Mark Moller (DePaul University College of Law) has posted Incidental Jurisdiction (14 Texas A&M Law Review __ (2026) (forthcoming)) (65 pages) on SSRN. Here is the abstract:
Federal courts have incidental, or implied, powers. On this there is general agreement among originalist researchers. But there is also wide consensus that, whatever incidental powers Article III courts enjoy, these powers do not include incidental subject matter jurisdiction. Article III must confer federal subject matter jurisdiction expressly.
The conventional wisdom against incidental jurisdiction, though, is entirely unexamined. It is also wrong as an original matter. This article presents new evidence that the express terms of Article III did not cash out the scope of federal subject matter jurisdiction. The outer boundaries of subject matter jurisdiction were defined, instead, by the original doctrine of incidental jurisdiction.
In an increasingly originalist era, recovering the doctrine of incidental jurisdiction does important work. At a minimum, this piece argues, incidental jurisdiction may offer the best originalist grounding for the doctrine of federal supplemental jurisdiction.
Posted at 6:09 AM