The Claim-Centered Approach to Arising-Under Jurisdiction: A Brief Rejoinder to Professor Mulligan

Abstract

This piece offers a response to Professor Mulligan's article, "Gully and the Failure to Stake a 28 U.S.C. § 1331 “Claim,” 89 WASH. L. REV. 441 (2014). Mainly relying on my article, A Modified Theory of the Law of Federal Courts: The Case of Arising Under Jurisdiction, 88 WASH. L. REV. 961, 982 (2013), here I explain, once again, how the bifurcation (or trifurcation) into separate arising-under doctrines that Professor Mulligan suggests has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate §1331 jurisdictional analysis. In my view, Gully v. First National Bank illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court. That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis.