This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions.

Characterizing a factual issue as going to jurisdiction (the power or authority of a court to hear and resolve the dispute between the parties) or substantive merits of the cause of action (going to who should win the case and why) affects the time and manner in which that issue is adjudicated and resolved within the litigation process. It also implicates the basic positivist imperative of treating distinct legal conceptions in a distinct manner.

The solution is a plain-language, positive-law approach to the separation of jurisdiction and merits. A court determines its subject matter jurisdiction by examining the language of the jurisdiction-granting statute, the statute enacted pursuant to Congress' structural power and empowering the court to hear and resolve civil actions.

All other facts that may come into play in the case are relevant solely to the underlying substantive cause of action and to whether the plaintiff has established a violation of rights entitling her to relief. These facts, if disputed, await resolution at full trial on the merits.