Federal Question Jurisdiction and Justice Holmes

39 Pages Posted: 11 Aug 2009 Last revised: 23 Jun 2010

Ann Woolhandler

University of Virginia School of Law

Michael G. Collins

University of Virginia School of Law

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.

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: https://ssrn.com/abstract=1441974

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)

Paper statistics

Downloads
101
Rank
217,301
Abstract Views
878