Structuring Jurisdictional Rules and Standards

Abstract:     
This essay, for Vanderbilt Law Review En Banc, critically assesses Jonathan Remy Nash’s article, "On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction," which proposes to use rules to demarcate jurisdictional boundaries at the front end while "migrating" standards into a discretionary abstention phase at the back end. While we believe Nash's cause is worthy, and while we applaud his creativity, we think his proposal suffers from ambiguous definitions of “rules” and “standards” and assumes that clear and simple “rules” are actually attainable in jurisdictional doctrine. We also show that Nash's proposal works only with a broad boundary rule, which would erode the efficiency and predictability gains he seeks. In addition, Nash’s proposal to migrate standards to a discretionary abstention stage would generate its own costs at both the district and appellate levels. We conclude that Nash’s innovative proposal is most valuable as a reclassification of existing federal question doctrine into a more transparent blend of mandates and discretion.

Number of Pages in PDF File: 14

Keywords: jurisdiction, grable, mottley, well-pleaded, jurisdictional, rules, standards, abstention, federal question

Accepted Paper Series