Instrument Choice in Federal Court Jurisdiction: Rules, Standards, and Discretion
Jonathan Remy Nash
Emory University School of Law
February 15, 2010
Emory Public Law Research Paper No. 10-92
Emory Law and Economics Research Paper No. 10-59
Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but they have not recognized the relationship to the rule-standard distinction, nor more importantly have they considered the importance of where discretion enters the jurisdictional calculus. In this Article, I argue that predictability and efficiency make it normatively desirable to have rules predominate jurisdictional boundaries, and thus to leave standards – through discretion – to dominate the landscape of abstention. I also argue that the effect of a standard-based jurisdictional boundary may be substantially replicated – to the extent that the metric is the ultimate question of whether the case will be heard in federal court – by having a rule determine the jurisdictional boundary and then giving the federal court discretion to abstain from exercising that jurisdiction, where the courts’ discretionary standard for abstention in the second setting closely resembles the standard used to define the jurisdictional boundary in the first setting. Given this substantial equivalence, migration of the standard from the jurisdictional boundary to abstention is normatively desirable.
Number of Pages in PDF File: 47
Keywords: Federal courts, Federal jurisdiction, Rules and standards, Instrument choice, Doctrinal choice, Federalism
JEL Classification: K40, K41working papers series
Date posted: February 17, 2010
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