David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 jurisdiction is best understood as a function of the federal right and cause of action plaintiff asserts. Under my view, these two concepts, when weighed against each other, offer strong evidence of congressional intent to vest the federal courts with jurisdiction and form the foundational elements for the federal question jurisdictional analysis. This principle underlies three standards which offer both a better explanation of the Court's past section 1331 cases and better guides for future decisions than the Holmes test. Under the first standard, section 1331 jurisdiction lies when a plaintiff makes an assertion of a non-judicially created federal cause of action and a mere colorable assertion to a federal right. Under the second standard, section 1331 lies when a plaintiff alleges a state-law cause of action and asserts a more weighty substantial federal right. Finally, under the third standard, section 1331 jurisdiction lies when plaintiff asserts a cause of action created as a matter of federal common law and plaintiff asserts a substantial federal common law right coupled with a sufficient showing to support the right.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Henry Lowenstein (2001). Two Faces of State University Employment: Ethics in Access to Federal Due Process. Ethics and Behavior 11 (1):39 – 53.
Dan E. Stigall, An Unnecessary Convenience: The Assertion of the Uniform Code of Military Justice ('Ucmj') Over Civilians and the Implications of International Human Rights Law.
Keith Sealing, State Sponsors of Terrorism Are Entitled to Due Process Too: The Amended Foreign Sovereign Immunities Act is Unconstitutional.
Matthew K. Mulder, Finding the “Eternal and Unremitting Force” of Habeas Corpus: § 2254(D) and the Need for de Novo Review.
Rochelle Bobroff, Section 1983 and Preemption: Alternative Means of Court Access for Safety Net Statutes.
Charles T. Kotuby Jr, Private International Law Before the United States Supreme Court: Recent Terms in Review.
Tanya J. Monestier, Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?
Sorry, there are not enough data points to plot this chart.
Added to index2009-01-28
Total downloads1 ( #437,406 of 1,100,727 )
Recent downloads (6 months)1 ( #289,271 of 1,100,727 )
How can I increase my downloads?