In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view—read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in chief, for inclusion in federal question jurisdiction—does not have a unique affinity to legal-process-school jurisprudential norms. To the contrary, legal-process-school principles support a more traditional rights-and-causes-of-action approach to § 1331 doctrine, understood as a means of effectuating the principle of congressional control over lower federal court jurisdiction. Second, I contend that Gully, understood as espousing a transaction or claim-centric approach to § 1331, lays a poor foundation for this doctrine. Indeed, this interpretation of Gully is both inaccurate and anachronistic. In this same vein, I note that the Supreme Court’s contemporary use of the term “claim” subsumes the very notions of right and cause of action that the claim-centric view aims to avoid, and that a claim-centered view is likely to cause more practical havoc than help. Finally, I argue that this return to Gully is more emblematic of a pragmatic approach to § 1331 jurisdictional law, which I reject within the confines of the broader contemporary discussion regarding the role of “simple” versus “complex” jurisdictional regimes.
Lumen N. Mulligan,
Response and Rejoinder,
Gully and the Failure to Stake a 28 U.S.C. § 1331 "Claim",
89 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol89/iss2/6