NCJ Number
172028
Journal
Illinois Bar Journal Volume: 85 Issue: 11 Dated: (November 1997) Pages: 548-553
Date Published
1997
Length
6 pages
Annotation
This article examines conflicting approaches to federal question jurisdiction and proposes a pragmatic solution.
Abstract
In Merrell Dow Pharmaceuticals, Inc. v Thompson, the plaintiffs brought suit in state court alleging that the defendant's drug had caused birth deformities in their children. When the case reached the Supreme Court, the Court noted that Federal law did not create the cause of action, and no federal question jurisdiction existed. Lower Federal courts have offered inconsistent interpretations of Merrell Dow, and a number of distinct readings have emerged: (1) the per se approach; (2) the "threshold" approach; and (3) the "flexible" approach. The best reading of Merrell Dow is the "flexible" approach developed by the second, sixth and Federal circuits. This interpretation most accurately accounts for the traditional analysis of cases where a Federal issue is implicated in a State cause of action, while leaving room for a nuanced, case-by-case assessment of the propriety of Federal question jurisdiction. Notes