Structuring Jurisdictional Rules and Standards

Authors

Scott Dodson
Elizabeth McCuskey, Boston University School of LawFollow

Document Type

Article

Publication Date

2012

Publisher

Vanderbilt University Law School

Language

en-US

Abstract

Jonathan Remy Nash's article, On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction, bravely tackles and creatively merges-the dual debates over rules versus standards and the ideal contours of federal jurisdiction.' He proposes a revised regime in which rules define jurisdictional boundaries at the front end, while standards "migrate" into a discretionary abstention phase at the back end.² This realignment, Nash argues, optimizes efficiency and predictability by placing a bright-line rule at the jurisdictional threshold, while promoting federalism by establishing a safety net that applies standards to claims that cross the threshold. ³ In this way, Nash hopes to have his "jurisdictional cake and eat it, too."

Importantly, Nash does not purport to alter the substance of jurisdictional requirements; rather, he seeks primarily to reorder them and to recharacterize them as either mandatory or discretionary. For federal question jurisdiction, for example, Nash accepts the requirements of existing doctrine: that the well-pleaded complaint must show a substantial federal issue that is central to the claim.⁵ Nash's primary contribution is to reorganize these features of federal question jurisdiction into front-end, mandatory rules (like the wellpleaded complaint rule) and back-end, discretionary abstention (like parts of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing⁶).

The pursuit of a happy rules/standards coupling is a worthy endeavor. Nash's creative proposal for coexistence, rather than choosing sides, is profitable not only in its mixing of rules and standards, but also in that it begins to match form to function on a more precise scale by segregating rules and standards into grants and discretionary abstentions. Segregation has the added benefits of making judges apply jurisdictional doctrine more consciously and of improving transparency to litigants and the legal community.

oving transparency to litigants and the legal community. In its details, however, Nash's proposal for reshaping federal question jurisdiction suffers from underdeveloped premises and unanticipated potential effects. On the premises, Nash's proposal both uses ambiguous definitions of "rules" and "standards" and assumes that clear and simple "rules" are actually attainable in jurisdictional doctrine. Regarding unanticipated potential effects, the proposal would only work with a broad boundary rule, which would erode efficiency and predictability. 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. We applaud this improved transparency and urge others to read Nash's proposal in this light.

Recommended Citation

Scott Dodson & Elizabeth McCuskey, Structuring Jurisdictional Rules and Standards , in 65 Vanderbilt Law Review En Banc 31 (2012).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3680