Jurisdiction Commons^™

It’S Just Not Worth Searching For Welcome Mats With A Kaleidoscope And A Broken Compass., Rory M. Ryan

Rory M Ryan

Justice Holmes construed the words “arising under” to mean something simple and ascertainable – a case arises under the law that creates the cause of action. By rejecting the bright-line Holmes test as the exclusive test, the Supreme Court created a second branch of federal-question jurisdiction, which applies to state-created claims with embedded federal issues, and which is governed by a flexible and elusive standard. While eschewing the bright-line Holmes rule as too rigid, champions of the second branch have both praised its flexibility and predicted that clear-enough boundaries will develop. They have not and will not. Long ago, Justice …