Clear Rules - Not Necessarily Simple or Accessible Ones

Virginia Law Review In Brief, Vol. 97, pp. 13-22, May 2011

10 Pages Posted: 3 May 2011

Date Written: May 2, 2011

Abstract

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.

Keywords: jurisdiction, subject matter jurisdiction, jurisdictional rules, federal courts, civil procedure, legal reform, legal complexity

Suggested Citation

Mulligan, Lumen N., Clear Rules - Not Necessarily Simple or Accessible Ones (May 2, 2011). Virginia Law Review In Brief, Vol. 97, pp. 13-22, May 2011. Available at SSRN: https://ssrn.com/abstract=1829562 or http://dx.doi.org/10.2139/ssrn.1829562

Lumen N. Mulligan (Contact Author)

University of Kansas Law School ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States
785-864-9219 (Phone)

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