Federal Jurisdiction and the Problem of the Litigative Unit: When Does What 'Arise Under' Federal Law?

Abstract

This article refines and extends Professor Oakley's contention, first advanced in his work as Reporter for The American Law Institute's Federal Judicial Code Revision Project, that the "claim" rather than the "civil action" is the fundamental unit of federal jurisdiction. Professor Oakley begins by reviewing and restating in expressly claim-specific terms the various strands of doctrine that determine the scope of the federal-question jurisdiction of the district courts. He offers a new distinction between the uncontroversial exercise of "Category-I" federal-question jurisdiction, familiarly applied to claims created by federal law, and certain rare and problematic instances of "Category-II" federal-question jurisdiction, where claims created by state law have nonetheless been found to "arise under" federal law in some more incidental way. He then elaborates this distinction by reference to Christianson v. Colt Industries Operating Corp. and three other contemporary decisions of the United States Supreme Court, demonstrating that they expose an ambiguity in our current legal conception of what counts as a "claim" for jurisdictional purposes. Professor Oakley concludes by defending a "theoretical" conception of "claim" when used for purposes of jurisdiction, as opposed to the "transactional" conception of "claim" that should be used for purposes of preclusion.