Georgetown University Law Professor Carlos Vazquez has posted an article on SSRN recommending a reconceptualization of "arising under" jurisdiction (some of you may recognize it from the California Law Review in 2007):
Part I of this Article explains why the "federal question" analysis in Osborn is unpersuasive, and how a "federal claim" analysis would have provided a more convincing, and narrower, rationale for the holding. Part II explains why the Court’s "federal question" analysis in Verlinden is similarly unpersuasive and how a "federal claim" analysis would once again have produced a more convincing decision. Part III explores the outer boundaries of federal claim theory. I conclude that federal claim analysis supports a congressional grant of jurisdiction over any class of cases over which Congress has legislative power. Congress may confer jurisdiction over such cases by creating a federal claim that adopts or incorporates as federal law whatever state or foreign law would otherwise govern the dispute. The effective scope of Congress’s power under the adoption approach would be the same as under Professor Wechsler’s version of protective jurisdiction. Professor Wechsler was right to claim that the greater power to confer jurisdiction by displacing state law includes the lesser power to confer jurisdiction without displacing state law. Federal claim analysis shows that Congress may confer jurisdiction over claims it creates in order to make available a more (or less) hospitable forum for the adjudication of such claims. That justification for conferring jurisdiction is also compelling when the federal claim that Congress has created is to be resolved by reference to federal law that does not differ in content from the state or foreign law that would otherwise apply.
You can download it here.
–Counseller/jtf