Publication Date

Winter 2022

Document Type



In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and toward a more congressional-intent position. And I close by contending that the Roberts Court’s view is more at home with the legal-process-school tradition than is the traditional Holmes test.

Publication Title

Stetson Law Review