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Article
Gully and the Failure to Stake a 28 U.S.C. § 1331 'Claim'
Washington Law Review (2014)
  • Lumen N. Mulligan
Abstract
In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in chief, for inclusion in federal question jurisdiction — does not have a unique affinity to legal-process-school jurisprudential norms. To the contrary, legal-process-school principles support a more traditional rights-and-causes-of-action approach to § 1331 doctrine, understood as a means of effectuating the principle of congressional control over lower federal court jurisdiction. Second, I contend that Gully, understood as espousing a transaction or claim-centric approach to § 1331, lays a poor foundation for this doctrine. Indeed, this interpretation of Gully is both inaccurate and anachronistic. In this same vein, I note that the Supreme Court’s contemporary use of the term “claim” subsumes the very notions of right and cause of action that the claim-centric view aims to avoid, and that a claim-centered view is likely to cause more practical havoc than help. Finally, I argue that this return to Gully is more emblematic of a pragmatic approach to § 1331 jurisdictional law, which I reject within the confines of the broader contemporary discussion regarding the role of “simple” versus “complex” jurisdictional regimes.
Keywords
  • federal courts,
  • subject matter jurisdiction,
  • federal question jurisdiction,
  • 28 U.S.C. 1331,
  • legal process theory
Publication Date
2014
Citation Information
Lumen N. Mulligan. "Gully and the Failure to Stake a 28 U.S.C. § 1331 'Claim'" Washington Law Review Vol. 89 (2014) p. 441
Available at: http://works.bepress.com/lumen_mulligan/7/