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90 Wash. L. Rev. Online 1 (2015)

handle is hein.journals/wlro90 and id is 1 raw text is: REVISITING JURISDICTION'S SOCIAL COST: A BRIEF REJOINDER TO PROFESSOR KLERMAN Dustin E. Buehler* My recent article Solving Jurisdiction's Social Cost examines issues implicated by nonwaivable federal court subject-matter jurisdiction.1 I argue that courts and commentators are prone to monistic theories of jurisdictional value, failing to consider the full range of interests implicated by jurisdictional rules.2 I then catalogue the various interests arising from jurisdictional rules.3 Lastly, I advance several solutions, including early jurisdictional certification orders, a cut-off point for jurisdictional challenges, interlocutory appeals of jurisdictional rulings, and sanctions to deter private-party abuse.4 Daniel Klerman's response to my article is articulate, well-reasoned, and persuasive.5 Among other contentions, he suggests that mandatory jurisdictional certification by district courts may incur greater costs than those associated with nonwaivable jurisdictional rules.6 Professor Klerman challenges the notion that the efficiency and structural interests underlying jurisdictional rules are incommensurable. And he outlines a novel alternative approach in which federal courts could call for the views of state attorneys general when appropriate to identify and protect federalism concerns and state prerogatives.8 I commend Professor Klerman for his significant contribution to the economic literature on federal court subject-matter jurisdiction. This * Associate Professor of Law, University of Arkansas, dbuehler@uark.edu. 1. Dustin E. Buehler, Solving Jurisdiction's Social Cost, 89 WASH. L. REV. 653 (2014). 2. Id. at 658 72. 3. Id. at 672 88. 4. Id. at 689 706. 5. See Daniel Klerman, An Economic Analysis of Subject Matter Jurisdiction Waiver: A Response to Professor Buehler, 89 WASH. L. REV. ONLINE 1 (2014). 6. Id. at3 6. 7. Id. at 6-10; see also Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779, 796 (1994) (Incommensurability occurs when the relevant goods cannot be aligned along a single metric without doing violence to our considered judgment about how these goods are best characterized.). 8. Klerman, supra note 5, at 10-12.

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