The Claim-centered Approach to Arising-under Jurisdiction: a Brief Rejoinder to Professor Mulligan

• Publication year: 2021

THE CLAIM-CENTERED APPROACH TO ARISING-UNDER JURISDICTION: A BRIEF REJOINDER TO PROFESSOR MULLIGAN

Simona Grossi(fn*)

My claim-centered approach to arising-under jurisdiction fully embraces the three subcategories of jurisdiction that Professor Mulligan identifies.(fn1) My essential point is that the bifurcation (or trifurcation as Professor Mulligan suggests) into separate doctrines has led to a mechanical jurisprudence that is sometimes inconsistent with the fundamental principles that ought to animate § 1331 jurisdictional analysis. In my view, Gully v. First National Bank(fn2) illuminates those fundamental principles by focusing on the role of the federal issue in the case before the court.(fn3) That does not mean that Gully provides an easy answer for all applications of arising-under jurisdiction; it does mean, however, that Gully points to the fundamental question presented in the jurisdictional analysis.

Professor Mulligan suggests that the Gully standard I endorse requires an abstract consideration of the issue's importance presented in the case.(fn4) But this is not my view. As I explained in my article, Gully's "importance" inquiry pertains solely to the role that the federal issue plays in the plaintiff's claim: Does it lurk in the background or does it operate in the foreground as an essential element of that claim? In fact, one of my chief criticisms of the "rights separation" model advocated by Professor Mulligan is that, as presently configured, it invites a subjective determination of the importance of the federal issue to the federal system, a determination that I believe is inappropriate to the jurisdictional question.(fn5) My objection to the current bifurcated doctrinal approach is that, differently from my proposed unified model, it relies on a subjective determination of whether the issue is somehow important as perceived by the individual judge.

Professor Mulligan also argues that the Gully approach "leads to unclear-meaning unpredictable ex ante-§ 1331 doctrine."(fn6) But he provides no proof of that claim other than the assertion that other commentators have assumed that to be the case.(fn7) In fact, Gully pinpoints the essential jurisdictional question, i.e., the role of the federal issue within the context of the claim asserted, and numerous cases preceding Gully fully illuminate how that...