Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders

• Publication year: 2021

91 Nebraska L. Rev. 387. Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders

Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders

Elizabeth Y. McCuskey(fn*)

TABLE OF CONTENTS

I. Introduction..........................................388

II. Clarity, Clarification, and Grable Federal-Question Jurisdiction...........................................390
A. Canonization of Clarity............................391
B. Clarification and Implementation..................395
C. Grable as Clarification ............................398
1. Evolution of the Grable Test...................400
2. Slimming Doctrinal Application in Empire .....411
3. Cinching Jurisdiction with Pragmatism, Presumptions, and Procedure ..................415
III. Viewing Clarification and Implementation Through Grable................................................ 418
A. Sample of Decisions ............................... 419
1. Sample and Sources of Decisions ...............420
2. Jurisdictional Sample..........................426
B. Submerged Precedent.............................427
C. District Court Remand Rates ......................430
1. Westlaw and Docket Remand Rates ............ 432
Figure 1 .......................................433
2. True Remand Rates ...........................433
Figure 2 .......................................434
Figure 3 .......................................434
D. Appellate Implementation ......................... 435
1. Circuit Clarifications .......................... 436

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Figure 4.......................................437
2. Reversal Rates ................................437
Figure 5.......................................440

IV. Promoting Clarity and Clarification.....................440
A. Docket Searches...................................441
B. Explained Decisions ...............................445
C. Appellate Review..................................446
1. Discretionary Circuit Review...................448
2. Supreme Court Supervisory Review............449

V. Conclusion ............................................451
Appendix 1 ...........................................453
Selection Criteria for Sample District Courts .......453
Appendix 2 ...........................................453
Remand Rate Coding Information and Variables . . .453
Appendix 3 ...........................................455
Circuit Court Publication and Citation Restrictions . . . . . . 455
Appendix 4 ...........................................458
Removal Rate in All District Courts ...............458

I. INTRODUCTION

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.(fn1) Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule.(fn2) The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted to sharpening litigants' vision of the proper jurisdiction.

But clarity is not costless. Bright-line jurisdictional rules have the potential to remand the desirable cases with the undesirable ones. In federal-question jurisdictional rules, for example, clarity is somewhat overvalued in theory and underachieved in practice. In theory, the constitutional and statutory bases for federal-question jurisdiction prescribe simply and broadly that jurisdiction exists over "all" actions "arising under" federal law.(fn3) There exist compelling reasons to have federal courts adjudicate essential federal questions, even if those

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questions happen to arise through state-law claims. Therefore, many theoretically "clear" rules, like Justice Holmes's proposal that only federal claims "arise under" federal law,(fn4) would improperly trim the intent of "arising under" jurisdiction and contravene the supposed benefits of the federal forum. In theory, then, important substance and systemic benefits may be unnecessarily sacrificed on the altar of clarity.

In practice, the word "clarity" seems to work much like the word "classy"-if you have to say it, it probably is not true, at least for federal-question jurisdiction. The Supreme Court's 2005 opinion in Grable and Sons Metal Products, Inc. v. Darue Engineering and Manufacturing(fn5) stands as a recent example. In Grable, the unanimous Court endeavored to synthesize the numerous doctrines governing jurisdiction over state-law claims raising federal questions (or "embedded" federal questions), and to resolve a circuit split over whether a federal private right of action must accompany the alleged embedded federal questions.(fn6) The Court decided that jurisdiction does not, in fact, require an underlying federal right of action, but that a right of action is relevant to determinations of "substantiality" and federalism.(fn7) Grable thus represents the rejection of a bright-line ju-risdictional rule in favor of a nuanced, discretionary one, making clear that the jurisdictional waters should remain murky.

Grable's rejection of a bright-line jurisdictional rule raises broader questions about clarity's role in federal-question jurisdiction doctrine and whether clarity in theory translates into clarity in practice. How have district courts reacted to the Supreme Court's clarification of doctrine and choice of a flexible rule? Has the clarification offered litigants a clearer picture for predicting jurisdiction?

This Article takes an initial step toward answering those questions by first arguing the clarity debate should focus on how jurisdictional rules appear in the eyes of their beholders and by then examining what Grable federal-question jurisdiction looks like from that perspective-as applied in federal court precedents. Part II questions the rationales for jurisdictional clarity and traces the gradual distillation of rules for removal jurisdiction over embedded federal-questions, detailing how Grable purported to "clarify" the proper interpretation of Mer-rell Dow Pharmaceuticals Inc. v. Thompson(fn8) and state a unified jurisdictional rule.

Using Grable as an example, the Article then turns to an empirical study on the implementation of Grable's "clarified" rule. The study

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captures a snapshot of how federal district and appellate courts have reacted to the Grable Court's attempted clarification and choice of a nuanced rule over a bright-line one. Part III presents that study, examining a sample of decisions before and after Grable. The study identifies a mass of district court precedent "submerged" on court dockets, underscoring the possibility that conventional research offers an unrepresentative sample of precedent. Part III then uses those submerged precedents to trace trends in the rates of remand and reversal in the years before and after the Supreme Court announced Grable, illustrating the potential influence of clarifying opinions. Part IV builds on these theoretical discussions and empirical observations to describe obstacles currently diverting clarification and to suggest some modest steps that litigants, scholars, courts, and Congress might take to improve the availability of clarifying precedents and thereby enhance predictability.

II. CLARITY, CLARIFICATION, AND GRABLE FEDERAL-QUESTION JURISDICTION

Federal jurisdiction's inherent complexity has generated hundreds of books,(fn9) countless articles,(fn10) and nearly innumerable opinions.(fn11) Yet the incantation that jurisdictional rules should be clear permeates the field.

This Article examines clarity's role in federal-question jurisdiction and investigates whether current applications of federal-question ju-risdictional rules are serving clarity's underlying purposes. This Article first argues that the pursuit of jurisdictional clarity should proceed from a litigant-centered view of the rules as applied. This Part surveys the origins, justifications, dilemmas, and applications of the mantra that jurisdictional rules should be clear, as well as examines the clarification process for federal-question jurisdiction doctrine.

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A. Canonization of Clarity

There is a long-standing mantra among jurists and commentators that "jurisdictional rules should be clear."(fn12) Efficiency and legitimacy concerns underlie this fixation on clarity. That is, the pursuit of clear jurisdictional rules seeks to promote efficiency primarily by allowing parties to spend their resources litigating the merits of their claims instead of which court can hear them, and secondly by allowing judges to determine jurisdiction early, easily, and accurately.(fn13) The legitimacy goal is less direct, seeking to promote a perception that federal courts are only hearing cases within their powers and are not overreaching with jurisdictional vagaries.(fn14) These goals thus boil down to predictability for litigants via consistency in judicial application.(fn15)

Yet there also exists a longstanding debate over clarity versus complexity. This debate takes the form of rules versus standards.(fn16) These arguments pose diverging answers to the question whether it is more...