Clarity & Clarification: Grable Federal Questions in the Eyes of Their Beholders

73 Pages Posted: 8 Mar 2013

See all articles by Elizabeth Y. McCuskey

Elizabeth Y. McCuskey

Boston University - School of Public Health; Boston University - School of Law

Date Written: October 15, 2012


The quest for clarity in jurisdictional rules is as elusive as it is eternal. Jurists and scholars have long clamored for bright-line rules, aimed at making jurisdictional decisions easier for courts and more predictable for litigants. This article argues that the focus on inherent clarity in jurisdictional rule may have missed its mark. To best serve clarity’s goals, the real question is not the clarity inherent in the design of a rule, but whether its application can have predictability in the eyes of its beholders: litigants and district courts. Under this refocused vision of clarity, an ideal jurisdictional rule could embody both flexibility in structure and predictability in application.

To test whether this ideal translates into reality, the article turns to empirical investigation. The article studies remand decisions before and after Grable, in which the Supreme Court chose a flexible standard over a bright-line rule for federal-question jurisdiction. By examining both Westlaw and district court dockets, the study reveals a mass of “submerged precedents” – explained decisions available only on dockets. Accounting for these submerged precedents illustrates how the picture of decision-making changes based on where one looks for decisions.

Although Grable jurisdiction embodies a flexible standard, the study shows that appellate interpretation and district court implementation of that standard have kept Grable jurisdiction restrictive, or “slim”. These results suggest that increasing the availability of explained decisions and appellate review may accelerate the clarification process for jurisdictional standards.

Keywords: clarity, jurisdiction, jurisdictional, federal question, remand, removal, Grable, Empire, Gunn, Minton, rules and standards, docket, appellate review, discretion, federalism, case management, Supreme Court, district court

Suggested Citation

McCuskey, Elizabeth Y., Clarity & Clarification: Grable Federal Questions in the Eyes of Their Beholders (October 15, 2012). Nebraska Law Review, Vol. 91, No. 2, 2012, University of Toledo Legal Studies Research Paper No. 2013-06, Available at SSRN:

Elizabeth Y. McCuskey (Contact Author)

Boston University - School of Public Health ( email )

Boston, MA
United States

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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