The True Compass: No Federal Question in a State Law Claim

Abstract

The allocation of jurisdiction between state and federal courts is a core concern of our American federal system. Article III of the Constitution grants federal jurisdiction over a specific, limited list of cases and controversies. The question that has caused the most analytical difficulty for the allocation of jurisdiction over the past century is whether a federal court has original federal question jurisdiction when an issue of federal law is embedded in a claim created by state law. This article proposes that the Supreme Court apply Ockham’s razor by returning to an earlier understanding of “arising under.” A claim arises under the law that creates it. A claim created by Congress is a federal question. A claim created by state statute or state common law is not a federal question. The author argues that the Court said so nearly a century ago and should once again. Part II begins by briefly tracing federal question jurisdiction from its first conferral in 1875 to the present. Part III argues that the accumulated analysis in this area by the Supreme Court is problematic for many reasons, including disrespecting the constitutional language, usurping authority from Congress over federal jurisdiction, running contrary to its other decisions on federal jurisdiction, and creating a malleable equity guide instead of a jurisdictional rule. Part IV argues the Court should clarify jurisdiction law by readopting the AMERICAN WELL WORKS rule that a case arises under the law that creates the claim.