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The True Compass: No Federal Question in a State Law Claim

University of Kansas Law Review, Vol. 55, p. 1, 2006

60 Pages Posted: 19 Nov 2011  

Douglas D. McFarland

Mitchell|Hamline School of Law

Date Written: January 1, 2006


The allocation of jurisdiction between state and federal courts is a core concern of our American federal system. Article III of the Constitution grants federal jurisdiction over a specific, limited list of cases and controversies. The question that has caused the most analytical difficulty for the allocation of jurisdiction over the past century is whether a federal court has original federal question jurisdiction when an issue of federal law is embedded in a claim created by state law. This article proposes that the Supreme Court apply Ockham’s razor by returning to an earlier understanding of “arising under.” A claim arises under the law that creates it. A claim created by Congress is a federal question. A claim created by state statute or state common law is not a federal question. The author argues that the Court said so nearly a century ago and should once again. Part II begins by briefly tracing federal question jurisdiction from its first conferral in 1875 to the present. Part III argues that the accumulated analysis in this area by the Supreme Court is problematic for many reasons, including disrespecting the constitutional language, usurping authority from Congress over federal jurisdiction, running contrary to its other decisions on federal jurisdiction, and creating a malleable equity guide instead of a jurisdictional rule. Part IV argues the Court should clarify jurisdiction law by readopting the AMERICAN WELL WORKS rule that a case arises under the law that creates the claim.

Keywords: American Well Works v. Layne & Bowler Co., Grable & Sons v. Darue, jurisdiction, state courts, American federal system, federal courts, federal question jurisdiction

Suggested Citation

McFarland, Douglas D., The True Compass: No Federal Question in a State Law Claim (January 1, 2006). University of Kansas Law Review, Vol. 55, p. 1, 2006. Available at SSRN:

Douglas D. McFarland (Contact Author)

Mitchell|Hamline School of Law ( email )

875 Summit Ave.
Saint Paul, MN 55105
United States

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