Washington Law Review

Article

A Modified Theory of the Law of Federal Courts: The Case of Arising-Under Jurisdiction

March 01, 2013 | 88 Wash. L. Rev. 961

Abstract:  This Article examines and evaluates the legal process method as a perspective from which to assess the law of federal courts. It then offers a modified approach to legal process that encompasses the full range of considerations that ought to inform modern judicial decision-making in this context. With that modified approach in mind, the article describes and critiques the Supreme Court’s statutory arising-under jurisprudence, both as originally developed and as currently practiced. The article shows that while the Court’s early “arising-under” jurisprudence was founded on durable principles and on the reasoned application of those principles, more recent decisions by the Court have strayed from that approach in service of a more mechanical jurisprudence. This approach seems to be premised more on case-management concerns than on the congressionally endorsed value of providing a federal forum for the interpretation and application of federal law. The article ends by examining the Court’s decision in Gunn v. Minton. As the article explains, Gunn offered the Court an opportunity to redirect the arising-under analysis back toward a perspective that would more closely reflect the legitimate and enduring principles of federal question jurisdiction. The Court, however, missed that opportunity and instead endorsed a mechanical, four-part test as a substitute for reasoned analysis.

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