So many of the great Justices have had their moments trying to develop language that explains when cases do, and do not, “arise under” federal law. From Marshall in Osborn v. Bank of the United States, to Holmes in American Well Works v. Layne & Bowler Co., to Cardozo in Gully v. First National Bank in Meridian, so many have tried, but few who would study the subject would think the Court has ever made the matter clear.

The current Justices try their hand at this problem on November 28, when they will hear oral arguments in Mims v. Arrow Financial Services, LLC.  The case involves the federal Telephone Consumer Protection Act (the TCPA), which explicitly creates a cause of action to enforce a variety of consumer rights involving telemarketing and provides that aggrieved consumers “may” bring an action “in an appropriate” state court.

The lower courts have divided sharply over two understandings of the statute.  One view (the majority view in the courts of appeals, and the holding of the Eleventh Circuit below) is that by explicitly stating that consumers can bring their case in state court, without mentioning federal court, Congress intended to create exclusive state jurisdiction.  The minority view (associated with opinions by Frank Easterbrook and Jeffrey Sutton) is that the “may” language simply authorizes state jurisdiction; it does nothing to divest the federal courts of jurisdiction over the cause of action Congress created in the TCPA.

If there is a line we can be sure the Court’s opinion will contain, it is Holmes’s aphorism that a “suit arises under the law that creates the cause of action.”  There can be little doubt the Court will start from that premise; the principal question is whether Arrow Financial Services can come up with anything to move the Justices off of it.  Because the cause of action under the TCPA plainly was created by federal law, the case has to “arise under” federal law for jurisdictional purposes unless Congress has done something to depart from that traditional understanding.

Arrow’s counsel do an admirable job of arguing that the statute was intended to divest federal courts of jurisdiction over these cases.  But at bottom, their efforts confront the constitutional dubiety of Congress enlisting state courts to hear a cause of action Congress has debarred from federal courts.  They also confront previous cases suggesting that great clarity is needed to divest federal courts of jurisdiction over federally created causes of action.

Given the centrality of these questions to the role of the federal courts in our constitutional system, we can expect the Justices to be fully engaged in this case.  And that might even lead them to challenge Mims’s counsel closely in the oral argument.  In the end, however, the Court seems most likely to reverse the Eleventh Circuit and take the easy path following Holmes: the TCPA action can be heard in federal court because Congress created it.

Posted in Mims v. Arrow Financial Services, Featured, Merits Cases

Recommended Citation: Ronald Mann, Argument preview: Court takes up classic jurisdictional question, SCOTUSblog (Nov. 21, 2011, 11:40 AM), http://www.scotusblog.com/2011/11/argument-preview-court-takes-up-classic-jurisdictional-question/