Some Problems in Federal Question Jurisdiction

Congress has given the federal district courts original and removal jurisdiction of all civil actions arising under the Constitution or laws of the United States, but the power of these courts to hear such cases has been restricted by the Supreme Court of the United States. The Supreme Court holds that the district courts have jurisdiction of a case if a federal question is raised in the complaint, but jurisdiction cannot be based on a federal question in the answer. This means that the district courts are closed to many cases that involve a substantial federal issue, while many cases that contain no real federal issue may be tried in a district court. This anomalous situation has been criticized in several articles, but it was recently defended in an article in this Review entitled "Reappraisal of Federal Question Jurisdiction." Insofar as it upholds the rule that federal jurisdiction should exist if the complaint raises a federal question this article is correct, but it is wrong in approving the rule that the district courts should not have jurisdiction of cases that contain a federal question in the answer. Therefore, this paper will make a further appraisal of the power of district courts to hear such cases.