The Indiana Law Journal & The Indiana Law Journal Supplement - http://www.indianalawjournal.org
Of Rules and Standards: Reconciling Statutory Limitations On "Arising Under" Jurisdiction
http://www.indianalawjournal.org/articles/14/1/Of-Rules-and-Standards-Reconciling-Statutory-Limitations-On-quotArising-Underquot-Jurisdiction/Page1.html
Richard D. Freer
Robert Howell Hall Professor of Law, Emory University. Visiting Professor, The George Washington University Law School, 2006–07.
 
By Richard D. Freer
Published on 10/3/2007
 

Article III authorizes and the Judicial Code grants federal subject matter jurisdiction over civil cases "arising under" federal law.The Supreme Court has interpreted these words differently, however, in their constitutional and statutory contexts. While the constitutional text is read broadly, the Court has imposed three limitations on the same words in the statutory grants of federal question jurisdiction:(1) the "well-pleaded complaint" rule, (2) a requirement that the federal issues be sufficiently "direct" or "central" to the dispute to justify access to the federal courts and (3) a requirement that the federal assertion be "substantial." Our primary focus is the second limitation – the centrality requirement – which has long vexed courts and commentators.In Grable & Sons Metal Products v. Darue Engineering, the Court embraces the broader view of federal question jurisdiction and finally provides meaningful guidance for assessing when state-created claims may invoke federal question jurisdiction.

In my opinion, the Court does this by implicitly recognizing the difference between a rule and a standard.A rule affords the decision-maker no discretion, but cabins its inquiry to whether a given set of facts exists. A standard, in contrast, affords the decision-maker greater discretion by prescribing a series of relevant factors to be weighed in view of a policy goal. In illuminating the difference, we benefit by juxtaposing the centrality requirement with the well-pleaded complaint rule.The latter performs a task well-suited to a rule – it asks a question that can be answered "yes" or "no."The centrality requirement, however, asks a fundamentally different kind of question – essentially "how much" federal content is required to invoke jurisdiction. This sort of question cries out for assessment by a less determinate standard, which requires the court to balance federal and state interests and to consider, among other things, litigation reality – that is, what issues must be resolved in adjudicating the underlying dispute.