Abstract

http://ssrn.com/abstract=1495326
 
 

Citations (2)



 


 



A Neo-Federalist Analysis of Federal Question Jurisdiction


Robert J. Pushaw


Pepperdine University - School of Law

2007

California Law Review, Vol. 95, 2007

Abstract:     
In this article, Professor Pushaw offers a critique of Paul Mishkin’s analysis in his 1953 Columbia Law Review article The Federal “Question” in the District Courts. In that article, Mishkin argued that the statute that grants federal trial courts general jurisdiction over “federal questions” limits such jurisdiction to cases where the federal issues appears in a “well pleaded” complaint and where plaintiff’s federal claim is “substantial” and founded “directly” upon federal law. Professor Pushaw posits that federal courts have primary responsibility over federal law. Accordingly, federal courts should assert jurisdiction over all federal question cases. Rules, such as the well-pleaded complaint rule, that frustrate the goal of ensuring a national forum to vindicate federal law are not necessary to protect state judicial authority over state law. Federal courts should be required to exercise jurisdiction over any case that will likely depend on the resolution of a genuine dispute over the interpretation, application or enforcement of federal law. Professor Pushaw applies this theory to suggests that federal question jurisdiction should exist in each of the following three circumstances: (1) where federal law creates the cause of action and its meaning or effect is contested; (2) where states create a cause of action but incorporate elements of federal law; and (3) where a claim rests on state law, but the answer or reply is based on federal law. This approach better reflects the language and history of the constitutional and statutory grants of “arising under” jurisdiction than Mishkin’s analysis and eliminates the need for federal judges to make subjective judgments about whether a federal claim is “substantial” or “direct” enough to warrant their attention.

Number of Pages in PDF File: 58

Keywords: Paul Mishkin, federal question jurisdiction, federalism

JEL Classification: K19, K49

Accepted Paper Series


Download This Paper

Date posted: October 29, 2009  

Suggested Citation

Pushaw, Robert J., A Neo-Federalist Analysis of Federal Question Jurisdiction (2007). California Law Review, Vol. 95, 2007. Available at SSRN: http://ssrn.com/abstract=1495326

Contact Information

Robert J. Pushaw (Contact Author)
Pepperdine University - School of Law ( email )
24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-6318 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 175
Downloads: 20
Citations:  2

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 1.031 seconds