A Neo-Federalist Analysis of Federal Question Jurisdiction

58 Pages Posted: 29 Oct 2009

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2007


In this article, Professor Pushaw offers a critique of Paul Mishkin’s analysis in his 1953 Columbia Law Review article The Federal “Question” in the District Courts. In that article, Mishkin argued that the statute that grants federal trial courts general jurisdiction over “federal questions” limits such jurisdiction to cases where the federal issues appears in a “well pleaded” complaint and where plaintiff’s federal claim is “substantial” and founded “directly” upon federal law. Professor Pushaw posits that federal courts have primary responsibility over federal law. Accordingly, federal courts should assert jurisdiction over all federal question cases. Rules, such as the well-pleaded complaint rule, that frustrate the goal of ensuring a national forum to vindicate federal law are not necessary to protect state judicial authority over state law. Federal courts should be required to exercise jurisdiction over any case that will likely depend on the resolution of a genuine dispute over the interpretation, application or enforcement of federal law. Professor Pushaw applies this theory to suggests that federal question jurisdiction should exist in each of the following three circumstances: (1) where federal law creates the cause of action and its meaning or effect is contested; (2) where states create a cause of action but incorporate elements of federal law; and (3) where a claim rests on state law, but the answer or reply is based on federal law. This approach better reflects the language and history of the constitutional and statutory grants of “arising under” jurisdiction than Mishkin’s analysis and eliminates the need for federal judges to make subjective judgments about whether a federal claim is “substantial” or “direct” enough to warrant their attention.

Keywords: Paul Mishkin, federal question jurisdiction, federalism

JEL Classification: K19, K49

Suggested Citation

Pushaw, Robert J., A Neo-Federalist Analysis of Federal Question Jurisdiction (2007). California Law Review, Vol. 95, 2007, Available at SSRN: https://ssrn.com/abstract=1495326

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
(310) 506-6318 (Phone)

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