You Can't Go Holmes Again

Northwestern University Law Review, Vol. 107, 2012

48 Pages Posted: 17 Feb 2012 Last revised: 3 Dec 2012

See all articles by Lumen N. Mulligan

Lumen N. Mulligan

University of Missouri Kansas City

Date Written: February 15, 2012


Under the standard interpretation of 28 U.S.C. § 1331, the so called Holmes test, pleading a federal cause of action is sufficient for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, recharacterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this rights-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights with Justice Holmes’s overall “bad man” approach to the law. I argue further that Mims’s rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which passed legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.

Keywords: federal question jurisdiction, 28 USC 1331, Holmes test, congressional intent, cause of action, right

Suggested Citation

Mulligan, Lumen N., You Can't Go Holmes Again (February 15, 2012). Northwestern University Law Review, Vol. 107, 2012, Available at SSRN: or

Lumen N. Mulligan (Contact Author)

University of Missouri Kansas City ( email )

500 E. 52nd Street
Kansas City, MO 64110
United States

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