“Federal Question” Jurisdiction — A Snare and a Delusion

Poorly defined criteria in the area of jurisdiction are especially wasteful, generating as they often do expensive and protracted litigation over threshold issues, rather than promoting the speedy determination of lawsuits on their merits. One of the most perplexing exercises in American law practice is the effort to define with certainty the original jurisdiction of the lower federal courts in matters where there is no diversity of citizenship. Although this general head of federal jurisdiction has persistently and pervasively been characterized as “federal question” jurisdiction, it is doubtful whether there is, in fact, original jurisdiction in the lower federal courts over federal questions, as such. This use of an inappropriate and misleading jurisdictional standard has been, and will continue to be, the source of a lack of coherence in the decided cases and uncertainty in the minds of those who must make the choice of a proper forum in which to plead, and it is the purpose of this article both to illustrate the unsuitability of the “federal question” criterion as a test for the original jurisdiction of the lower federal courts in non-diversity matters and to suggest the orientation for a redefinition of this subject matter.