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.
Issue 1
When Injury Is Unavoidable: The Vaccine Act’s Limited Preemption of Design Defect Claims
Reasonable Agencies
THIS Article argues that the complex doctrine of judicial review of administrative action—containing no less than six separate tests depending on the sort of agency action to be reviewed—both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies’ actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.