The Federal Preemption Question - A Federal Question - An Analysis of Federal Jurisdiction over Supremacy Clause Issues
This Article focuses on the issue of simplicity and predictability in analyzing federal question jurisdiction and recommends making federal court jurisdiction, in the area of federal preemption, consistent with logic. Federal question jurisdiction should be based on the source of the controlling substantive law. This approach is more logical, and therefore easier to understand. It is also more certain and therefore more predictable since it bases jurisdiction on the more realistic standard of governing law, rather than on speculation as to which party is the aggressor. This Article is not a recommendation to expand federal court jurisdiction; it is a recommendation that federal question jurisdiction, at least in the area of federal preemption, function as a procedural doctrine. It is hoped that the result would be a reduction in "procedural" litigation. Although the Supreme Court has recently addressed this issue in Franchise Tax Board v. Construction Laborers Vacation Trust, it has not resolved the difficulties involved in its pleading analysis. The Franchise Tax Board decision looked at the jurisdictional issue in the context of a state declaratory judgment action that had been removed to federal court. A critical analysis of the decision will be made after exploring the development of the existing doctrine.
A. Mark Segreti Jr., The Federal Preemption Question - A Federal Question - An Analysis of Federal Jurisdiction over Supremacy Clause Issues, 33 Clev. St. L. Rev. 653 (1984-1985)