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The Common Law of Federal Question Jurisdiction

57 Pages Posted: 21 May 2009  

F. Andrew Hessick

University of North Carolina School of Law

Date Written: May 21, 2009

Abstract

The Supreme Court has repeatedly stressed that the role of the judiciary interpreting statutes is to declare the law as intended by Congress. But the Court historically has not followed that practice in interpreting the statute conferring federal question jurisdiction. The most notorious example is the well pleaded complaint rule, which the Court developed based on its own policy determinations about the appropriate role of the federal courts. In recent terms, the Court has developed various new doctrines expanding and contracting federal question jurisdiction without regard to Congressional intent. This Article contends that these recent developments reflect that, contrary to its statements about the proper role of the judiciary, the Court increasingly perceives itself as the primary regulator of federal question jurisdiction. The Article also contends that this practice has resulted in a highly manipulable and unstable law of federal question jurisdiction.

Keywords: jurisdiction, federal question, supreme court, statutory interpretation, federal courts

Suggested Citation

Hessick, F. Andrew, The Common Law of Federal Question Jurisdiction (May 21, 2009). Alabama Law Review, Vol. 60, 2009. Available at SSRN: https://ssrn.com/abstract=1408170

F. Andrew Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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