September 18, 2008
The Ebb and Flow of 28 USC 1331
In a nutshell, the Supreme Court in Grable expanded the interpretation of "arising under" in terms of the "substantial federal question" doctrine: a claim, created by state law, can nonetheless "arise under" federal law if it involves a substantial federal question. Shortly after Grable, the Federal Circuit held that legal malpractice cases based upon patent litigation or patent prosecution 'arose under' federal law. The Fifth Circuit, somewhat in contrast, just held that a claim that a lawyer botched a trademark action (under federal law) did not present a substantial federal question. Sing v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008). Stay tuned on this narrow but critical issue.
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