Civil Procedure, Fall, 2006

Professor Goldberg

Grable: Substantial Federal Issue Test In Grable, the Supreme Court refined the test for determining if federal question jurisdiction exists when there is a federal issue claimed to be an element of a state-created claim. After determining that the claim is not created by federal law, the court must examine whether 1. 2. The state-law claim necessarily raises a stated federal issue The federal issue is actually disputed and substantial

3. The federal court may entertain the claim without disturbing any congressionally approved balance of federal and state responsibilities. Policy: Federal question jurisdiction will be favored when a federal forum will bring experience, solicitude and hope of uniformity on federal issues. Federal question jurisdiction will not be favored if recognizing federal question jurisdiction will attract a horde of state-created claims to federal court. The Court also answered some questions left unanswered by the Merrell Dow case: A federal cause of action in a federal statute is not a necessary condition for exercising federal question jurisdiction over state-created claim. However, the lack of a federal cause of action is relevant. It indicates that Congress was not putting out a welcome mat to state-created claims that include an issue regarding a federal statute. Although the Smith case involved a constitutional issue in a state-created claim, a constitutional issue is not a requirement for federal question jurisdiction. One question left open by the Supreme Court is how significant was the fact that in Grable the federal issue was only legal issue contested in the case and once decided would not lead to additional litigation. Would federal question jurisdiction exist in a case identical to American Well Works or Merrell Dow?

Grable.F06

12/16/2011