Thursday, March 1, 2012
Lumen Mulligan (University of Kansas Law School) has posted You Can't Go Holmes Again to SSRN.
Under the standard interpretation of 28 U.S.C. § 1331, the so-called Holmes Test, pleading a federal cause of action constitutes a sufficient condition for finding federal question jurisdiction. In January 2012, the Supreme Court, in Mims v. Arrow Financial Services, LLC, re-characterized this standard test for § 1331 jurisdiction as one that considers whether “federal law creates [both] a private right of action and furnishes the substantive rules of decision.” In this first piece to address the Mims Court’s significant change to the § 1331 canon, I applaud its rights-inclusive holding. I contend that this right-inclusive view rests upon a firmer jurisprudential framework than does the Holmes test, as the latter is intertwined with an anachronistic pairing of causes of action and rights and Justice Holmes’ overall “bad man” jurisprudential position. I argue further that Mims’ rights-inclusive approach more accurately describes § 1331 doctrine as a whole, helping to illuminate that — contrary to the Holmes test — merely pleading a federal cause of action is neither necessary nor sufficient for taking statutory federal question jurisdiction. I also demonstrate that this rights-inclusive view is more solicitous of the intent of the 1875 Congress, which passed § 1331, and of the intentions of later-in-time Congresses, which pass legislation against the presumption that federal rights provide grounds for taking federal question jurisdiction, than is the Holmes test.