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Clear Rules—Not Necessarily Simple or Accessible Ones
Mulligan, Lumen N.
Mulligan, Lumen N.
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Abstract
In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend that a focus on clarity in isolation, in lieu of simplicity or accessibility, both furthers Dodson’s project of illustrating that the value of clarity is often a false idol and reveals the inherently empirical nature of the question. I close by noting that although Dodson’s piece importantly demonstrates that jurisdictional clarity comes at a cost, his inability to resolve these underlying empirical questions makes it unlikely that he will quiet those advocating clarity-based jurisdictional reform.
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Date
2011-05-11
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University of Virginia
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Keywords
Jurisdiction, Subject matter jurisdiction, Jurisdictional rules, Federal courts, Civil procedure, Legal reform, Legal complexity
Citation
Lumen N. Mulligan, Clear Rules—Not Necessarily Simple or Accessible Ones, 97 Virginia Law Review In Brief 13-22 (2011).