Grable Test - Elements:
(1) Does the state law claim necessarily raise a federal issue/question/interpretation?
1. Is the federal question part of a prima facie case P has to prove? LOOK AT THE WPC. Does resolution of the federal question determine whether P can recover? (i.e. if decided one way, P can recover, but decided the other way P is barred from recovery?)
2. If not necessary, go to state court
(2) Is the federal issue in the state law claim actually disputed/ disputable?
1. There must be a disagreement between the parties on the federal issue, and
2. There must be a question of law that has not been resolved (must be disputable - not already decided or clear issue)
a. i.e. Issue is answered by the Supreme Court, or is definitive precedent set?
b. Usually disputable unless SCOTUS has decided issue, and disputable if statute is unclear/arguable
c. If not disputed, go to state court
(3) Is the federal issue in the state law claim of substantial importance to the federal system?
1. Impact of decision + Federal Interest
a. If a lot of people will care about dispute and decision; Who will care about this issue?
i. If specific to the facts of the case, probably not substantial importance
b. Reasonable, not insubstantial, not attenuated, not plainly devoid of merit, not obviously frivolous, not unsound because precedent forecloses litigation on this subject and leaves no room for inference
2. Tools to use to argue in favor: Relevance/importance to the federal system, PROA under federal law, uniformity, expertise
3. Private ROA in the embedded federal law is relevant to substantiality and balance
a. Circuit split on: if there is no federal private right of action, no substantiality to the Federal question
i. Compare Merrell Dow (if there is no federal right of action, there is no substantial federal question) and Empire (holding Grable was a slim category where the question of law predominated instead of question of fact) WITH Grable (can still be substantial even if no federal right of action)
4. If something is a question of law and not a question of fact, it is more likely to be substantial
a. Question of law= Grable and what the federal tax code requires for notice
b. Question of fact= Merrell Dow and whether something meets the federal standards
5. THINK ABOUT: distinguishing Grable from Gunn
a. Consider outcome of patent law even if there was legal malpractice - still would not revive the patent
b. Whereas if there was malpractice on a civil rights issue, legal malpractice could revive a federal case?
(4) Does hearing the question in a federal forum disturb a congressionally approved balance of federal and state judicial responsibilities?
1. Sort of a question of federalism. But—Concerned about federal court's workload (would it open the floodgates of litigation if they allow this one case to proceed in federal court? Was the floodgate intended to be opened by Congress?)
2. Is this the kind of case that federal courts should hear to promote uniformity and prevent bias? Did Congress intend for federal courts to hear this type of case?
3. For EXAM: ARGUE BOTH WAYS. If really, really cannot decide what the balance should be, could say probably no (based on Gunn)