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Instrument Choice in Federal Court Jurisdiction: Rules, Standards, and Discretion

47 Pages Posted: 17 Feb 2010  

Jonathan Remy Nash

Emory University School of Law

Date Written: February 15, 2010


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.

Keywords: Federal courts, Federal jurisdiction, Rules and standards, Instrument choice, Doctrinal choice, Federalism

JEL Classification: K40, K41

Suggested Citation

Nash, Jonathan Remy, Instrument Choice in Federal Court Jurisdiction: Rules, Standards, and Discretion (February 15, 2010). Emory Public Law Research Paper No. 10-92; Emory Law and Economics Research Paper No. 10-59. Available at SSRN: or

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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