Federal Question Jurisdiction and Justice Holmes
39 Pages Posted: 11 Aug 2009 Last revised: 23 Jun 2010
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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