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I noticed a gap in my outline as I was reviewing today... for some reason I only outlined the well-pleaded complaint and did not discuss the centrality of the federal issue.

As I am going over it now I am doubting myself and I want to make sure I have this straight:

Holmes says (in American Well Works): "A suit arises under the law that creates the cause of action"
So, if it is a state law claim, no FQ Jdx; and if it is a fed law question, FQ jdx granted

Then we have Grable which allows for a state law claim ro be seen as arising under federal law as long as three factors are met.

So, my question then, is, do I have the following straight:

Grable has supplanted Holmes if a case is created by state law but will raise a federal issue that satisfies the three factors provided in Grable. And Holmes is still preserved in that if a case is created by federal law, it arises under federal law, and so there is FQ jdx...

Am I misstepping?

From what I recall, Grable requires a substantial interpretation of federal law in the state law claim for it to be heard under 1331. A P can bring a state law claim but if the claim requires the court to interpret federal income tax law for example, that is a case where Grable would obtain. Correct me if I'm wrong.

From what I recall, Grable requires a substantial interpretation of federal law in the state law claim for it to be heard under 1331. A P can bring a state law claim but if the claim requires the court to interpret federal income tax law for example, that is a case where Grable would obtain.

I think that is correct. But I am more concerned with whether my understanding of the relation between Grable and the Holmes test is correct... any thoughts on that?

I think you got it. The Holmes creation test says look to the law that creates the cause of action, whereas Grable says even if the law that creates the cause of action is state law, if there is a substantial fed interest, it can still get fed jurisdiction. Basically they are saying that fed courts can always protect federal interests, even if it doesn't pass the "Holmes creation test."

I am not sure what three factors from Grable you are referring to, but my understanding of the "substantial fed interest" is that it is determined on a case by case basis.

I just glanced briefly, but I think you have it. From my outline:


d. Two Sources of FQ
i. Federal Law
1. Explicit cause of action – statute explicitly gives P the right to sue
2. Implicit cause of action – court infers from legis. history and statutory text that Congress intended to give P the right to sue
3. Falls under exclusive federal SMJ (patents, antitrust, etc.)
ii. State Law
1. Federal question may be embedded in the state law claim (state law creates the cause of action but the underlying federal rule is important in deciding the outcome)
2. Apply the Grable 3-part test to determine whether P’s state law claim arises under federal law

The federal law stuff I took from Well Works, and the state law stuff is Grable.

T.B. Harms does a nice job illustrating the two types of cases that "arise under" in 1331.

Great. Thanks everyone.