32 Pages Posted: 29 Nov 2012
Date Written: November 26, 2012
The so-called second branch of arising-under jurisdiction has caused too many problems for too little gain. The branch should be clipped, leaving only the Holmes branch remaining: a suit arises only under the law that creates the cause of action. The second branch has created mischief and uncertainty since its creation, and never has it been close to worth the cost of its maintenance. Contrary arguments contain lofty phrasing about federal power without much connection to reality and understate or ignore both the impact of such a fuzzy jurisdictional test and the intrusion upon state prerogatives.
The impact of such a ruling will be dramatic, minimal, and exaggerated. The ruling will have a dramatic, positive impact on the category of cases that are being delayed while parties argue about unascertainable boundaries and spend too much time litigating about where to litigate. The impact will be minimal on important federal issues actually getting proper review. As for exaggeration, that will likely occur in the law-school classrooms and journals, where lofty adjectives and discussions of ideals have long distorted the actual work done by this troublesome branch.
Keywords: Federal Question, Jurisdiction, Holmes Test, Gunn, Minton, Grable
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