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http://ssrn.com/abstract=1441974
 
 

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Federal Question Jurisdiction and Justice Holmes


Ann Woolhandler


University of Virginia School of Law

Michael G. Collins


University of Virginia School of Law


Notre Dame Law Review, Forthcoming
Virginia Public Law and Legal Theory Research Paper No. 2010-22

Abstract:     
Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under § 1331. This second class status is partly due to Justice Holmes’s pronouncement that, 'A suit arises under the law that creates the cause of action.' This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of 'primary rights.' What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.

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Date posted: August 11, 2009 ; Last revised: June 23, 2010

Suggested Citation

Woolhandler, Ann and Collins, Michael G., Federal Question Jurisdiction and Justice Holmes. Notre Dame Law Review, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2010-22. Available at SSRN: http://ssrn.com/abstract=1441974

Contact Information

Ann Woolhandler
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
Michael G. Collins (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-243-2385 (Phone)

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