A Unified Theory of 28 U.S.C. § 1331 Jurisdiction

Section 1331, Title 28 of the United States Code is the general federal question jurisdictional statute, which grants federal district courts with original subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."' This statute grounds the majority of civil actions heard in federal court. Given the weighty doctrinal3 and pragmatic consequences that flow from determining whether a claim falls within the scope of § 1331, it is surprising to learn that we lack a coherent view of what statutory federal question jurisdiction entails. Professor Mishkin famously forwarded the classic theory that § 1331 jurisdiction lies when a plaintiff raises "a substantial claim founded 'directly' upon federal law." But the federal courts have failed to establish a unified theory or practice of § 1331 in conformity with this view or any other. Academia has similarly failed to coalesce around Mishkin's, or anyone else's, principles.

This is not to say that § 1331 jurisdiction is always a puzzle. It is assuredly true that in most cases, a plaintiffs suit raising a federal claim will arise under § 1331, while a plaintiffs suit to litigate state-law questions will not. But there remains a significant proportion of cases where determining the existence of § 1331 jurisdiction is vexatious. In an effort to determine the contours of § 1331's border, scholars have converged upon two perceived truths, which now predominate our understanding of § 1331 federal question jurisdiction.