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Structuring Jurisdictional Rules and Standards

65 Vanderbilt Law Review En Banc 31 (2012)

University of Toledo Legal Studies Research Paper No. 2012-21

14 Pages Posted: 15 Jun 2012 Last revised: 19 Feb 2013

Scott Dodson

University of California Hastings College of the Law

Elizabeth Y. McCuskey

University of Toledo College of Law; Center for Health Law Studies

Date Written: June 13, 2012

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.

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

Suggested Citation

Dodson, Scott and McCuskey, Elizabeth Y., Structuring Jurisdictional Rules and Standards (June 13, 2012). 65 Vanderbilt Law Review En Banc 31 (2012); University of Toledo Legal Studies Research Paper No. 2012-21. Available at SSRN: https://ssrn.com/abstract=2083845

Scott Dodson (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://https://www.uchastings.edu/faculty-administration/faculty/dodson/index.html

Elizabeth McCuskey

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

HOME PAGE: http://www.utoledo.edu/law/faculty/fulltime/mccuskey.html

Center for Health Law Studies ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

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