The complexity of jurisdictional clarity

Virginia Law Review

Volumn 97, Issue 1, 2011, Pages 1-59

  Dodson, Scott ^a  

^a The College of William and Mary   (United States)

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EID: 79955744308     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (387)

1. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 466 (1897).
2. See Morrison v. Nat'l Austl. Bank, 130 S. Ct. 2869, 2877-78 (2010) (considering jurisdictionality of questions of the extraterritorial reach of a statute);
3. Dolan v. United States, 130 S. Ct. 2533, 2538-39 (2010) (determining jurisdictionality of the ninety-day deadline to order restitution under the Mandatory Victims Restitution Act, 18 U.S.C. § 3664(d)(5) (2006));
4. United Student Aid Funds v. Espinosa, 130 S. Ct. 1367, 1379 (2010) (assessing jurisdictionality of the precondition to a bankruptcy discharge of a student loan debt that the court find "undue hardship");
5. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1245-47 (2010) (analyzing jurisdictionality of 17 U.S.C. § 411(a));
6. Hertz Corp. v. Friend, 130 S. Ct. 1181, 1194-95 (2010) (considering how to determine a corporation's principal place of business for diversity citizenship purposes);
7. Kucana v. Holder, 130 S. Ct. 827, 833-40 (2010) (examining appellate jurisdiction over discretionary actions by the Attorney General in immigration proceedings);
8. Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 130 S. Ct. 584, 595-96 (2009) (deciding jurisdictionality of the Railway Labor Act's conference requirement);
9. Mohawk Indus. v. Carpenter, 130 S. Ct. 599, 606-07 (2009) (assessing appellate jurisdiction over an interlocutory appeal from a privilege order).
10. Hertz, 130 S. Ct. at 1192.
11. See infra text accompanying notes 25-27.
12. John F. Preis, Jurisdiction and Discretion in Hybrid Law Cases, 75 U. Cin. L. Rev. 145, 167 (2006).
13. Martha A. Field, The Uncertain Nature of Federal Jurisdiction, 22 Wm. & Mary L. Rev. 683, 683 (1981).
14. I note that "jurisdiction" is a word of many meanings. See, e.g., Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-90 (1998) (noting the importance of precision in applying the "jurisdictional" label). Here and throughout, I mean to refer only to subject-matter jurisdiction rather than personal jurisdiction.
15. See Alex Lees, Note, The Jurisdictional Label: Use and Misuse, 58 Stan. L. Rev. 1457, 1460 (2006).
16. See Gene R. Nichol, The Roberts Court and Access to Justice, 59 Case W. Res. L. Rev. 821 (2009).
17. See Kontrick v. Ryan, 540 U.S. 443, 455 (2004).
18. For excellent expositions of jurisdiction as distinguished from merits and procedure, see Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003);
19. Howard M. Wasserman, Jurisdiction, Merits, and Procedure: Thoughts on a Trichotomy, 102 Nw. U. L. Rev. 1547 (2008).
20. I note that the Court has held that a court can dismiss a case on non-jurisdictional grounds before it determines if it has subject-matter jurisdiction. See, e.g., Sinochem Int'l Co. v. Malay. Int'l Shipping Corp., 549 U.S. 422, 436 (2007).
21. For more on the implications of decisional sequencing on jurisdictional issues, see Kevin M. Clermont, Decisional Sequencing: Limitations from Jurisdictional Primacy and Intrasuit Preclusion (Cornell Law Faculty Working Papers, Paper No. 77, 2010), available at http://scholarship.law.cornell.edu/ cgi/viewcontent.cgi?article=1080&context=clsops-papers.
22. See Barry Friedman, A Revisionist Theory of Abstention, 88 Mich. L. Rev. 530, 550-54 (1989). That said, and as I argue below, private values can be important to jurisdictional demarcations as well. In addition, the costs to individual litigants from harsh jurisdictional effects are private concerns that inform jurisdictional thinking. These private values further complicate the ideal of jurisdictional clarity. See infra text accompanying notes 137-48.
23. For more detailed explorations of jurisdictionality, see Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra L. Rev. 1, 36-37 (1994);
24. Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. Rev. 55, 60 (2008);
25. Lee, supra note 10, at 1613-21.
26. Dodson, supra note 13, at 56. It appears that, in the early years of American courts, subject-matter jurisdiction was waivable in certain instances, and courts relied almost exclusively on the pleadings to determine jurisdiction without holding detailed factual hearings. See Michael G. Collins, Jurisdictional Exceptionalism, 93 Va. L. Rev. 1829, 1836-43 (2007).
27. See Eric Kades, The Law & Economics of Jurisdiction 4 (William & Mary Law Sch., Working Paper No. 09-11, 2009), available at http://ssrn.com/ abstract=1431959 ("[T]he complexity of federal jurisdiction likely results in many unintentional, erroneous federal court filings."). I should note that if the parity between federal and state courts is high, jurisdictional uncertainty may simply cause plaintiffs to choose state recourt, where concurrent jurisdiction exists, to avoid the risk of an erroneous jurisdictional filing. As a result, jurisdictional uncertainty may not result in substantially more filing errors. But, "these same convoluted rules of jurisdiction, turning as they frequently do on facts known by one party and difficult to discover by their adversary, create opportunities to exploit this asymmetric information intentionally and obtain two bites at the apple." Id.
28. Field, supra note 6, at 683-84.
29. Cf. Catherine T. Struve, Time and the Courts: What Deadlines and Their Treatment Tell Us About the Litigation System, 59 DePaul L. Rev. 601, 629-31 (2010) (discussing the importance of deadlines to lawyers and litigants).
30. See Preis, supra note 5, at 166. This study was based on circuit court determinations that federal jurisdiction was improperly invoked. Id. at 159.
31. See Daniel J. Meltzer, Jurisdiction and Discretion Revisited, 79 Notre Dame L. Rev. 1891, 1906 (2004) (discussing litigant need for predictability in jurisdictional rules). Some of this prospective waste is overstated because parties who litigate deep into the merits may know enough about each other's cases that settlement, rather than relitigation, becomes the most likely scenario.
32. Conversely, uncertainty tends to foster inaccuracy. One study, for example, found that roughly fifty-five percent of appellate cases on the "substantiality" component of federal "arising under" jurisdiction were reversals. See Preis, supra note 5, at 165.
33. Cf. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1176 (1989) ("Statutes that are seen as establishing rules of inadequate clarity or precision are criticized, on that account, as undemocratic-and, in the extreme, unconstitutional-because they leave too much to be decided by persons other than the people's representatives.").
34. See Lee, supra note 10, at 1622 (tying jurisdiction to legitimacy).
35. See Edward A. Purcell, Jr., Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870-1958, at 244-48 (1992).
36. See, e.g., Zechariah Chafee, Jr., Some Problems of Equity 310-16 (1950) (arguing that jurisdiction should be easily and readily ascertainable);
37. Field, supra note 6, at 683 ("One reason for jurisdictional rules to be clear and simple is that litigating at length over the proper forum in which to litigate is a poor use of limited judicial resources, expensive to the parties and to the public.");
38. Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles," 78 Va. L. Rev. 1769, 1794 (1992) ("[J]urisdictional uncertainty can surely lead to both a waste of judicial time and added expense to the litigants.").
39. Holmes Group v. Vornado Air Circulation Sys., 535 U.S. 826, 832 (2002) (extending the rule to federal counterclaims);
40. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) (applying the rule to federal defenses).
41. See Jack H. Friedenthal et al., Civil Procedure 22 (2d ed. 1993) ("The wellpleaded complaint rule fulfills a useful and necessary function. Given the limited nature of federal subject matter jurisdiction, it is essential that the existence of jurisdiction be determined at the outset, rather than being contingent upon what may occur at later stages in the litigation.");
42. Arthur R. Miller, Artful Pleading: A Doctrine in Search of Definition, 76 Tex. L. Rev. 1781, 1783 (1998) (explaining that the wellpleaded complaint rule "prevents the disruption, to both the system and the litigants, of shifting a case between state and federal fora in the middle of an action as federal issues arise or fall out").
43. See, e.g., Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 320-22 (2005) (Thomas, J., concurring) (urging a return to the simpler Holmes test for statutory "arising under" jurisdiction);
44. Grupo Dataflux v. Atlas Global Group, 541 U.S. 567, 582 (2004) ("Uncertainty regarding the question of jurisdiction is particularly undesirable, and collateral litigation on the point particularly wasteful.");
45. Holmes Group, 535 U.S. at 829-32 (extending the well-pleaded complaint rule to the exclusive patent jurisdiction of the Federal Circuit because a contrary rule "would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine, which serves as a 'quick rule of thumb' for resolving jurisdictional conflicts" (quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 11 (1983)));
46. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 621 (2002) (explaining, in adopting a bright-line waiver test for state sovereign immunity, that "jurisdictional rules should be clear");
47. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 549-56 (1995) (Thomas, J., concurring in judgment) (seeking a clear test for admiralty jurisdiction);
48. Missouri v. Jenkins, 495 U.S. 33, 50 (1990) (expressing a concern for "the stability and clarity of jurisdictional rules");
49. Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 350 n.27 (1985) (Brennan, J., dissenting) ("[J]urisdictional rules must be clear cut and cannot turn on indefinite notions of 'importance' or 'wide-ranging impact.' '[L]itigants ought to be able to apply a clear test to determine whether, as an exception to the general rule of appellate review, they must perfect an appeal directly to the Supreme Court.'" (quoting Heckler v. Edwards, 465 U.S. 870, 877 (1984)));
50. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 510 & n.7 (1975) (Rehnquist, J., dissenting) (seeking clarity for the finality rule in appellate jurisdiction and asserting that "[c]larity is to be desired in any statute, but in matters of jurisdiction, it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case" (quoting United States v. Sisson, 399 U.S. 267, 307 (1970))).
51. 130 S. Ct. 1181, 1190-95 (2010) (discussing 28 U.S.C. § 1332(c)(1), which deems a corporation to be a citizen of both its state of incorporation and the state "where it has its principal place of business").
52. Id. at 1191.
53. Id. at 1192.
54. Id. at 1193 (citations omitted);
55. see also id. at 1185-86 ("[W]e place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible.").
56. Cf. Laura E. Little, Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA L. Rev. 75, 114 (1998) (finding empirical evidence that federal-jurisdiction opinions have more obfuscatory linguistic devices than do substantive law opinions). (Pubitemid 128443576)
57. Am. Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). Notably, though, some have criticized even Justice Holmes's formulation as unclear. See Field, supra note 6, at 687-88 (making this point based on "the great flexibility that exists in determining whether a federal cause of action exists").
58. Smith v. Kan. City Title & Trust Co., 255 U.S. 180, 199 (1921);
59. id. at 214-15 (Holmes, J., dissenting) (adhering to his American Well Works formulation).
60. See Ann Woolhandler & Michael G. Collins, Federal Question Jurisdiction and Justice Holmes, 84 Notre Dame L. Rev. 2151, 2153 (2009) (claiming that Smith-type claims were the norm before the early 1900s).
61. Smith, 255 U.S. at 199 (allowing federal jurisdiction over a state claim dependent on the construction of federal law).
62. See Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 313-14 (2005).
63. Id. at 321 (Thomas, J., concurring).
64. See, e.g., Thomas v. Lane, 23 F. Cas. 957, 960 (Story, Circuit Justice, C.C.D. Me. 1813) (No. 13,902).
65. 46 U.S.C. § 30101 (2006).
66. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 268 (1972).
67. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995) (quoting Sisson v. Ruby, 497 U.S. 358, 364-65 (1990)).
68. Executive Jet Aviation and Grubart, the Court was interpreting the original language of the Extension of Admiralty Jurisdiction Act; the language has since changed stylistically. Compare Pub. L. No. 695, 62 Stat. 496, 496 (1948) (extending admiralty jurisdiction to "all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land"), with 46 U.S.C. § 30101 (2006) (stating that admiralty jurisdiction "includes cases of injury or damage, to a person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land").
69. Grubart, 513 U.S. at 549, 556 (Thomas, J., concurring in judgment).
70. Id. at 550 (Thomas, J., concurring in judgment).
71. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 485-86 (1975) (articulating standards-based exceptions to the finality rule);
72. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949) (articulating standards-based interpretations of "final").
73. For an indictment of the opacity of the current appellate-jurisdiction doctrine, see Adam N. Steinman, Reinventing Appellate Jurisdiction, 48 B.C. L. Rev. 1237, 1237-39 (2007).
74. See Field, supra note 6, at 696-98, 720 (arguing that the abstention doctrines are unclear).
75. 28 U.S.C. § 1367(c) (2006) (listing four factors courts should consider when determining whether to retain or decline supplemental jurisdiction).
76. See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 290 (1988) (stating that the requirements of standing are difficult to apply and "cannot be made easy");
77. cf. Field, supra note 6, at 709-10 ("[T]he criteria for justiciability are sufficiently elastic that it is ultimately unpredictable [in certain cases involving constitutional challenges to state criminal statutes].").
78. The well-pleaded complaint rule above is a good example. See supra text accompanying notes 25-26. Others have suggested that diversity jurisdiction is largely defined and clear. See Field, supra note 6, at 694 ("[D]iversity jurisdiction generally is unlike federal question jurisdiction in that many of its basic issues are clear and easy to apply.");
79. Jonathan R. Nash, Instrument Choice in Federal Court Jurisdiction: Rules, Standards, and Discretion 13 (Emory Univ. Sch. of Law, Pub. Law & Legal Theory Research Paper Series, Working Paper No. 10-92, 2009), available at http://ssrn.com/abstract=1553584 (arguing that, with a few exceptions, "it is very safe to say that rules dominate the boundaries of federal diversity jurisdiction under section 1332").
80. See Field, supra note 6, at 684 ("[T]he more one studies federal jurisdiction, the more forcefully one must conclude that much uncertainty surrounds the decision of many federal jurisdictional issues.").
81. Stare decisis may help explain Grable and Grubart, or at least why certain Justices joined in those decisions. See Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 317 (2005);
82. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 554 (1995) (Thomas, J., concurring in judgment).
83. See Field, supra note 6, at 724 ("[T]he flexibility the jurisdictional rules provide in their undeveloped state can prove useful to judges, allowing them to dispose of difficult cases without having directly to discuss the moral, social, or political value judgments behind those dispositions.").
84. See Richard D. Freer, Of Rules and Standards: Reconciling Statutory Limitations on "Arising Under" Jurisdiction, 82 Ind. L.J. 309, 342 (2007) ("Though many still clamor for application of the Holmes test for centrality, that test just does not work⋯ . [It] fail[s] ⋯ to ensure a federal trial forum, with federal expertise, for the sensitive interpretation of federal law, free from state-court biases.").
85. Longstanding congressional silence in the face of a consistent judicial interpretation of a statute can imply a congressional intent that the statutory language continue to be interpreted that way. See Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 593-94 (2004). In addition, some statutes seem themselves to be invitations for jurisdictional uncertainty. See, e.g., 28 U.S.C. § 1367(c)(4) (2006) (allowing courts to decline to exercise supplemental jurisdiction if, in "exceptional circumstances," there are "compelling reasons").
86. See Frederic M. Bloom, Jurisdiction's Noble Lie, 61 Stan. L. Rev. 971, 995-96 (2009) (arguing that jurisdictional rhetoric can be intentionally misleading, but for salutary purposes);
87. Little, supra note 32, at 129-39 (suggesting several explanations for the high level of obfuscatory language in federal jurisdiction opinions).
88. For a very small sampling of the rich literature exploring rules and standards generally, see Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (1991);
89. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 557 (1992);
90. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685 (1976);
91. Scalia, supra note 21;
92. Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 379 (1985);
93. Seana Valentine Shiffrin, Inducing Moral Deliberation: On the Occasional Virtues of Fog, 123 Harv. L. Rev. 1214 (2010);
94. Kathleen M. Sullivan, The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992);
95. Cass R. Sunstein, Problems with Rules, 83 Cal. L. Rev. 953 (1995).
96. For recent attempts to adapt that debate to jurisdictional doctrine, see Freer, supra note 53;
97. Preis, supra note 5, at 167-92;
98. Nash, supra note 49.
99. See Margaret Jane Radin, Presumptive Positivism and Trivial Cases, 14 Harv. J.L. & Pub. Pol'y 823, 828-32 (1991) (stating that rules and standards themselves lack precise definition or categorization);
100. Jeffrey R. Lax, Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law 10-11 (June 9, 2009) (unpublished manuscript, available at www.columbia.edu/~jrl2124/Rules%20vs%20Standards.pdf) (asserting that academic attempts to distinguish between rules and standards are inherently difficult). Often, the terms are conceptualized not as binary but rather as nodes on a continuum, existing with other nodes as well. See, e.g., Sunstein, supra note 56, at 963-64 (including "factors");
101. Legal Theory Lexicon 026: Rules, Standards, and Principles, http://lsolum.typepad.com/legal-theory-lexicon/2004/03/legal-theory-le-3.html (Mar. 7, 2004) (including "principles").
102. Larry Alexander, Incomplete Theorizing: A Review Essay of Cass R. Sunstein's Legal Reasoning and Political Conflict, 72 Notre Dame L. Rev. 531, 541 (1997). In this Part, I use the term "rule" in the narrow sense of the term as it is used in the rules versus standards conversation. Elsewhere, though, I use it in the generic sense that legal "rules" generally encompass all kinds of norm codification, including tests based upon standards.
103. See Sullivan, supra note 56, at 58.
104. See Alexander, supra note 58, at 541-42.
105. Freer, supra note 53, at 311 ("A rule affords the decisionmaker no discretion, but cabins its inquiry to whether a given set of facts exists. A standard, in contrast, affords the decisionmaker greater discretion by prescribing a series of relevant factors to be weighed in view of a policy goal.");
106. Sullivan, supra note 56, at 58 (explaining that a rule "binds a decisionmaker" to a particular outcome if certain delimited facts are established).
107. See Sullivan, supra note 56, at 58-59 (asserting that a standard allows for consideration of all facts);
108. Sunstein, supra note 56, at 965 (explaining that the application of a standard can only be done post hoc).
109. See Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 398 (2005).
110. Alexander, supra note 58, at 543. The normative positions are generally regarded as "formalist" (those who urge judges to decide cases based on rules) and "instrumentalist" (those who urge judges to decide cases based on standards). See, e.g., Larry Alexander, "With Me, It's All er Nuthin'": Formalism in Law and Morality, 66 U. Chi. L. Rev. 530, 531 (1999).
111. See Russell B. Korobkin, Behavior Analysis and Legal Form: Rules vs. Standards Revisited, 79 Or. L. Rev. 23, 36-39 (2000).
112. But see Shiffrin, supra note 56, at 1220-21 (suggesting that, at least in some contexts, standards can reduce primary actor failure by forcing primary actors to think more carefully about their conduct).
113. See Schauer, supra note 56, at 229-30;
114. Alexander, supra note 58, at 542-43;
115. Kaplow, supra note 56, at 571, 581.
116. Sullivan, supra note 56, at 58-59.
117. Id.
118. see also Sunstein, supra note 56, at 957, 992-93.
119. Kaplow, supra note 56, at 591.
120. See Sunstein, supra note 56, at 992-96.
121. Id. at 995. The well-pleaded complaint rule, for example, can lead to artful pleading attempts by plaintiffs, a form of jurisdictional manipulation to avoid removal. Miller, supra note 26, at 1783.
122. Shiffrin, supra note 56, at 1217.
123. Peter H. Schuck, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1, 3 (1992).
124. See Sunstein, supra note 56, at 962.
125. Schuck, supra note 73, at 5-6.
126. 28 U.S.C. § 1332(d) (2006). One court described CAFA as an "opaque, baroque maze of interlocking cross-references." Lowery v. Ala. Power Co., 483 F.3d 1184, 1198 (11th Cir. 2007), abrogated in part by Pretka v. Kolter City Plaza II, 608 F.3d 744, 747 (11th Cir. 2010).
127. 28 U.S.C. § 1332(a) (2006).
128. See Erwin Chemerinsky, Federal Jurisdiction § 5.3 (5th ed. 2007).
129. See 28 U.S.C. § 1332(d)(4)(A)(i)(I) (2006).
130. See Isaac Ehrlich & Richard A. Posner, An Economic Analysis of Legal Rulemaking, 3 J. Legal Stud. 257, 261 (1974) (arguing that clarity and determinacy can be gauged from the number and simplicity of the facts to which legal consequences attach).
131. Scalia, supra note 21, at 1181. For a classic statement of this principle, see Oliver Wendell Holmes, Jr., The Common Law 113 (Belknap Press of Harvard Univ. Press 2009) (1881) ("A judge who has long sat at nisi prius ought gradually to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury.").
132. 545 U.S. 308, 313-14 (2005).
133. Freer, supra note 53, at 343 ("Grable does not countenance an indeterminate ad hoc jurisprudence. Rather, it seems likely that cases will fall into rather discernible categories⋯ . Rather than throwing the centrality assessment into chaos, the standard set forth in Grable seems workable and appropriate.").
134. Schlag, supra note 56, at 429.
135. U.S. Const. amend. I.
136. See Schenck v. United States, 249 U.S. 47, 52 (1919);
137. see also Dennis v. United States, 341 U.S. 494, 521 (1951) (Frankfurter, J., concurring in judgment) ("[T]here are those who find in the Constitution a wholly unfettered right of expression⋯ . The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest.").
138. Schlag, supra note 56, at 429.
139. 28 U.S.C. § 1291 (2006).
140. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 485-86 (1975) (listing exceptions);
141. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949) (characterizing certain interlocutory orders as "final");
142. see also David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 565-66 (1985) ("The word 'final' has an authoritative and crisp ring to it, but questions arise in its application⋯ . [E]ven words that appear sharp turn out, on close examination, to be fuzzy around the edges.").
143. For a detailed discussion of the history of the Court's interpretation of the statutory language, see Freer, supra note 53, at 311-17.
144. See supra text accompanying notes 61-64.
145. 28 U.S.C. § 1367(c) (2006).
146. Id. § 1332(d)(3) (2006).
147. By highlighting Redish and Shapiro, I do not mean to suggest that this is an exclusive dialogue;
148. other prominent voices have made important contributions to the conversation. See, e.g., Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?, 95 Nw. U. L. Rev. 1207, 1256-74 (2001) (exploring the historical legitimacy of judicial discretion to shape jurisdiction);
149. Barry Friedman, A Different Dialogue: The Supreme Court, Congress and Federal Jurisdiction, 85 Nw. U. L. Rev. 1, 48-49 (1990) (arguing that the boundaries of federal jurisdiction and the authority to define it evolve through a dialogue between Congress and the courts);
150. Meltzer, supra note 19, at 1892-95 (generally agreeing with Shapiro but charting a more middle-of-the-road approach);
151. Gene R. Shreve, Pragmatism Without Politics-A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767, 788-89 (arguing that courts can help shape jurisdictional contours for judicial administration reasons);
152. Nash, supra note 49, at 46 (arguing that jurisdictional grants should be rule-based and unsusceptible to discretion and that abstention doctrines should be discretionary based on standards). I hasten to add that the debate widens as the constitutional limits on congressional control of jurisdiction are considered. For a sampling of that related discussion, compare, for example, Martin H. Redish, Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 Nw. U. L. Rev. 143, 145 (1982) (arguing that Congress has extremely broad power to control the jurisdiction of the federal courts), and William W. Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 Ariz. L. Rev. 229, 260 (1973) (same), with, for example, Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 243 (1985) (arguing that federal courts have some jurisdiction that cannot be removed by Congress), and Tara Leigh Grove, The Structural Safeguards of Federal Jurisdiction, 124 Harv. L. Rev. (forthcoming 2011) (arguing that bicameralism and presentment requirements limit Congress's power).
153. See, e.g., Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71, 105-14 (1984) (arguing for little to no judicial authority over jurisdictional doctrine). To be clear, Redish's work challenges federalcourt discretion to decline jurisdiction despite a lack of congressional authorization to do so. He does not challenge (at least not on institutional lawlessness grounds) federal- court discretion to decline jurisdiction when authorized by Congress.
154. Shapiro, supra note 89, at 574-79;
155. see also David L. Shapiro, Reflections on the Allocation of Jurisdiction Between State and Federal Courts: A Response to "Reassessing the Allocation of Judicial Business Between State and Federal Courts," 78 Va. L. Rev. 1839, 1844-46 (1992) (amplifying the argument).
156. Shapiro, supra note 96, at 1841.
157. Shapiro, supra note 89, at 574.
158. David L. Shapiro, Foreword: A Cave Drawing for the Ages, 112 Harv. L. Rev. 1834, 1843 (1999).
159. Meltzer, supra note 19, at 1904;
160. Schuck, supra note 73, at 10-11.
161. Indeed, those who argue in favor of discretion and standards tend to argue that the vaguest and most complicated balancing test will tend to become clear over time by the simple process of precedent-building. See Shapiro, supra note 89, at 546-47, 589;
162. see also Kaplow, supra note 56, at 577-79 (acknowledging the argument).
163. See 28 U.S.C. § 1367(c) (2006).
164. See Field, supra note 6, at 709-10;
165. Fletcher, supra note 48, at 221 & n.4 (arguing that standing doctrine is incoherent because the requirements are difficult to apply).
166. See New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989) (stating that federal courts "must" abstain under the circumstances identified in Burford v. Sun Oil Co., 319 U.S. 315 (1943), and its progeny);
167. Younger v. Harris, 401 U.S. 37, 41 (1971).
168. Field, supra note 6, at 696 n.60, 720. But see Meltzer, supra note 19, at 1902-03 (expressing more sympathy for Younger).
169. Sunstein, supra note 56, at 992.
170. See Friedman, supra note 12, at 550-54.
171. See Bank of the United States v. Deveaux, 9 U.S. (5 Cranch) 61, 87 (1809);
172. cf. Henry J. Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483, 496-97 (1928) (arguing that a principal basis was to "protect creditors against legislation favorable to debtors");
173. Robert L. Jones, Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction, 82 N.Y.U. L. Rev. 997, 1049-52 (2007) (recounting the belief of some Framers that diversity jurisdiction would check the "unrestrained majoritarianism" of state juries). Modern justifications include preventing bias against out-of-state litigants, the desire to have federal courts contribute to the development of state law, the desire to alleviate overburdening state court dockets, and the availability of a forum that is perceived to be of a higher quality for the dispensation of justice. Redish, supra note 24, at 1800. But see Thomas D. Rowe, Jr., Abolishing Diversity Jurisdiction: Positive Side Effects and Potential for Further Reforms, 92 Harv. L. Rev. 963, 969-84 (1979) (pointing out significant benefits from abolishing general state-citizen diversity jurisdiction).
174. See, e.g., Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005).
175. Lees, supra note 8, at 1478-86.
176. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction.");
177. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 549 (1995) (Thomas, J., concurring in judgment) ("Vague and obscure rules may permit judicial power to reach beyond its constitutional and statutory limits ⋯ .").
178. See Shapiro, supra note 89, at 547.
179. See Field, supra note 6, at 718-19;
180. Redish, supra note 24, at 1831. For a novel argument for the concurrent sharing of jurisdiction in such cases, see Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211 (2004).
181. See Grable, 545 U.S. at 312 (asserting that most federal questions arise from federal causes of action).
182. See Freer, supra note 53, at 342 (arguing that the Holmes test fails "to ensure a federal trial forum, with federal expertise, for the sensitive interpretation of federal law, free from state-court biases");
183. Lumen N. Mulligan, A Unified Theory of 28 U.S.C. § 1331 Jurisdiction, 61 Vand. L. Rev. 1667, 1677-82 (2008) (recasting § 1331 jurisdiction as dependent upon either a federal cause of action or a federal right).
184. See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 479-83 (1975) (creating exceptions to the finality rule for appellate jurisdiction to broaden opportunities for federal issues to be heard in federal court).
185. Grable, 545 U.S. at 312 ("The doctrine captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law ⋯ .").
186. See, e.g., Field, supra note 6, at 720 (maligning Younger abstention for these reasons).
187. I do not take a normative position on which institution should draw jurisdictional lines, which has been debated at length elsewhere. See supra text accompanying notes 94-99. I explore those roles only from the perspective of their impact on jurisdictional clarity.
188. See, e.g., 28 U.S.C. § 1331 (2006) (using the term "arising under");
189. id. § 1367(a) (using the term "so related").
190. See, e.g., id. § 1332(a) (setting a dollar amount-in-controversy limit).
191. For example, by leaving the language of § 1331 unchanged for over 100 years, Congress has acquiesced in virtually all of the interpretive gloss the Court has placed on it. See Friedman, supra note 94, at 24 (stating that although "Congress's intent has had little ⋯ to do with" judicial interpretation of § 1331, "Congress generally has let the Court have its way without interference").
192. See Scalia, supra note 21, at 1182-83 (explaining these difficulties for courts).
193. 28 U.S.C. § 2072(a) (2006);
194. see also Fed. R. Civ. P. 1 (stating that the rules govern "procedure");
195. Fed. R. Civ. P. 82 (asserting that "[t]hese rules do not extend or limit the jurisdiction of the district courts"). There is an exception allowing rules to define what is "final" for purposes of appellate jurisdiction under § 1291. 28 U.S.C. § 2072(c) (2006)
196. The Supreme Court has made clear that it prefers the formal rulemaking process to the development of rules in the context of a particular case. See Mohawk Indus. v. Carpenter, 130 S. Ct. 599, 609 (2009).
197. See Redish, supra note 24, at 1769 (arguing that most modern jurisdictional doctrines have evolved incrementally rather than being promulgated in detail all at once).
198. Stare decisis arguably has less force in matters of federal jurisdiction as opposed to matters involving primary actors. See id. at 1770 n.6 ("Stare decisis may be especially important when legal issues directly affect the planning of primary social or economic behavior."). But lax stare decisis in jurisdictional doctrine creates more uncertainty and instability because of the greater likelihood of an abrupt change of direction.
199. There are exceptions. As Fred Schauer has noted, courts decide some cases without giving reasons, such as jury verdicts, trial-judge rulings on objections, and the denial of certiorari. Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 637 (1995). These are unlikely to come up often in the jurisdictional context. In addition, Congress occasionally codifies its reasons in bills. See, e.g., Class Action Fairness Act of 2005, Pub. L. No. 109-2 § 2, 119 Stat. 4, 4-5 (2005) (codified in scattered sections of 28 U.S.C.).
200. See U.S. Const. art III, § 1.
201. Friedman, supra note 94, at 48-49.
202. This assumption is not universally shared. See, e.g., id. at 27-28 (arguing that the courts have long tried to narrow diversity jurisdiction, while Congress has repeatedly chosen to retain it).
203. See text accompanying supra notes 120-22. A rare counterexample is the recent back-and-forth between the Court and Congress over the scope of habeas corpus for executive detainees. See Boumediene v. Bush, 553 U.S. 723, 733-36 (2008).
204. There are a few counter examples. The courts haphazardly defined corporate citizenship for diversity-jurisdiction purposes until Congress stepped in to define it more clearly. See 28 U.S.C. § 1332(c) (2006) (defining corporate citizenship);
205. Field, supra note 6, at 694 (discussing the doctrinal development).
206. See Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 572 (2005) (Stevens, J., dissenting) (calling the statute "opaque");
207. Redish, supra note 24, at 1822 (arguing that the "so related" test "is plagued by a good deal of circularity and question-begging"); Thomas D. Rowe, Jr. et al., Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L.J. 943, 961 (1991) (defending the statute but conceding that "codifying a complex area like supplemental jurisdiction ⋯ is itself complex business" and that "[t]he statute is concededly not perfect");
208. Symposium, A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367, 74 Ind. L.J. 1 (1998) (exploring doctrinal and practical intricacies of the supplemental-jurisdiction statute). But see Nash, supra note 49, at 24-25 (arguing that supplemental jurisdiction is fairly clear).
209. See infra text accompanying notes 164-80.
210. Little, supra note 32, at 76.
211. See supra text accompanying notes 15-24.
212. See, e.g., Little, supra note 32, at 78. There are some exceptions for jurisdictional doctrines, such as patent or admiralty jurisdiction, that have an impact on a specialized group of lay primary actors. See, e.g., Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 553 (1995) (Thomas, J., concurring) ("Such a test also introduces undesirable uncertainty into the affairs of private actors-even those involved in common maritime activities-who cannot predict whether or not their conduct may justify the exercise of admiralty jurisdiction."). In addition, jurisdictional statutes can be packaged in a way that is more appealing to laity, such as the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, 4-14 (2005) (codified in scattered sections of 28 U.S.C.), which was pitched by some as tort reform. See, e.g., 151 Cong. Rec. S1234-35, 1241-42 (daily ed. Feb. 10, 2005) (statements of Sens. Sessions and Voinovich).
213. See Schuck, supra note 73, at 26, 32.
214. See id. at 26, 33-34 (discussing these incentives in the context of substantive law).
215. 28 U.S.C. § 1367(a) (2006).
216. Scalia, supra note 21, at 1178. On a related note, Justice Scalia has stated that it is "[m]uch better, even at the expense of the mild substantive distortion that any generalization introduces, to have a clear, previously enunciated rule that one can point to in explanation of the decision." Id.;
217. see also Frank I. Michelman, Relative Constraint and Public Reason: What is "The Work We Expect of Law"?, 67 Brook. L. Rev. 963, 966 (2002) (arguing that decisionmakers should have several goals in mind: to resolve disputes, to establish predictable and stable legal doctrine, and to promote morally appropriate and justified outcomes).
218. Redish, supra note 24, at 1794.
219. 486 U.S. 196, 199-01 (1988).
220. Id. at 202.
221. See id.
222. 473 U.S. 305, 316 (1985).
223. Id. at 316-18 (quoting and discussing 28 U.S.C. § 1252).
224. Id. at 317.
225. I thank Howard Wasserman for raising this point.
226. Compare John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-36 (2008) (typing the Tucker Act period as a "more absolute" and unwaivable bar), with Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (typing the Title VII period as a nonjurisdictional and waivable limit).
227. U.S. Const. art. III, § 2.
228. 22 U.S. (1 Wheat.) 738, 823 (1824).
229. Act of Mar. 3, 1875, ch. 137 § 1, 18 Stat. 470, 470 (1875) (codified as amended at 28 U.S.C. § 1331 (2006)).
230. The Court in fact did so initially. See Donald L. Doernberg, There's No Reason for It; It's Just our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 Hastings L.J. 597, 603-04 (1987) (detailing the history);
231. Freer, supra note 53, at 313-17 (providing a similar discussion).
232. Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 153 (1908).
233. See City of Chi. v. Coll. of Int'l Surgeons, 522 U.S. 156, 184 (1997) (stating that cases "within the meaning of § 1331 compose a collection smaller than the one fitting within the similarly worded Clause in Article III"). I note that there is some disagreement about the breadth of the Osborn rule, with some commentators taking an expansive view, see, e.g., John B. Oakley, Federal Jurisdiction and the Problem of the Litigative Unit: When Does What "Arise Under" Federal Law?, 76 Tex. L. Rev. 1829, 1832-33 (1998), and others taking a narrower view, see, e.g., Anthony J. Bellia Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 807-09 (2004). I assume for the illustrative purposes in this Article that the well-pleaded complaint rule is, as the Court seems to view it, a narrower grant of jurisdiction than Article III's "arising under" grant.
234. William Cohen, The Broken Compass: The Requirement that a Case Arise "Directly" Under Federal Law, 115 U. Pa. L. Rev. 890, 891 (1967) (explaining that interpreting the statutory grant co-extensively with Osborn would have been impractical because "arising under" cases would have flooded the federal courts).
235. 535 U.S. 826, 827 (2002).
236. Id. at 832.
237. Id. at 838 (Stevens, J., concurring).
238. Rochelle Cooper Dreyfuss, The Federal Circuit: A Case Study in Specialized Courts, 64 N.Y.U. L. Rev. 1, 25-30, 54 (1989).
239. See Field, supra note 6, at 722 ("Simplification of much jurisdictional doctrine would result from generally espousing the position that, where Congress has given concurrent jurisdiction, the federal courts should respect the parties' choice of forum.").
240. Justice Brennan has made this point in a different line-drawing case. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 349 (1985) (Brennan, J., dissenting) ("It is simply too burdensome for this Court to bear mandatory direct jurisdiction over every preliminary injunction, temporary restraining order, and other pretrial order in cases potentially implicating the constitutionality of federal statutes.").
241. See Dodson, supra note 13, at 56.
242. 546 U.S. 500, 503 (2006) (discussing 42 U.S.C. § 2000e(b)).
243. Id. at 514-16.
244. 130 S. Ct. 1237, 1241, 1244-45 (2010) (discussing 17 U.S.C. § 411(a)).
245. See infra text accompanying notes 232-35.
246. See Dodson, supra note 13, at 66-71.
247. This is a common problem of clear statement rules. See generally William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 Vand. L. Rev. 593 (1992) (cataloguing variants of clear statement rules and the levels of clarity required for each).
248. Arbaugh, 546 U.S. at 515 (quoting Zipes v. Trans World Airlines, 455 U.S. 385, 394 (1982)).
249. See Bowles v. Russell, 551 U.S. 205, 209-11 (2007).
250. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90 (1998).
251. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 135-36 (2008) (struggling to classify a statute of limitations that includes jurisdictional language).
252. See, e.g., Florida v. Powell, 130 S. Ct. 1195, 1202 (2010) (confronting the question of how clear a state court decision has to be on whether it relies on an independent and adequate state ground to preclude Supreme Court appellate jurisdiction).
253. See Dolan v. United States, 130 S. Ct. 2533, 2537-39 (2010) (determining that the ninety-day time limit in 18 U.S.C. § 3664(d)(5) is not jurisdictional);
254. United Student Aid Funds v. Espinosa, 130 S. Ct. 1367, 1377-78 (2010) (resolving whether various bankruptcy filing requirements are jurisdictional);
255. Reed Elsevier v. Muchnick, 130 S. Ct. 1237, 1241 (2010) (resolving the jurisdictionality of 17 U.S.C. § 411(a));
256. Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 130 S. Ct. 584, 597 (2009) (holding that the National Railroad Adjustment Board's conferencing requirement is nonjurisdictional).
257. See Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006) (presuming, absent a clear statement of jurisdictionality from Congress, that a statutory limitation did not restrict the jurisdiction of the federal courts);
258. Michigan v. Long, 463 U.S. 1032, 1044 (1983) (presuming, absent a clear statement that the state court decision rests upon an independent and adequate state ground, that the state court decided the issue according to federal law, rendering the decision reviewable by the U.S. Supreme Court).
259. For my own attempt to balance these difficult weightings in the removal context, see Dodson, supra note 13.
260. Arbaugh, 546 U.S. at 513-14 (adopting the presumption "mindful of the consequences of typing the fifteen-employee threshold a determinant of subject-matter jurisdiction").
261. For more on the Arbaugh presumption, see Stephen R. Brown, Hearing Congress's Jurisdictional Speech: Giving Meaning to the "Clearly- States" Test in Arbaugh v. Y & H Corp., 46 Willamette L. Rev. 33 (2009).
262. See Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 Cal. L. Rev. 95, 149-58 (2009) (identifying these factors and exploring the benefits of enlarged or contracted federal jurisdiction in general).
263. See Scott Dodson, Mandatory Rules, 61 Stan. L. Rev. 1, 19-20 (2008) (arguing that it is not).
264. Edelman v. Jordan, 415 U.S. 651, 678 (1974).
265. See Clark v. Barnard, 108 U.S. 436, 447-48 (1883).
266. College Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-81 (1999).
267. 535 U.S. 613, 616, 621 (2002).
268. Even in the context of removal, though, the Lapides rule can be uncertain. For example, does a state waive immunity if a non-state co-defendant removes the case in violation of the unanimity requirement for removal and the state fails to move to remand within the thirty-day deadline provided by the removal statute? See 28 U.S.C. § 1447(c) (2006) (imposing the thirty-day deadline for remand motions);
269. Chi., Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 247-48 (1900) (imposing the unanimity requirement).
270. Lapides, 535 U.S. at 622-23.
271. Id. at 622.
272. See H.L.A. Hart, The Concept of Law 128 (2d ed. 1994);
273. Schauer, supra note 56, at 196-206;
274. Sunstein, supra note 56, at 986-89.
275. 28 U.S.C. § 1257(a) (2006).
276. Id. § 1291.
277. Radio Station WOW v. Johnson, 326 U.S. 120, 124 (1945) (stating that "[c]onsiderations of English usage as well as those of judicial policy" suggest that the certiorari statute precludes review "where anything further remains to be determined by a State court, no matter how dissociated from the only federal issue").
278. Id. at 124.
279. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 479-83 (1975).
280. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
281. Id.
282. See Mohawk Indus. v. Carpenter, 130 S. Ct. 599, 609 (2009) (declining to extend the collateral-order doctrine in the case at bar but expressing willingness to do so in the context of a formal rule promulgated under the Rules Enabling Act).
283. Congress has left the relevant language unchanged since 1789, despite the interpretations that the Court has imposed. Compare An Act to Establish the Judicial Courts of the United States, ch. 20, § 22, 1 Stat. 73, 84 (1789) ("[F]inal decrees and judgments in civil actions in a district court ⋯ may be reexamined, and reversed or affirmed in a circuit court ⋯ ."), with 28 U.S.C. § 1291 (2006) ("The courts of appeals ⋯ shall have jurisdiction of appeals from all final decisions of the district courts of the United States ⋯ .").
284. 28 U.S.C. § 2072(c) (2006).
285. Cf. Sunstein, supra note 56, at 961 (stating that interpretation of rules necessarily involves discretion). There are some counterexamples. The statutory language deeming a corporation to be a citizen, for diversity jurisdiction purposes, of the state of its "principal place of business" was recently interpreted to mean, in most cases, the state where the corporation's headquarters is located. Hertz Corp. v. Friend, 130 S. Ct. 1181, 1185-86 (2010). That interpretation clarifies an ambiguous term in the statute that had produced some uncertainty in the lower courts.
286. For an excellent discussion of some of the issues surrounding the factual proof of jurisdiction, see Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973, 984-99 (2006).
287. S.I. Strong, Jurisdictional Discovery in United States Federal Courts, 67 Wash. & Lee L. Rev. 489, 505 (2010).
288. 28 U.S.C. § 1332(a) (2006).
289. See State Farm Mut. Auto. Ins. Co. v. Narvaez, 149 F.3d 1269, 1272 (10th Cir. 1998) (dismissing a claim for exactly the jurisdictional amount). But see De Aguilar v. Boeing Co., 47 F.3d 1404, 1408-12 (5th Cir. 1995) (allowing federal diversity jurisdiction when the plaintiff alleged less than the threshold amount if (1) the defendant shows that the actual contested amount exceeds the jurisdictional limit and (2) the plaintiff is unable to show that "it is certain that he will not be able to recover more" than alleged).
290. See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 347-48 (1977);
291. Healy v. Ratta, 292 U.S. 263, 270-71 (1934).
292. See Richard D. Freer, Civil Procedure § 4.5 (2d ed. 2009) (discussing the plaintiffviewpoint rule, the defendant-viewpoint rule, and the either-party rule);
293. Brittain Shaw McInnis, Comment, The $75,000 Question: What Is the Value of Injunctive Relief?, 6 Geo. Mason L. Rev. 1013, 1020-24 (1998). The choice between these viewpoint rules implicates the complexities of choice that I discuss above. See supra text accompanying notes 151-188.
294. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938).
295. Armistead M. Dobie, Jurisdictional Amount in the United States District Court, 38 Harv. L. Rev. 733, 734, 738 (1925) (noting that the determination of the amount in controversy can be "quite complex" and singling out injunctive relief as presenting a particularly difficult inquiry that is likely to yield "inconsistent and confusing" results).
296. Id. at 738.
297. Burns v. Anderson, 502 F.2d 970, 971 (5th Cir. 1974).
298. Id. at 972. The district court dismissed the case for lack of jurisdiction, and the Fifth Circuit ultimately affirmed. Id.
299. See Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).
300. Freer, supra note 206, § 4.5.
301. See id.
302. See 28 U.S.C. § 1332(d)(4)(A)(i)(I) (2006) (requiring the declination of CAFA diversity jurisdiction if, among other requirements, "greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed").
303. See id. § 1367(c)(2) (allowing declination of jurisdiction if the supplemental claim "substantially predominates over the claim or claims over which the district court has original jurisdiction").
304. See Bell v. Hood, 327 U.S. 678, 682-83 (1946);
305. see also Field, supra note 6, at 691-94 (explaining why the substantiality requirement is difficult in application).
306. For what it is worth, the Supreme Court appears to understand this. See Hertz Corp. v. Friend, 130 S. Ct. 1181, 1185-86 (2010) (choosing a test for corporate citizenship under the diversity statute in large part because of "the need for judicial administration of a jurisdictional statute to remain as simple as possible").
307. See supra text accompanying notes 15-24. Here, I treat judicial legitimacy as an instrumental value that flows from jurisdictional clarity, as opposed to a normative value flowing from a conceptualization of jurisdiction as power. The latter value relies on a conceptual distinction between jurisdictionality and non-jurisdictionality that has been forcefully criticized elsewhere. See Lee, supra note 10, at 1613-21.
308. See Holmes Group v. Vornado Air Circulation Sys., 535 U.S. 826, 838 (2002) (Stevens, J., concurring in part and concurring in the judgment) ("Requiring assessment of a defendant's motive in raising a patent counterclaim or the counterclaim's relative strength wastes judicial resources by inviting 'unhappy interactions between jurisdiction and the merits.'" (quoting Kennedy v. Wright, 851 F.2d 963, 968 (7th Cir. 1988)));
309. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 507-09 (1975) (Rehnquist, J., dissenting) (chastising the majority for its willingness to look at the merits as an influencing factor in appellate jurisdiction);
310. Wasserman, supra note 10, at 1548 (arguing that there should be no overlap between jurisdiction and merits).
311. Clermont, supra note 201, at 979-80 (proposing a solution for adjudicating factual disputes that affect both jurisdiction and the merits).
312. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978) ("It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon Fifederal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded.");
313. Lee, supra note 10, at 1615-21 (tying proper jurisdiction to enhanced legitimacy of judgment).
314. For examples, see supra text accompanying notes 151-88 (discussing the wellpleaded complaint rule, clear statement rules and presumptions, and waiver rules for state sovereign immunity).
315. See Lees, supra note 8, at 1460 (restricting jurisdictionality to rules that "operate[] to shift authority from one law-speaking institution to another").
316. See Shapiro, supra note 89, at 551.
317. Kontrick v. Ryan, 540 U.S. 443, 452 (2004) ("Only Congress may determine a lower federal court's subject-matter jurisdiction.").
318. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17 (2004) (dismissing a constitutional challenge to the Pledge of Allegiance on a novel prudential standing ground);
319. Neil S. Siegel, A Theory in Search of a Court, and Itself: Judicial Minimalism at the Supreme Court Bar, 103 Mich. L. Rev. 1951, 2009 (2005) (suggesting that the Court's legitimacy may have suffered from its artful dodge in Newdow);
320. see also Steven L. Winter, The Metaphor of Standing and the Problem of Self- Governance, 40 Stan. L. Rev. 1371, 1373 (1988) ("[Some commentators] have concluded that the doctrine of standing is either a judicial mask for the exercise of prudence to avoid decisionmaking or a sophisticated manipulation for the sub rosa decision of cases on their merits.").
321. See Eskridge & Frickey, supra note 170, at 598 (arguing that clear statement rules and interpretive presumptions suffer from countermajoritarian problems);
322. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 Sup. Ct. Rev. 343, 378 (2002) (describing arguments that judicial lawmaking raises legitimacy concerns on federalism and separation-of-powers grounds);
323. Redish, supra note 95, at 74-75 (arguing that abstention doctrines are illegitimate usurpations of congressional authority). But see Fitzgerald, supra note 94, at 1245 (arguing that Article III originally contemplated a judicial role for establishing and exercising jurisdiction). One might contend that judicial usurpation of jurisdiction is more offensive than judicial declination of jurisdiction because Congress acquiesces in-and perhaps even silently delegates to the court-a certain amount of judicial discretion to decline jurisdiction. Cf. Shapiro, supra note 99, at 1843 (suggesting that legislators may expect courts to fine-tune statutory commands through the process of interpretation). There is truth to that contention today, but it does not explain how the latter practice developed in the first place. For a novel argument attempting to reconcile some of these problems, see Friedman, supra note 94, at 2-3 (proposing a "dialogic" developmental process).
324. The purpose of diversity jurisdiction is to provide a neutral federal forum when state court bias is likely, but abstention doctrines can funnel such cases back to state court. See Jonathan Remy Nash, The Uneasy Case for Transjurisdictional Adjudication, 94 Va. L. Rev. 1869, 1899-904 (2008).
325. See, e.g., John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008) (holding the six-year limitations period for suits in the Court of Federal Claims to be a quasi-jurisdictional limitation sufficient to negate a purported waiver that would have allowed the suit to proceed).
326. Lees, supra note 8, at 1460.
327. The diversity statute is a prime example. See 28 U.S.C. § 1332(a) (2006). The solution might be for Congress just to be clearer with its jurisdictional legislation, but, as I have argued, that presents its own challenges. See supra text accompanying notes 120-22.
328. In one memorable case wholly within the federal-court system, the Seventh Circuit and Federal Circuit went toe-to-toe over the propriety of the other's jurisdiction in a patent case. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 806-07 (1988) (discussing the procedural history and finally resolving the disagreement).
329. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 65 (1989) ("[I]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)));
330. United States v. Bass, 404 U.S. 336, 349 (1971) ("In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.").
331. I note that the Court has used presumptions to overassert jurisdiction as well, see supra note 177, which may exacerbate any inter-institutional tension.
332. I rely primarily on logic, theory, example, and-when available-empirical evidence to support these claims. Sadly, few empirical studies are available. More empirical testing should be done to bear out my theoretical assessments.
333. See Doernberg, supra note 154, at 603-04;
334. Freer, supra note 53, at 311-17.
335. See supra text accompanying notes 227-28.
336. See supra text accompanying notes 157-63.
337. For more indictments of the well-pleaded complaint rule, see Cohen, supra note 157, at 915;
338. Doernberg, supra note 154, at 598-99 & n.12;
339. Redish, supra note 24, at 1794-95.
340. See, e.g., Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 312 (2005) (explaining that federal-question jurisdiction would enable such issues to come before judges with more expertise in federal law);
341. The American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 164-65 (1969) ("The federal courts have acquired a considerable expertness in the interpretation and application of federal law which would be lost if federal question cases were given to the state courts.");
342. Guido Calabresi, Federal and State Courts: Restoring a Workable Balance, 78 N.Y.U. L. Rev. 1293, 1304 (2003) (asserting that state judges "are not experts on federal law and, with great respect to them, they are not good at it");
343. Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1105-06 (1977) (arguing that federal courts are more solicitous of federal civil rights than state courts are). But see, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233, 256 (1988) (arguing that the debate over parity between state and federal courts is unclear and does not lend itself well to empirical testing); William B. Rubenstein, The Myth of Superiority, 16 Const. Comment. 599, 599-600 (1999) (arguing that "gay litigants seeking to establish and vindicate civil rights have generally fared better in state courts than they have in federal courts").
344. See Grable, 545 U.S. at 312 (referring to the "hope of uniformity");
345. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816);
346. see also Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157, 158 (1953) (asserting that federal jurisdiction is key to establishing uniformity of federal law). But see Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1639 (2008) (arguing that uniformity is overrated).
347. See The Federalist No. 80, at 535 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (predicting that states would not scrupulously protect federal interests);
348. James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643, 713 n.314 (2004) (describing how the Supreme Court has relied on perceptions of state-court hostility to federal interests in extending federal jurisdiction interests). But see, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 275 (1997) ("A doctrine based on the inherent inadequacy of state forums would run counter to basic principles of federalism.").
349. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 Cornell L. Rev. 581, 593-95 (1998) (showing that plaintiff win rates are lower in removed cases).
350. See Meltzer, supra note 19, at 1905.
351. This is a common failing of rules (as opposed to standards). See Sullivan, supra note 56, at 58;
352. Sunstein, supra note 56, at 992-93.
353. See Doernberg, supra note 154, at 652-53.
354. A district court does have discretion to decline to exercise supplemental jurisdiction over nondiverse state claims. See 28 U.S.C. § 1367(c) (2006).
355. See Freer, supra note 53, at 318. It is possible that the Supreme Court would ultimately hear such a case on appeal from the state courts. Mottley itself is a famous example. See Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467, 472-74 (1911) (hearing a federal defense on appeal from state court). But such cases are extremely rare given the Supreme Court's highly restricted docket.
356. For more on the accuracy costs of federal jurisdiction over state claims, see Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 Cornell L. Rev. 1672, 1674 n.3 (2003) (listing examples of erroneous federal-court interpretations of state law).
357. Cf. Meltzer, supra note 228, at 383-90 (arguing that Congress has not contemplated changes in litigation, federalism, and political structure when enacting many jurisdictional statutes).
358. Shapiro, supra note 96, at 1841.
359. See Shapiro, supra note 89, at 574 ("[C]ourts are functionally better adapted to engage in the necessary fine tuning [of jurisdictional rules] than is the legislature."). But see Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 Cardozo L. Rev. 1961, 1963 (2007) (questioning whether district courts can exercise broad discretion effectively in matters of procedure);
360. Strong, supra note 202, at 558-61 (discussing some of the problems of excessive judicial discretion in resolving jurisdictional issues).
361. See, e.g., William V. Luneburg, Justice Rehnquist, Statutory Interpretation, the Policies of Clear Statement, and Federal Jurisdiction, 58 Ind. L.J. 211, 228 (1983) ("[S]ection 1331 can be seen as a delegation of law-making power in the procedural area ⋯ .");
362. Shapiro, supra note 99, at 1843 ("[T]he legislature, in the light of centuries of experience, may have come to expect the process of interpretation to comprise elements of both agency (the court as applier of the legislature's mandates) and partnership (the court as fine tuner of the legislature's general, and sometimes overly general, proscriptions and commands) ⋯ ."). But see Scalia, supra note 21, at 1183 (arguing that the "reduction of vague congressional commands into rules that are less than a perfect fit is not a frustration of legislative intent because that is what courts have traditionally done, and hence what Congress anticipates when it legislates").
363. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 395-404 (1978);
364. Schuck, supra note 73, at 20-21.
365. Friedman, supra note 94, at 56 n.260.
366. Shiffrin, supra note 56, at 1221, 1223-25.
367. Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035, 1048 (1977). My thanks to Jay Tidmarsh for pointing out the parallel to dialectical federalism.
368. See Bell v. Hood, 327 U.S. 678, 681-82 (1946) (refusing to allow federal jurisdiction over a wholly meritless federal claim);
369. Shoshone Mining Co. v. Rutter, 177 U.S. 505, 513 (1900) (refusing to find jurisdiction when the federal claim consists solely of an incorporation of state law).
370. See Missouri v. Jenkins, 495 U.S. 33, 45-47 (1990) (elaborating on tolling principles).
371. Martin H. Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger, 70 Cal. L. Rev. 1159, 1182-83 (1982).
372. Nash, supra note 49, at 10 ("I will argue that rules are more appropriate in establishing the boundaries of statutory jurisdiction, while the place for standards lies in deciding whether or not to abstain.").
373. Id. at 6.
374. See 13D Charles Alan Wright et al., Federal Practice and Procedure § 3562 (3d ed. 2008) ("[T]he cases raising a serious question whether jurisdiction exists are comparatively rare.");
375. Friedman, supra note 94, at 56 ("Uncertainty tends to play itself out around the edges.");
376. Shapiro, supra note 96, at 1841 (arguing that "hard cases ⋯ exist primarily at the margins" and "that the overwhelming majority of jurisdictional questions are straightforward and readily resolved").
377. See Freer, supra note 53, at 342. That may not always have been the case. See Woolhandler & Collins, supra note 35, at 2153 (arguing that Grable-type claims were the norm in the nineteenth century).
378. It is a familiar hope that even uncertain doctrines will eventually result in greater clarity as the doctrine becomes concretized over time. See Shapiro, supra note 89, at 546-47, 589 (arguing that discretionary doctrines tend to obtain clarity through the process of precedent-building);
379. Sunstein, supra note 56, at 965 ("It is a familiar hope that standards will receive a degree of specification as they are interpreted ⋯ .");
380. cf. Meltzer, supra note 19, at 1907 (arguing that the Younger abstention doctrine developed "relatively determinate boundaries" over the course of "a reasonably short time").
381. My thanks to Jay Tidmarsh for a friendly amendment to this language.
382. 327 U.S. 678 (1946).
383. 177 U.S. 505 (1900).
384. See, e.g., Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005);
385. Smith v. Kan. City Title & Trust Co., 255 U.S. 180 (1921).
386. Henry Adams, The Education of Henry Adams 441 (1918).
387. Schuck, supra note 73, at 34-38.