The ideal of clear and simple jurisdictional rules seems like a no-brainer. Clarity in areas of subject-matter jurisdiction generally reduces the cost of litigating those issues and thus preserves litigant and judicial resources for the merits of a dispute. As a result, scholars and justices regularly promote the rhetoric of jurisdictional clarity. Yet no one has probed that rhetoric or reconciled it with the reality of subject-matter jurisdiction doctrine, which is anything but clear and simple. This Article begins to fill that gap, and, in the process, shifts the perspective of existing conversations between rules and standards and between mandates and discretion toward a perspective that focuses on the value and attainability of clarity. It offers a more refined understanding of the surprising uncertainty and complexity of jurisdictional clarity, and it argues that, contrary to the rhetoric, the ideal of jurisdictional clarity is mostly illusory. Difficulties inherent in the design, implementation, and instrumental direction of clear and simple jurisdictional rules largely render them unattainable. Rather than continue to invoke the unexamined ideal of clarity and simplicity, jurisdictional doctrine should strive to confine clarity to what it can reasonably accomplish and to embrace the undervalued virtues of uncertainty and complexity.
Structural Exceptionalism and Comparative Constitutional Law
For over the past two decades, there has been an ongoing debate over whether the Supreme Court should rely on comparative constitutional law when interpreting the U.S. Constitution.This Note offers an exceptionalist critique of the practice. Specifically, it argues that the U.S. Constitution’s exceptional view of the role of the judiciary cautions against this use of comparative constitutional law. The U.S. Constitution is rare among contemporary charters in its reflection of the belief that the judicial branch should be confined to matters of law instead of questions of policy. This separation of law and politics is primarily expressed in the relative absence of institutional safeguards to control the federal judiciary. Whereas architects of foreign constitutions expected some judicial policy-making and consequently built in ex ante and/or ex post controls into their systems, the U.S. Constitution treats the judiciary as a relatively unthreatening institution. This Note contends that when the Supreme Court draws on the constitutional law of these countries without their accompanying safeguards, it risks that the reasoning of foreign judges will operate unconstrained by the checks they took for granted and lead to unintended costs for American society.