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University of Nebraska Lincoln School of Law




Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted to sharpening litigants' vision of the proper jurisdiction.

But clarity is not costless. Bright-line jurisdictional rules have the potential to remand the desirable cases with the undesirable ones. In federal-question jurisdictional rules, for example, clarity is somewhat overvalued in theory and underachieved in practice. In theory, the constitutional and statutory bases for federal-question jurisdiction prescribe simply and broadly that jurisdiction exists over "all" actions "arising under" federal law.3 There exist compelling reasons to have federal courts adjudicate essential federal questions, even if those questions happen to arise through state-law claims. Therefore, many theoretically "clear" rules, like Justice Holmes's proposal that only federal claims "arise under" federal law,4 would improperly trim the intent of "arising under" jurisdiction and contravene the supposed benefits of the federal forum. In theory, then, important substance and systemic benefits may be unnecessarily sacrificed on the altar of clarity.

In practice, the word "clarity" seems to work much like the word "classy"-if you have to say it, it probably is not true, at least for federal-question jurisdiction. The Supreme Court's 2005 opinion in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing5 stands as a recent example. In Grable, the unanimous Court endeavored to synthesize the numerous doctrines governing jurisdiction over state-law claims raising federal questions (or "embedded" federal questions), and to resolve a circuit split over whether a federal private right of action must accompany the alleged embedded federal questions. 6 The Court decided that jurisdiction does not, in fact, require an underlying federal right of action, but that a right of action is relevant to determinations of "substantiality" and federalism.7 Grable thus represents the rejection of a bright-line jurisdictional rule in favor of a nuanced, discretionary one, making clear that the jurisdictional waters should remain murky.

Grable's rejection of a bright-line jurisdictional rule raises broader questions about clarity's role in federal-question jurisdiction doctrine and whether clarity in theory translates into clarity in practice. How have district courts reacted to the Supreme Court's clarification of doctrine and choice of a flexible rule? Has the clarification offered litigants a clearer picture for predicting jurisdiction?

This Article takes an initial step toward answering those questions by first arguing the clarity debate should focus on how jurisdictional rules appear in the eyes of their beholders and by then examining what Grable federal-question jurisdiction looks like from that perspective-as applied in federal court precedents. Part II questions the rationales for jurisdictional clarity and traces the gradual distillation of rules for removal jurisdiction over embedded federal-questions, detailing how Grable purported to "clarify" the proper interpretation of Merrell Dow Pharmaceuticals Inc. v. Thompson8 and state a unified jurisdictional rule.

Using Grable as an example, the Article then turns to an empirical study on the implementation of Grable's "clarified" rule. The study captures a snapshot of how federal district and appellate courts have reacted to the Grable Court's attempted clarification and choice of a nuanced rule over a bright-line one. Part III presents that study, examining a sample of decisions before and after Grable. The study identifies a mass of district court precedent "submerged" on court dockets, underscoring the possibility that conventional research offers an unrepresentative sample of precedent. Part III then uses those submerged precedents to trace trends in the rates of remand and reversal in the years before and after the Supreme Court announced Grable, illustrating the potential influence of clarifying opinions. Part IV builds on these theoretical discussions and empirical observations to describe obstacles currently diverting clarification and to suggest some modest steps that litigants, scholars, courts, and Congress might take to improve the availability of clarifying precedents and thereby enhance predictability.

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