Academic

Hessick on Federal Question Jurisdiciton

By Lawrence Solum

F. Andrew Hessick III (Arizona State University - Sandra Day O'Connor College of Law) has posted The Common Law of Federal Question Jurisdiction (Alabama Law Review, Vol. 60, 2009) on SSRN. Here is the abstract:

The Supreme Court has repeatedly stressed that the role of the judiciary interpreting statutes is to declare the law as intended by Congress. But the Court historically has not followed that practice in interpreting the statute conferring federal question jurisdiction. The most notorious example is the well pleaded complaint rule, which the Court developed based on its own policy determinations about the appropriate role of the federal courts. In recent terms, the Court has developed various new doctrines expanding and contracting federal question jurisdiction without regard to Congressional intent. This Article contends that these recent developments reflect that, contrary to its statements about the proper role of the judiciary, the Court increasingly perceives itself as the primary regulator of federal question jurisdiction. The Article also contends that this practice has resulted in a highly manipulable and unstable law of federal question jurisdiction.

Full post as published by Legal Theory Blog on May 25, 2009 (boomark / email).