal courts establish jurisdiction.

Although jurisdictional discovery is occasionally discussed in limited, subject-specific contexts, the device has not been subject to a comprehensive, in-depth analysis since the 1970s, which means that this Article fills a major gap in the literature. Furthermore, the piece is particularly timely given several recent petitions for certiorari to resolve ambiguities and circuit splits in this area of law as well as recent Supreme Court precedents regarding pleadings standards and the absence of jurisdictional hierarchies.

The paper can be downloaded here.