Structuring Jurisdictional Rules and Standards
University of California Hastings College of the Law
Elizabeth Y. McCuskey
University of Toledo College of Law
June 13, 2012
65 Vanderbilt Law Review En Banc 31 (2012)
University of Toledo Legal Studies Research Paper No. 2012-21
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 questionAccepted Paper Series
Date posted: June 15, 2012 ; Last revised: February 19, 2013
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