Norman W. Spaulding
Volume 77, Issue 2, 323-378
The purpose of jurisdictional rules is to provide reasonably clear signals about when a court does and does not have power over a case. Judging from the modern Supreme Court’s rules for determining jurisdiction, however, one would think jurisdictional rules need neither be clear nor consistent. From rules for determining standing, federal question jurisdiction, and personal jurisdiction to Erie doctrine and the power of Congress to create non-Article III courts—rules that affect the administration of justice in millions of cases every year—modern jurisdictional rules are notorious for their inconsistency and ambiguity. This level of ambiguity is remarkable given the zeal with which the Court has imposed clear statement rules on Congress, the feverish concern it has shown for inefficiency in other phases of litigation such as pleading and discovery, and its own high rhetoric emphasizing the signal importance of clarity in jurisdictional rules.
The costs of unclear jurisdictional rules are palpable. They are internalized by ordinary people who lack the resources to make speculative investments in jurisdictional litigation or to endure the jurisdictional maneuvers of deep-pocketed adversaries who can exploit indeterminacy to impose delay and soak up court resources. Oscillation between different rules of decision also leaves Congress, state legislatures, state courts, and lower federal courts guessing about where the boundaries of their power lie.
Modern scholarly commentary contributes to the problem. It generally reads jurisdictional ambiguity through the lens of legal realism as understandable, if not inevitable, because jurisdiction is considered inherently complex. But, as this Article demonstrates, the most embarrassing ambiguities in modern doctrine are entirely of the Court’s own making—a result not of inherent complexity, but rather a consistent failure on the part of both liberal and conservative justices to prioritize clarity as a rule of law value in developing jurisdictional rules. The Court has also exploited ambiguity by speaking the language of judicial restraint while simultaneously amplifying its own power at the expense of Congress, state courts, and lower federal courts. This Article defends the value of clarity both to the rule of law and access to justice.