An Incomplete Discussion of "Arising Under" Jurisdiction

Authors

David L. Shapiro, Harvard Law School

Abstract

My purpose in this brief Essay is to expand on this theme as it played out in Dan Meltzer’s role as collaborator, friendly critic, and keen analyst, and to do so by exploring a problem that in some ways lies at the heart of our elaborate system of judicial federalism, even though (perhaps because it does not arise that often) it has received somewhat less attention than it deserves. That problem addresses the nature of federal judicial authority—and especially the appellate jurisdiction of the Supreme Court—when a federal issue is embedded in, or when its determination may affect the resolution of, a question of state law. The story as told here begins with, and radiates out from, a seventy-year-old decision of the Supreme Court, Standard Oil Co. of California v. Johnson. I want to focus on its consideration over the years by Dan and me, and on its effect on our thinking about related issues. This story, I think, tells something not only about the fascination of the field we both enjoyed so much, but also about both the delights of a long collaboration on a respected book and the joys of colleagueship and dialogue. While the narrative deals only with what ended up in print, beneath the surface lie many wonderful conversations about this and related problems.

Telling the story requires some background and warrants a concluding effort to bring my own thinking up to date.

Recommended Citation

David L. Shapiro, An Incomplete Discussion of "Arising Under" Jurisdiction, 91 Notre Dame L. Rev. 1931 (2016).
Available at: https://scholarship.law.nd.edu/ndlr/vol91/iss5/6