ijgls.indiana.eduijgls.indiana.edu/.../2011/08/FedJur_Outline_Scott_Spring2011.docx · Web viewPart 1: The Federal Judicial System. Part 1.1: The Province and Duty of the Federal

FedJur Outline Page 1

Part 1: The Federal Judicial SystemPart 1.1: The Province and Duty of the Federal Courts

1. Article III of the United States Constitutiona. Reasons for the federal judiciary

i. Effectively implement the powers of the national governmentii. Fear that state courts might not fully enforce and implement

federal policies, especially when state and federal interests conflict

iii. Provide uniform interpretation of the Constitution and laws of the United States

iv. Assure protection of individual libertiesv. Resolve disputes between the states

b. Role of Article IIIi. Creates a federal judicial system

ii. Creates Supreme Court and permits establishment of lower courts

iii. Assures independence of federal judiciary by according all federal judges life tenure during good behavior and salaries that cannot be decreased during their time in office

iv. Defines the federal judicial power in terms of nine categories of “cases” and “controversies”

v. Allocates power between the Supreme Court and the lower federal courts

vi. Prescribes that the trial of all crimes, except in cases of impeachment, shall be by jury

vii. Requires that the trial shall occur in the state where the crime was committed

2. Judiciary Act of 1789a. Created lower federal courtsb. Established that federal courts may hear a case only if there is both

constitutional and statutory authorityc. Structured judiciary in three levels (Supreme Court/Circuit

Courts/District Courts)d. Authorized the Supreme Court to review final judgments of state

courts where federal questions were raised and the state court decided against the federal claim or defense

e. Granted jurisdiction to the new trial courts over suits between citizens of different states

f. Authorized defendants in certain types of cases filed in state court to “remove the cause for trial” to the federal court in the state

3. Marbury v. Madison and the Meaning of Article IIIa. Rule: The Supreme Court has the power, implied from the

Constitution Article VI § 2, to review acts of Congress, and if they are found to be unconstitutional, to declare them void.

b. Five important principles concerning the federal judiciary


i. Established the power of the federal courts to review the actions of the executive branch of government

1. No person, not even the president or executive officials, can ignore the law

2. The judiciary could, assuming proper jurisdiction, issue a writ of mandamus to the executive

ii. Announced that there was a category of issues, termed political questions, that were not reviewable by the federal courts

1. Distinction between matters committed solely to the executive’s discretion and those where an individual right was at stake

2. Former is political question and nonjusticiableiii. Established that Article III creates the ceiling on the Supreme

Court’s original jurisdiction, so Congress cannot authorize original jurisdiction greater than that provided for within Article III

1. Statute provided Supreme Court original jurisdiction, this grant of authority was unconstitutional

2. Principle that federal courts are courts of limited jurisdiction

iv. Established the power of the federal courts to declare federal statutes unconstitutional

1. Constitution imposes limits on government powers and those limits are meaningless unless subject to judicial enforcement

2. Court’s authority to decide cases arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter

v. Established the Court as the authoritative interpreter of the Constitution [but there are alternative views]

1. No authoritative interpreter of the Constitution, each branch of government interprets for itself

2. For each part of the Constitution, one branch of government is assigned the role of serving as the final arbiter of disputes as to the Constitution’s meaning, but it is not the same branch for all parts of the Constitution

3. Judiciary is authoritative interpreter of the meaning of all constitutional provisions

4. Central Themes of Federal Jurisdiction – Two major policy considerationsa. What is the proper role of the federal courts relative to the other

branches of government?b. What is the proper role of the federal courts relative to the states and

especially to the state courts?


Part 1.2: Scope of the Judicial Power1. Subject Matter Jurisdiction: legal authority of a court to hear and decide a

particular type of case2. Federal courts are courts of limited jurisdiction

a. Federal court may adjudicate a case only if there is both constitutional and statutory authority for federal court jurisdiction

b. Presumption against federal court jurisdictionc. Subject matter jurisdiction cannot be gained by consentd. Federal courts may raise objections to subject matter jurisdictione. State courts have concurrent jurisdiction with federal courts over all

matters within federal jurisdiction, unless there is a specific federal statute creating exclusive federal jurisdiction

f. If both personal jurisdiction and subject matter jurisdiction are disputed in a case, a federal court may dismiss the matter for lack of personal jurisdiction without reaching the limit of whether there is subject matter jurisdiction

g. If a federal court dismisses a case, pursuant to a settlement, the court lacks subject matter jurisdiction to have continuing involvement in the matter

3. Federal Question Jurisdiction – Constitutional and statutory provisions interpreted differently

a. Constitutional provision interpreted very expansively, allowing federal jurisdiction whenever a federal law is a potentially important ingredient in a case

b. Statutory provision, a case arises under federal law if it is apparent from the face of the plaintiff’s complaint either

i. That the plaintiff’s cause of action was created by federal law; or

ii. That the plaintiff’s cause of action is based on state law, but a federal law that creates a cause of action is an essential component of the plaintiff’s complaint

4. The meaning of “arising under” federal law for the purposes of Article IIIa. Cohens v. Virginia

i. Rule: A case in law or equity consists of the right of the one part, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct interpretation depends on the construction of either.

ii. Divides nine categories of cases into two “classes”1. Character of the cause, whoever may be the parties:

extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the parties


2. Character of the parties: extends jurisdiction to the specified parties, it is entirely unimportant what the subject of controversy is

b. Osborn v. Bank of the United Statesi. Rule: When a question to which the judicial power of the Union

is extended by the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of law or fact may be involved in it.

ii. Broad construction of what cases arise under federal law (constitutional authorization of federal question jurisdiction)

5. Meaning of “arising under” federal law for purposes of the federal question jurisdiction statute

a. Case arises under federal law if it is based on a cause of action created by federal law

b. Even if a plaintiff does not allege a cause of action based on federal law, there is a federal question if it is clear from the face of the plaintiff’s complaint that a federal law that creates a cause of action or that reflects an important national interest is an essential component of the plaintiff’s state law claim

Part 2: JusticiabilityPart 2.1: Justiciability & Advisory Opinions

1. Policies underlying justiciability requirementsa. Closely tied to separation of powersb. Conservation of judicial resources, allowing the federal courts to focus

their attention on the matters most deserving of reviewc. Intended to improve judicial decision-making by providing the federal

courts with concrete controversies best suited for judicial resolutiond. Promotes fairness, especially to individuals who are not litigants

before the court2. Prohibition against advisory opinions

a. Separation of powers is maintained by keeping the courts out of the legislation process

b. Judicial resources are conserved because advisory opinions might be requested in many instances in which the law ultimately would not pass the legislature

c. Helps ensure that cases will be presented to the Court in terms of specific disputes, not as hypothetical legal questions

3. Criteria to avoid being an advisory opiniona. Must be an actual dispute between adverse litigantsb. Must be substantial likelihood that a federal court decision alone in

favor of a claimant will bring about some change or have some effect


Part 2.2: Constitutional Standing1. Standing: determination of whether a specific person is the proper party to

bring a matter to the court for adjudication2. Values served by limiting standing

a. Promotes separation of powers by restricting the availability of judicial review

b. Serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome

c. Improves judicial decision-making by ensuring that there is specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter

d. Serves values of fairness by ensuring that people will raise their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered

3. Three constitutional requirements for standinga. Plaintiff must allege that he or she has suffered or imminently will

suffer an injuryb. Plaintiff must allege that the injury is fairly traceable to the

defendant’s conductc. Plaintiff must allege that a favorable federal court decision is likely to

redress the injury4. Injury

a. What does it mean to say that a plaintiff must personally suffer an injury?

i. One simply does not have standing to sue in federal court unless he can allege the violation of a right personal to him. (Allen v. Wright)

ii. Plaintiff seeking injunctive or declaratory relief must show a likelihood of future harm

iii. A litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. (Lujan v. Defenders of Wildlife)

b. What types of injuries are sufficient for standing?i. Injuries to common law rights: YES

ii. Injuries to constitutional rights: YES, with two qualifications1. Necessary to decide which constitutional provisions

bestow rights2. What facts are sufficient to establish such an injury

iii. Injuries to statutory rights: YES1. BUT very broad congressional authorizations for

standing will not be allowed


2. The Court may interpret statutes authorizing any citizen to sue to expand standing to the maximum allowed by Article III

iv. Other injuries sufficient to standing1. YES: claim of an aesthetic or environmental harm,

possible diminution of water allocations, economic harms or facing possible criminal prosecutions, loss of right to sue in the forum of one’s choice

2. NO: claims of being stigmatized by the government’s policy, marital happiness being adversely affected

5. Causation and redressabilitya. Allen v. Wright: claim stated an injury, but denied standing based on

an absence of “causation”b. Massachusetts v. EPA: A plaintiff has standing if it demonstrates a

concrete injury that is both fairly traceable to the defendant and redressable by judicial relief.

c. Criticisms and defenses of this requirementi. Undesirable because it is an improper determination to make

on the basis of the pleadingsii. Inherently unprincipled because it depends entirely upon how

a court chooses to characterize the plaintiff’s injuryiii. Inherently unprincipled in terms of what constitutes a

sufficient likelihood of solution to justify standingiv. Court manipulates causation and redressability based on its

views of the merits6. Special standing problems: Organizations, legislators, and government

entitiesa. Association or organization

i. May sue based on injuries to itself or based on injuries to its members

ii. A claim that it is statistically likely that some of the party’s members will visit the affected lands is insufficient to support Article III standing. (Summers v. Earth Island Institute)

b. Legislators i. Standing for injuries that they personally suffer

ii. Not standing when sued on the basis of injuries to his or her ability to perform as a representative unless they have been singled out for specially unfavorable treatment as opposed to other members of their bodies or that their votes have been denied or nullified

c. Government entitiesi. May sue to protect its own interests, have standing based on

injuries suffered when they act in a proprietary capacityii. States and local governments have standing to challenge

interference with the performance of their duties as


governments, but may not sue the federal government unless to protect their own sovereign or proprietary interests

Part 2.3: Prudential Standing1. Constitutional v. prudential requirements

a. Some of the justiciability doctrines are a result of the Supreme Court’s interpretation of Article III of the United States Constitution

b. Other justiciability doctrines are derived not from the Constitution, but instead from prudent judicial administration

c. Distinction is important because Congress, by statute, may override prudential, but not constitutional, restrictions

2. Three prudential requirements for standinga. Party generally may assert only his or her own rights and cannot raise

claims of third parties not before the courtb. Plaintiff may not sue as a taxpayer who shares a grievance in common

with all other taxpayersc. Party must raise a claim within the zone of interests protected by the

statute in question3. Limitation on third-party standing

a. Objectivesi. Avoid the adjudication of rights which those before the court

may not wish to assertii. Improves the quality of litigation and judicial decision-making

iii. Third parties themselves usually will be the best proponents of their own rights

iv. Decisions will be improved in a concrete factual situation involving an injury to a party to the lawsuit

b. Exception: where the third party is unlikely to be able to suei. If there are substantial obstacles to the third party asserting

his or her own rights andii. If there is reason to believe that the advocate will effectively

represent the interests of the third partyc. Exception: close relationship between plaintiff and third party

i. It is generally appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision. (Singleton v. Wulff)

ii. The general rule is that a party must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. However, there may be circumstances where it is necessary to grant a third party standing to assert the rights of another, but this exception is limited by requiring that a party seeking third-party standing make two additional showings: (1) whether the party asserting the right has a “close” relationship with the person who possesses the right, and (2) whether there is a “hindrance” to


the possessor’s ability to protect his own interests. (Kowalski v. Tesmer)

4. Prohibition against generalized grievancesa. Prevents individuals from suing if their only injury is as a citizen or a

taxpayer concerned with having the government follow the lawb. Where a harm is concrete, though widely shared, the Court has found

injury in factc. Unclear whether this is based on constitutional or prudential

considerationsd. Sequence of Decisions

i. Flast v. Cohen: A federal taxpayer must still have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.

ii. Logical nexus between the status asserted by the litigant and the claim he presents

1. Taxpayer must establish a logical link between that status and the type of legislative enactment attacked

2. Taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged

iii. Court has been more generous in conferring standing based on municipal taxpayer status

iv. Hein v. Freedom from Religion Foundation, Inc.: The party who invokes taxpayer standing must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. In Flast v. Cohen, this Court recognized a narrow exception to the general rule against federal taxpayer standing: a plaintiff asserting an Establishment Clause claim has standing to challenge a law authorizing the use of federal funds in a way that allegedly violates the Establishment Clause.

5. Requirement that plaintiff must be within zone of interests protected by the statute

a. Applies when a person is challenging an administrative agency regulation that does not directly control the person’s actions

b. Court is inconsistent about whether it is a standing requirementc. Likely applies only in cases under the Administrative Procedures Act


Part 2.4: Ripeness1. Whether there is a controversy between the parties that requires

adjudication, or whether there are contingencies that might avoid the need for the courts to intervene

2. Standing focuses on whether the type of injury alleged is qualitatively sufficient to fulfill the requirements of Article III and whether the plaintiff has personally suffered that harm, whereas ripeness centers on whether that injury has occurred yet

3. When a party may seek pre-enforcement review of a statute or regulation4. Ripeness asks whether there is a controversy between the parties that

requires adjudication and has two components: (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. (Doe v. Bush)

5. Criteria for determining ripeness (both must be met)a. Hardship to the parties of withholding court consideration

i. Hardship from choice between possibly unnecessary compliance and possible conviction

ii. Hardship where enforcement is certainiii. Hardship because of collateral injuriesiv. Hardship is a prerequisite for ripenessv. The mere existence of a state penal statute would constitute

insufficient grounds to support a federal court’s adjudication of its constitutionality in proceedings brought against the State’s prosecuting officials if real threat of enforcement is wanting. (Poe v. Ullman)

b. Fitness of issues for judicial decision: is there significant gain to waiting for an actual prosecution?

Part 2.5: Mootness1. Whether the controversy between the parties has ended in such a manner

that there remains no useful relief that a court could give2. Doctrine that assures that standing and ripeness continue to exist from the

time the lawsuit is filed until its final resolution3. Procedurally, mootness can be raised by a federal court on its own at any

stage of the proceedings4. Circumstances that might cause a case to be moot

a. Criminal defendant dies during appeals process or civil plaintiff dies where cause of action does not survive death

b. Parties settle the matterc. Challenged law is repealed or expires

5. Three “critical” differences between standing and mootnessa. Allocation of the burden to prove that a case is justiciable when a

defendant voluntarily ceases the offending behaviorb. While mootness doctrine permits the Court to hear some issues that

have become moot, but standing admits no similar exceptions


c. Purposes behind the doctrines differ6. Exceptions to the mootness doctrine

a. Collateral consequences: some injury remains that could be redressed by a favorable federal court decision

i. Criminal cases: when the defendant continues to face adverse consequences of the criminal conviction

ii. Civil cases: so long as the plaintiff continues to suffer some harm that a favorable court decision

b. Wrongs capable of repetition yet evading reviewi. Injuries that occur and are over so quickly that they always will

be moot before the federal court litigation process is completed

ii. Two requirements1. Injury must be of a type likely to happen to the plaintiff

again2. Must be a type of injury of inherently limited duration

so that it is likely to always become moot before federal court litigation is completed

iii. Examples: court orders imposing prior restraints on speech, pregnancy, challenges to election laws

c. Voluntary cessationi. Not to be dismissed as moot if the defendant voluntarily ceases

the allegedly improper behavior but is free to return to it at any time

ii. A case may be mooted by the defendant’s voluntary conduct is subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. (Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.)

iii. Statutory change: normally enough to render a case moot, even though the legislature possesses the power to reinstate the allegedly invalid law after the lawsuit is dismissed

iv. Compliance with a court order: renders a case moot only if there is no possibility that the allegedly offending behavior will resume once the order expires or is lifted

d. Class actionsi. Properly certified class action suit may continue even if the

named plaintiff’s claims are rendered mootii. An action brought on behalf of a class does not become moot

upon expiration of the named plaintiff’s substantive claim, even though class certification has been denied. The proposed representative retains a “personal stake” in obtaining class certification sufficient to assure that Article III values are not undermined. (United States Parole Commission v. Geraghty)


Part 2.6: Political Question1. Certain allegations of unconstitutional government conduct should not be

ruled on by the federal courts even though all the jurisdictional and other justiciability requirements are met

2. Subject matter that the Court deems to be inappropriate for judicial review3. Why is this doctrine confusing?

a. “Political question doctrine” is a misnomer, the federal courts deal with political issues all of the time

b. Court has defined it very differently over the course of American history

c. Court has failed to articulate useful criteria for deciding what subject matter presents a nonjusticiable political question

4. Reasons for this doctrinea. Accords the federal judiciary the ability to avoid controversial

constitutional questions and limits the courts’ role in a democratic society

b. Allocates decisions to the branches of government that have superior expertise in particular areas

c. Federal courts’ self-interest disqualifies them from ruling on certain matters

d. Separation of powers grounds, minimizes federal intrusion into the operations of the other branches of government

5. Criticisms of this doctrinea. Judicial role is to enforce the Constitution, it’s inappropriate to leave

constitutional questions to the political branches of governmentb. Judiciary’s fragile legitimacyc. Confuses deference with abdication

6. Constitutional or prudential?a. Constitutional if thought to be based on separation of powers or

textual commitment to other branches of governmentb. Prudential if it reflects the Court’s concerns about preserving judicial

credibility and limiting the role of an unelected judiciary in a democratic society

7. Example: impeachment and removal from officea. A controversy is “nonjusticiable” (involves a political question) when

there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. (United States v. Nixon)

b. Leaves open the question of whether all challenges to impeachment are nonjusticiable political questions


Part 3: Congress and the CourtsPart 3.1: Supreme Court Appellate Jurisdiction & Judicial Decision-Making

1. What is Congress’ power over federal court jurisdiction?a. If Article III = floor of federal jurisdiction, then minimum jurisdiction

that must be vested in federal courts, then the federal courts must be able to hear all of the matters described in Article III. Congress might add to the list, but cannot subtract from it.

b. If Article III = ceiling, the maximum jurisdiction allowed, then Congress might remove matters from federal court authority but cannot add to it.

c. If Article III = both floor and ceiling, then federal courts must be able to hear all matters outlined in Article III, but no more, so Congress can neither add to nor subtract from federal jurisdiction under this view.

d. If Article III ≠ floor or ceiling, then it is simply an initial allocation and Congress may add to or subtract from federal court jurisdiction as it deems appropriate

2. Most jurisdiction stripping is meant to achieve a change in the substantive law by a procedural device, constitutionality uncertain

a. Doubts about the constitutionality of jurisdictional limitations partially account for Congress’s failure to adopt such statutes

b. Federal courts undoubtedly would have jurisdiction to decide the constitutionality of statutes denying federal courts the authority to hear particular types of cases

3. Congressional Restriction of the Jurisdiction of the Supreme Courta. Supporters of jurisdiction stripping claim that the unambiguous

language of Article III authorizes Congress to create exceptions to the Supreme Court’s jurisdiction and such exceptions include the ability to preclude review of particular topics

i. Congress has the authority to withhold appellate jurisdiction from the Supreme Court at any time. (Ex parte McCardle)

ii. McCardle can be distinguished because the Supreme Court was considering the constitutionality of a statute that did not completely preclude Supreme Court review, but rather only eliminated one of two bases for its authority (habeas corpus to federal prisoners)

b. Opponents of jurisdiction stripping proposals take a very different view of the language of Article III

i. Some argue that the term “exceptions” in Article III was intended to modify the word “fact”

ii. Others argue that even though Congress is given the authority to limit Supreme Court jurisdiction under the text of Article III, this power (like all congressional powers) cannot be used in a manner that violates the Constitution


iii. The 1870 proviso was unconstitutional, and Congress has exceeded its power by invading the province of the judicial branch by prescribing the rule of decision in a particular cause. (United States v. Klein)

1. Opponents to jurisdiction stripping argue that Klein establishes that Congress may not restrict Supreme Court jurisdiction in an attempt to dictate substantive outcomes

2. Supporters of jurisdiction stripping argue that Klein establishes only that Congress may not restrict Supreme Court jurisdiction in a manner that violates other constitutional provisions

iv. Robertson v. Seattle Audobon Society: Supreme Court read Klein as applying in a situation where Congress directs the judiciary as to decision-making under an existing law and not applying when Congress adopts a new law

c. Plaut v. Spendthrift Farm, Inc.i. Rule: Congress may not retroactively command the federal

courts to open final judgments. When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly.

ii. Separation of powers violation because the statute overturned a Supreme Court decision and gave relief to a party that the Court had said was entitled to none

iii. Distinguished from Klein because Plaut did not involve any attempt by Congress to strip the federal court of jurisdiction

d. Miller v. French i. The automatic stay of the statute does not unconstitutionally

“suspend” or reopen a judgment of an Article III court.ii. An injunction is not the last word of the judicial department

because it is always open to modification.

Explanation of Klein Viable?New rule during pending case No (Schooner Peggy)Intended to affect case No (Robertson/Wheeling Bridge)Favors one partyFavors the government No (Robertson)Gives different effect to evidence No (Miller)Dictates law to interpret the Constitution YesDictates results without changing law (legislative deception)

Yes

Compels judiciary to act against its judgment Yes


iii. Congress can change the substantive law and require that injunctions be modified to be in accord with the new law.

iv. Distinguished from Klein based on this change in the substantive law

4. Policy Arguments and Responsesa. Supporters of proposals to limit Supreme Court jurisdiction under the

“exceptions and regulations” clause argue that such congressional power is an essential democratic check on the power of an unelected judiciary

b. But this argument is based on a misdefinition of democracy and is inconsistent with the purposes of the Constitution

c. Limiting the federal courts jurisdiction does not overrule prior judicial decisions, effect of jurisdiction would be to freeze the existing law and might bring about a substantive change in the law

Part 3.2: Federal Court Jurisdiction1. Four different positions as to the constitutionality of congressional

restrictions of lower federal court jurisdictiona. Approach 1: Federal court must have the full judicial power

i. Lower courts created by Congress must have the full judicial power described in Article III

ii. This theory has not been followed at any point in American history

b. Approach 2: Congressional discretion to decide jurisdictioni. Congress has the authority to determine the jurisdiction of the

federal courts because Congress has discretion as to whether to establish such tribunals

ii. Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. (Sheldon v. Sill)

iii. Supreme Court has adopted this position in a number of other decisions

c. Approach 3: Constitutional requirement for some federal courtsi. Unlike the first two approaches which begin with the

assumption that Congress has complete discretion as to whether to create lower federal courts, this position is premised on the contrary claim that, at least for some issues, lower federal courts must exist

ii. Martin v. Hunter’s Lessee: If Congress could refuse to create lower federal courts, there would be at least some categories of cases that could never be heard in federal court

d. Approach 4: Specific constitutional limitsi. Congress has discretion both to create lower federal courts and

to determine their jurisdiction, but Congress may not restrict


jurisdiction in a manner that violates other constitutional provisions

ii. Where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. (Webster v. Doe)

2. Congressional power to enlarge the jurisdiction of the federal courtsa. Generally, Congress may not enlarge the jurisdiction of the federal

courtsb. But there are some instances where specialized Article III can hear

matters in addition to those specified in the Constitution, but these cases seem to be exceptions that emerged from longstanding historical practices

3. Congressional power to have state courts decide federal law mattersa. Clearly established that state courts must decide questions of federal

law unless a federal statute mandates exclusive federal court jurisdiction

b. Strong authority from the Supreme Court that the state courts cannot discriminate against federal claims

c. If a federal law expressly specifies the procedure to be used with regard to a particular cause of action, then of course states must follow it

d. Absent such clear statutory intent, Supreme Court generally has held that state courts are not obligated to follow federal procedural rules so long as the state procedures do not unduly burden the federal rights

Part 3.3: Non-Article III Courts and Judges1. Article III v. Article I courts

a. Article III court judges have life tenure, assuming good behavior, and salaries that cannot be decreased during their terms of office

b. Article I courts (or “legislative courts”) have judges without life tenure or salary guarantees

2. Reasons for creating Article I courtsa. Avoid establishing a large number of additional judgeshipsb. Allow agencies that also posses rule-making and investigative powers

to decide particular controversies within their expertisec. Advantages of cost-savings and efficiencyd. Preference that the judges are less likely to be independent

3. Should all federal courts be Article III tribunals?a. No longer realistic to argue that it is always unconstitutional for

Congress to create legislative courts to decide Article III judicial business

b. Unlikely that the Supreme Court would ever declare all legislative courts unconstitutional or that the Court would ever rule that all legislative courts are permissible regardless of circumstances


4. Four situations in which legislative courts are permissible:a. U.S. possession and territoriesb. Military mattersc. Civil disputes between the U.S. and private citizensd. Criminal matters or for disputes between private citizens where the

legislative court serves as an adjunct to an Article III court that can review the legislative court’s decisions

i. Bankruptcy courts were not adjuncts of Article III courtsii. Article III jurisdiction may not be conferred on non-Article III

courts. (Northern Pipeline Construction Co. v. Marathon Pipe Line Co.)

iii. Balancing the adverse impact on Article III values with the justification for use of a legislative court

1. Two goals of Article IIIa. Ensuring fairness to litigants by providing an

independent judiciaryb. Maintaining the “structural” role of the judiciary

in the scheme of separation of powers2. Congress may grant pendent jurisdiction over state law

counterclaims to administrative agencies. (Commodity Futures Trading Commission v. Schor)

iv. General approach is to balance the benefit of using a legislative court with the harms in terms of fairness to the litigants and to the structure of separation of powers, inevitably requires case-by-case decision-making

Part 3.4: Remedies for Statutory Rights1. When may federal courts create private rights of action to enforce federal

laws that do not contain them?2. Statutes without private rights of action: where courts believe that a private

right of action would fulfill congressional intenta. Three different approaches

i. Court is willing to create a private right of action where it would help effectuate the purpose for a statute and if no legislative history mitigated against authorizing such a remedy

1. It is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose. (J. I. Case Co. v. Borak)

2. Allows federal courts to create a private right of action, in the absence of any express congressional authorization, if damages suits would help accomplish the legislative purpose for a statute

ii. More detailed inquiry into congressional intent1. Four-part test of relevant factors in determining

whether a private remedy is implicit in a statute not


expressly providing one: (1) if the plaintiff is one of the class for whose special benefit the statute was enacted, (2) if there is any indication of explicit or implicit legislative intent either to create a remedy or deny one, (3) if it is consistent with the underlying purpose of the legislative scheme to imply such a remedy for the plaintiff, and (4) if the cause of action is one traditionally relegated to state law so that it would be inappropriate to infer a cause of action based solely on federal law. (Cort v. Ash)

2. Supreme Court used this approach and for the most part generally refused to create causes of action

3. Title IX of the Higher Education Act contains an implied private cause of action. (Cannon v. University of Chicago)

iii. Court will create a private right of action only if there is affirmative evidence of Congress’s intent to create a private right of action

1. Court did not expressly discard Cort v. Ash, but generally seen as that

2. There is no private right of action to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. (Alexander v. Sandoval)

Part 3.5: Remedies for Constitutional Violations1. Suits against federal officers

a. Authority for suits against federal officialsi. No statute creating a cause of action against federal officers for

constitutional transgressionsii. Supreme Court has long held that federal officers may be sued

for injunctive relief to prevent future infringements of federal laws

b. Limitations on recoveryi. Whether and when a cause of action exists under Bivens

ii. Limits on the scope of constitutional protections have the obvious effect of restricting Bivens suits

c. Cause of action against federal officers for monetary reliefi. Individuals have an implied cause of action against federal

government officials who have violated their constitutional rights. (Bivens v. Six Unnamed Agents of Federal Bureau of Narcotics)

ii. Exceptions recognized in Bivens1. No cause of action if there are “special factors

counseling hesitation in the absence of affirmative action by Congress”


2. Court would not create a cause of action if Congress has specified an alternative mechanism that Congress believes provides an equally effective substitute

iii. The implied damages actions of Bivens are not extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. (Correctional Services Corporation v. Malesko)

d. Bivens suits against government and private entitiesi. Federal agency is not subject to liability for damages under

Bivensii. Eleventh Amendment bars Bivens suits against state

governmentsiii. No Bivens suits against private entities

2. Suits against the federal governmenta. United States government may not be sued without its consentb. Reasons for sovereign immunity

i. Operation of government would be hindered if the United States were liable for every injury it inflicted

ii. Liability cannot exist unless the law provides for itiii. Efficiency arguments, without it there would be a flood of

litigation against the U.S. and that money would be diverted from other government uses to pay off damage judgments against the federal government

c. Criticisms of sovereign immunityi. Anachronistic relic

ii. Inconsistent with a central maxim in this country, that no one, not even the government, is above the law

iii. Difficult to reconcile with the United States Constitutioniv. Effect is to cause lawsuits to be filed against the individual

government officersd. Injunctive relief against the United States

i. Injunctive relief allowed against federal officersii. Administrative Procedures Act specifically allows for suits for

injunctive relief to be brought against the United States, U.S. has waived its sovereign immunity in suits requesting other than monetary relief

Part 3.6: Appellate Review in the Federal System1. Supreme Court generally may only review the final judgment of a state’s

highest court or the final judgment of a United States Court of Appeals2. Benefits of the final judgment rule

a. Promotes judicial efficiencyb. Promotes expeditious resolution of proceedingsc. Provides a fully developed recordd. Promotes federalism


3. Justification for review without a final judgment: important when there is a lower court decision that infringes on important constitutional rights, and later review is either unavailable or ineffective in repairing the harms

4. Similarity in doctrines concerning the Supreme Court’s review of state court decisions and those of lower federal courts, difference in statutory requirements for finality

5. Review of the final judgment of a state’s highest courta. Review in the highest court in which review can be hadb. Individuals must exhaust all available appeals within the state court

systemc. “Final judgment or decree”

i. Decision is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”

ii. Four exceptions to the traditional rule of finality1. If no doubt as to the outcome of remaining proceedings2. Federal law issues will survive and necessitate Supreme

Court review3. When review is now or never4. Preserving Supreme Court review of important federal

issues6. Supreme Court review of final judgments of the United States Courts of

Appealsa. Review without a final judgment of a federal court of appeals

i. When federal jurisdictional statutes provide for appeals from federal district court decisions

ii. Supreme Court may review cases docketed in the court of appeals prior to the entry of a final judgment by the appeals court

iii. When the United States Court of Appeals issues a decision before the district court grants a final judgment

b. Collateral order doctrinei. Authority of a court of appeals to review a ruling of a district

court that is unrelated to the merits of that case and that allegedly threatens an important right, thus justifying immediate appellate review

ii. An order imposing sanctions on an attorney under FRCP 37(a)(4) is not a final decision for the purposes of the federal courts of appeals. (Cunningham v. Hamilton County, Ohio)

iii. The collateral order doctrine does not extend to disclosure order adverse to the attorney-client privilege. (Mohawk Industries, Inc. v. Carpenter)

Part 4: Federal Courts and StatesPart 4.1: State Sovereign Immunity & Source, Abrogation, and Waiver


1. Eleventh Amendment prohibits suits in federal courts against state governments in law, equity, or admiralty, by a state’s own citizens, by citizens of another state, or by citizens of foreign countries

a. No consensus among the Framers about whether state sovereign immunity survived Article III

b. Under the Eleventh Amendment, a suit directly against a state by one of its own citizens is not one to which the judicial power of the United States extends, unless the state itself consents to be sued. (Hans v. Louisiana)

c. Competing theories of the Eleventh Amendmenti. Restriction on subject matter jurisdiction of the federal courts

that bars all suits against state governments1. But neither the language nor the history of the Eleventh

Amendment justify reading it as creating a constitutional bar to suits against states by their own citizens

2. Hans v. Louisiana takes this viewii. Restriction on the subject matter jurisdiction only in

precluding cases being brought against states that are founded solely on diversity jurisdiction

2. Sovereign immunity bars suits against state governments in state court without their consent

3. Application of the Eleventh Amendment and Sovereign Immunity: What’s Barred and What’s Allowed

a. Suits barredi. Suits against a state government by citizens of another state or

citizens of a foreign countryii. Suits against a state by its own citizens

1. Because of the sovereign immunity recognized in the 11th Amendment, a federal court may not order a State to pay back funds unconstitutionally withheld from parties to whom they were due. (Edelman v. Jordan)

iii. State governments cannot be sued in state court without their consent (Alden v. Maine)

b. Suits allowedi. Federal courts suits by the U.S. government against a state

ii. Suits against a state by another stateiii. Suits against municipalities or political subdivisions of a state

4. State agencies = inconsistent, but four criteria may help, affirmative answers to these questions (especially the first) indicate that the entity will be protected by the Eleventh Amendment and negative answers suggest that the body will be deemed sufficiently independent from the state that the Eleventh Amendment does not apply

a. Will a judgment against the entity be satisfied with funds from the state treasury?


b. Does the state government exert significant control over the entity’s decisions and actions?

c. Does the state executive branch or legislature appoint the entity’s policymakers?

d. Does the state law characterize the entity as a state agency rather than as a subdivision?

5. Three primary mechanisms for circumventing the Eleventh Amendment and allowing federal courts to ensure state compliance with federal law

a. Suits against state officersi. Suits against state officers for injunctive relief

1. A lawsuit seeking an injunction against a state official did not violate the sovereign immunity of the state, because the state official was not acting on behalf of the state when he sought to enforce an unconstitutional law. (Ex parte Young)

2. Limits the effect of the Eleventh Amendment and ensures state compliance with federal law

3. But distinction between state and officers is fictional?a. State officer is the proper defendant in a lawsuit

to prevent the officer’s unconstitutional conductb. Young distinguishes between the state and its

officers in much the same way as the common law always as distinguished between a principal and its agent

ii. Suits against state officers for monetary relief1. Eleventh Amendment does not prevent suits against

state officers for money damages to be paid out of the officers’ own pockets, even when the damages are retrospective compensation for past harms

2. Eleventh Amendment does not prohibit a federal court from giving injunctive relief against a state officers even though compliance with the injunction will cost the stat a great deal of money in the future

3. Eleventh Amendment prevents a federal court from awarding retroactive relief (damages to compensate past injuries) when those damages will be paid by the state treasury (Edelman v. Jordan)

iii. Exceptions to Ex parte Young1. Bar on suits against state officers based on pendent

state claims2. Suits enforcing federal laws with comprehensive

enforcementa. Seminole Tribe v. Floridab. The Indian Commerce Clause does not grant

Congress the power to abrogate the sovereign immunity afforded to states under the 11th


Amendment, and the doctrine of Ex parte Young (allowing parties to seek relief against state officials for violations of the Constitution or laws of the United States) does not apply where Congress has already created what it deems a sufficient remedy.

b. States may waive their sovereign immunity and consent to suiti. Explicit waiver (state expressly agrees to be sued in federal

court) v. constructive waiver (not allowed!)ii. Mere fact that state accepts federal funds is not sufficient to

establish consent on the part of the state to be sued in federal courts (Edelman v. Jordan)

c. Litigation against the states pursuant to statutes adopted under the Fourteenth Amendment – Should Congress be able to abrogate the Eleventh Amendment?

i. Fitzpatrick v. Bitzer1. Statutes adopted under §5 of the Fourteenth

Amendment2. Congress’s intent must be explicit in order to override

state sovereignty pursuant to the Fourteenth Amendment

ii. Seminole Tribe v. Florida: Congress may abrogate the Eleventh Amendment only when acting under its §5 powers and not under any other constitutional authority

Part 5: Federal Courts and State OfficialsPart 5.1: §1983 Fundamentals

1. §1983 Basics and Jurisdictiona. Basis for most suits in federal courts against local governments and

state and local government officers to redress violations of federal law

Defendant Plaintiff Jurisdictional Basis Posture Immune?Chisholm State Citizen of

another stateDiversity (citizen-state)

Original in Supreme Court

No

Eleventh Amendment

State Citizen of another state

Diversity (citizen-state)

Yes

Cohens State Citizen of that state

Federal question Direct appeal from state court

No

Cases in Hans State Citizen of another state

Federal question Federal court Yes

Hans State Citizen of that state

Federal question Federal court Yes

Defendant Plaintiff Type of Right

Relief Immune?

Hans State Citizen of that state

Federal Money Yes

Ex parte Young

State official Citizens of that state

Federal Prospective relief No

Pennhurst State hospital and official

Citizens of that state

State Prospective injunction

Yes

Edelman State officials Citizen of that state

Federal Injunction, remit benefits (money)

Yes


b. Does not create federal court jurisdiction, creates a cause of action, a legal entitlement to relief, against those who, acting pursuant to state government authority, violate federal law

2. Meaning of “Under Color of State Law”a. Central question is whether §1983 applies only to actions taken

pursuant to official government policies or whether §1983 suits also may be brought against the unauthorized or even illegal acts by government officers

b. Pre-Monroe v. Pape: long-standing assumption that § 1983 reached only misconduct either officially authorized or so widely tolerated as to amount to a “custom or usage”

c. Monroe v. Papei. Rule: Congress meant to give a remedy to parties deprived of

constitutional rights, privileges, and immunities by an official’s abuse of his position under §1983.

ii. A narrow definition of “under color of law” would permit state governments to substantially immunize their officers from §1983 liability simply by enacting general statutes prohibiting officers from violating the Constitution or laws of the United States

d. Problems with defining “under color of law”i. Some might argue that there is not state action when a public

officer is acting without the authority of the government an even may be violating the law

ii. Problems arise in deciding when off-duty government officers are acting under color of law, as opposed to in a purely private nongovernmental role

iii. Public employees who have independent duties to a clientiv. Private actions, such as pursuant to a conspiracy, should be

deemed to occur under color of law because their close relationship to the acts of government officers

3. Exhaustion of state remedies is not required for §1983 litigation4. When may §1983 be used for constitutional claims?

a. Dormant commerce clause claims enforceableb. Preemption claims not necessarily enforceablec. §1983 suits not available for violations of Miranda v. Arizonad. Reputation alone is not a constitutionally protected interest. (Paul v.

Davis)e. Three major limitations on constitutional claims under §1983

i. Negligent conduct cannot constitute a deprivation of due process

ii. Random and unauthorized deprivation of property and liberty are not due process violations where the plaintiff seeks a post-deprivation remedy and an adequate one is available under state law


iii. The government generally has no duty to protect individuals from privately inflicted harms

5. Remedies available in §1983 litigationsa. What damages ay be recovered in successful §1983 actions?

i. Compensation for actual injuries suffered, includes not only financial harms incurred, but also emotional and psychological harms (emotional distress and humiliation)

ii. Punitive damages may be recovered from individual officers, although not from government entities

b. How should matters not specifically covered in §1983 or its legislative history be decided? State law should be used when §1983 is “deficient”

Part 5.2: Statutory Claims1. What federal laws may be the basis for a §1983 suit?2. Maine v. Thiboutot

a. §1983 encompasses claims based on purely statutory violations of federal law, and attorney fees may be awarded to the prevailing party in such an action.

b. Under the literal language of the statute, §1983 suits are available whenever any federal law has been allegedly violated.

3. Exception: §1983 is only available to enforce federal statutes that create rights

a. If Congress wishes to create new rights enforceable under §1983, it must do so in clear and unambiguous terms – no less and no more than is required for Congress to create new rights enforceable under an implied private right of action. (Gonzaga University v. Doe)

b. Court expressly ties the availability of a §1983 suit to whether there would be a private right of action to enforce the federal statute

4. Exception: §1983 may not be used to enforce statutes that explicitly or implicitly preclude §1983 litigation

a. Sea Clammersi. Comprehensive enforcement mechanisms in statutes

demonstrate congressional intent to preclude the remedy of suits under §1983

ii. Statutory enforcement scheme will be deemed comprehensive only when it provides for both administrative and judicial remedies

b. City of Rancho Palos Verdes v. Abramsi. The existence of a more restrictive private remedy for

statutory violations has been the dividing line between those cases in which an action would lie under §1983 and those in which it would not.


ii. Presumption against using §1983 to enforce a federal law, at least in circumstances where the federal statute is more restrictive than §1983 in the remedies it allows

Part 5.3: Government Liability1. Who is a “person” for purposes of §1983 liability? Municipal governments

a. Monroe v. Pape: municipal governments may not be sued in §1983, based on reading of the legislative history of §1983

b. Monell v. Department of Social Servicesi. Supreme Court expressly overruled Monroe’s limitation on

municipal liabilityii. Rule: Local governing bodies may be sued directly under

§1983 for monetary, declaratory, or injunctive relief where the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.

2. How is the existence of an official municipal policy proven? Five possible ways to establish the existence of a policy or custom sufficient to impose §1983 liability on a municipal government

a. Actions by the municipal legislative body constitute official policiesb. Official policies exist when there are actions by municipal actions or

boards that exercise authority delegated by the municipal legislative body

c. Actions by those with final authority for making a decision in the municipality constitute official policy for purposes of §1983

d. Establishing a government policy of inadequate training or supervision

i. Single instance of inadequate screening is not sufficient to prove that the municipality caused the injuries (Board of Country Commissioner of Bryan County, Oklahoma v. Brown)

ii. Unclear how much worse the criminal record would have needed to be for the Supreme Court to allow the verdict of liability to stand

iii. Unclear how much evidence there must be to support a jury’s verdict finding causation, but it is clear that the Court sees it as a legal question to be vigilantly monitored by the appellate courts

e. Establish municipal liability under §1983 would be to demonstrate the existence of a “custom”

3. Do municipalities have a good faith defense to liability? No qualified immunity for local governments

4. Are municipalities liable for punitive damages under §1983? No5. Who is a “person” for purposes of §1983 liability? State governments and

territories


a. Eleventh Amendment bars §1983 suits against state governments in federal court

b. Suits against states in state courts: states governments are not persons under §1983 and thus may not be sued in state court

c. State courts could not be sued in their official capacity in state court under §1983

Part 5.4: Official Immunity1. Issues in litigating immunity

a. The determination of immunity to be accorded as a defense in §1983 suit is entirely a question of federal law

b. The Supreme Court has held that a court ruling denying immunity is immediately appealable

c. The Supreme Court has held that the law is identical concerning the immunities accorded to federal officers

d. Immunities are a defense to liability, not an element of the plaintiff’ prima facie case

e. There is not a heightened pleading requirement in suits against individual officers

f. Distinction is frequently drawn between suits against an officer in his or her “official” as opposed to “individual” capacity

2. Absolute immunitya. Those performing judicial, legislative, and prosecutorial functionsb. Function, not title, receives this immunity

3. Qualified immunitya. Affirmative defense that the officer must raise, plaintiff’s complaint

need not allege absence of qualified immunityb. Government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (Harlow v. Fitzgerald)

c. Sequence of analysisi. In Saucier, this Court mandated a two-step sequence for

resolving government officials’ qualified immunity claims. ii. First, a court must decide whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right. iii. Second, if the plaintiff has satisfied this first step, the court

must decide whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct.

iv. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.

v. The Saucier procedure should not be regarded as an inflexible requirement, courts using that test may analyze the two steps in whatever order is most appropriate in a particular case. (Pearson v. Callahan)


d. How is it determined if there is clearly established law that a reasonable officer should know?

Money Damages InjunctionDefendant § 1983 “person”? Immunity? § 1983 “person”? Immunity?State No Sovereign No SovereignState Official (official capacity)

No Sovereign No, to extent acting constitutionally (kind of yes, kind of no)

Ex parte Young

State Official (individual capacity)

Yes Official Yes None

City Yes (Monell) None Yes None City Official (official capacity)

Yes None Yes None

City Official (individual capacity)

Yes Official Yes None

Part 6: Federal Courts and State CourtsPart 6.1: Supreme Court Review of State Courts & Substantive and Procedural Grounds

1. Supreme Court’s authority to review state court judgments and proceedingsa. Judiciary Act of 1789 granted Supreme Court the authority to review

state court decisions that ruled against federal law or federal government interests

b. Primary limitation on Supreme Court’s constitutional authority to review state court judgments is that such review is limited to questions of federal law

i. The Supreme Court will look at the federal law, but will not consider a state court’s decisions resting solely on state law. (Murdock v. City of Memphis)

ii. State court decisions regarding state law are unreviewablec. State law intertwined with federal issues, such as when the federal

Constitution protects a right created by state lawi. Where a question is primarily of state law, we accord

respectful consideration and great weight to the views of the state’s highest court but, in order that the constitutional mandate not become dead letter, we are bound to make a decision that involves an appraisal of the statutes of the State and the decisions of its courts. (Indiana ex rel. Anderson v. Brand)

ii. General rule is that Supreme Court may not review state court decisions on state law grounds, but there is a narrow exception where the state law issue is integrally tied to a federal question

2. How cases come to the United States Supreme Courta. Original jurisdiction

i. Generally1. Congress may not add to the Court’s original

jurisdiction (Marbury v. Madison)


2. Unresolved question of whether Congress may subtract from the Court’s original jurisdiction

3. Clearly established that Congress may establish concurrent jurisdiction in lower federal courts or in state judiciaries for questions arising within the Court’s original jurisdiction

4. Where such concurrent jurisdiction exists, the Court has discretion to refuse to hear cases within its original jurisdiction and instead to require that the matters be brought first in a federal or state trial court

ii. Original and exclusive jurisdiction over all controversies between 2 or more states

iii. Original, but concurrent jurisdiction1. Actions or proceedings to which ambassadors, other

public ministers, consuls, or vice consuls of foreign states are parties

2. All controversies between the United States and a State3. All actions of proceedings by a State against citizens of

another State or against aliensb. Review of a final judgment of a decision of the highest court of a statec. Review of a final judgment of a United States Court of Appeals:

Certiorari, certification, or direct review of decisions of federal district courts

3. The Supreme Court’s refusal to review highest state court decisions if there are independent and adequate state law grounds supporting the result

a. Court must decline to hear a case if its reversal of the state court’s federal ruling will not change the outcome of the case because the result is independently supported by the state’s decision on state law grounds

b. What if a decision is based on both federal law and on state law grounds? Where a state court decision rest on two grounds, one of which is federal law and the other is state law, the Supreme Court will not review the case if the state law ground is independent of the federal law ground and is adequate by itself to support the result

c. Where there is an independent question of state law which is adequate the support the state court’s judgment, the United States Supreme Court has no jurisdiction. (Fox Film Corp. v. Muller)

d. What is an adequate state ground of decision?i. Adequate if the Supreme Court’s reversal of the state court’s

ruling will not alter the outcome of the caseii. Unconstitutional state law cannot support the state court’s

holding and is therefore inadequateiii. State law is inadequate when there is no fair and substantial

basis in the record supporting the state court’s state law rulinge. State procedural grounds = adequate?


i. Decision on state procedural grounds are deemed “adequate” and sufficient to prevent the Supreme Court from reviewing substantive constitutional issues

ii. Court is unwilling to allow states to manufacture procedural rules in order to preclude Supreme Court review

f. When are state procedural rules inadequate?i. State procedural rules inadequate if they deny due process

(Brinkerhoff-Faris)ii. Procedural rules that fail to promote a sufficiently important

state interest, but so prevent the vindication of federal rights (Henry v. Mississippi)

1. What is a legitimate state interest?iii. State procedural rules manufactured to preclude review

(NAACP v. Alabama ex rel. Patterson)iv. Rules that are inconsistently followed by state courts

1. Where it is inescapable that the defendant sought to invoke the substance of his federal right, the asserted state-law defect in form must be more evident than it is here. (James v. Kentucky)

2. Ordinarily, violations of “firmly established and regularly followed” state rules will be adequate to foreclose review of a federal claim. However, there are exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question. (Lee v. Kemna)

v. Discretionary rules do not preclude reviewg. What is an independent state ground of decision?

i. A state ground is deemed independent if it is based entirely on state law and is not tied to federal law

ii. Not independent if it incorporates federal law1. If the state court felt compelled by what it understood

to be federal constitutional considerations to construe, its own law in the manner that it did, that is not an independent and adequate state ground. (Delaware v. Prouse)

2. Supreme Court will review the state court’s decision even though there is a state law ground for decision

iii. How to proceed when state court is unclear?1. Supreme Court will presume that there is not a state

law basis for a decision unless the state’s highest court provides a clear statement that its decision was grounded on state law (Michigan v. Long)

2. Long advances federalism because it encourages states to develop independent state law doctrines


3. But the Court in Long places a strong presumption in favor of Supreme Court jurisdiction

Part 6.2: The Anti-Injunction Act1. Overview and background

a. Federal statute adopted in 1793, provided that no “writ of injunction [shall] be granted to stay proceedings in any court of a state”

b. Supreme Court frequently has said that the “statute is designed to prevent conflict between federal and state courts,” but did not treat the prohibition against injunctions as an absolute bar to such relief

c. Aspects of the Acti. Prohibits federal courts from enjoining state proceedings

either directly by enjoining state courts or indirectly enjoining the parties from proceeding with litigation in the state courts

ii. Applies only if there are proceedings actually pending in the state courts; it does not prevent federal courts from issuing injunctions in the absence of ongoing state court litigation

iii. Exceptions contained in the Act are exclusive and the Court may not create additional situations in which injunctions can be issued

d. Relationship to Younger abstentioni. Decision was not based on Anti-Injunction Act, but instead

rested on federalism considerations and on the availability of adequate state court proceedings to resolve the constitutional challenges

ii. In order for a federal court to enjoin ongoing state court litigation the case must fit within both an exception to the Anti-Injunction Act and an exception to Younger doctrine

2. Exception: Injunctions that are expressly authorized by statutea. Some federal statutes explicitly authorize federal court injunctions of

state proceedingsb. Mitchum v. Foster: §1983 constitutes an express authorization of

injunctions of state proceedings, legislative history clearly indicated that it could be given its intended effect only if federal courts could stay state court proceedings

c. Relationship of Younger and Mitchum: there are two independent barriers to federal courts injunctions of state court proceedings: the judicially created abstention doctrine and the Anti-Injunction Act

3. Exception: Injunctions in aid of jurisdictiona. Two circumstances

i. Where a case is removed from state court to federal court andii. Where the federal court first acquires jurisdiction over a case

involving the disposition of real propertyb. Real property exception does not include in personam cases


c. Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court. (Atlantic Coast Line)

4. Exception: Injunctions to promote or effectuate a federal court’s judgmenta. Permits federal courts to enjoin state proceedings if necessary to

ensure the preclusive effect of an earlier federal court decisionb. When a federal court decides an issue, it can prevent that same issue

from being relitigated in state court where principles of preclusion should bind the state court

c. Federal court may not enjoin state court proceedings under the relitigation exception if the earlier federal court ruling was based on federal court procedures and not on the merits of the case

d. Timing for seeking injunctionsi. Once res judicata issue was raised in state court and decided,

then the federal court must accept the state’s determination that there is not preclusion

ii. Strong incentive not to litigate preclusion issue in state court

Part 6.3: Federal Court Abstention Because of Unclear State Law (Pullman and Burford Abstention)

1. Abstention: judicially created rules whereby federal courts may not decide some matters before them even though all jurisdictional and justiciability requirements are met

2. Abstention to avoid federal court constitutional rulings – Pullman abstentiona. Railroad Commission of Texas v. Pullman Company: It is appropriate

for federal district courts to abstain from hearing a case in order to allow state courts to decide substantial constitutional issues that touch upon sensitive areas of state social policy.

b. Three major rationales for Pullman holdingi. Abstention avoids friction between federal and state courts

ii. Reduces the likelihood of erroneous interpretations of state law

iii. Avoids unnecessary constitutional rulingsc. Criticisms of Pullman abstention: substantial costs and enormously

delaying to casesd. Prerequisites for Pullman abstention

i. There must be substantial uncertainty as to the meaning of the state’s law and

ii. There must be a reasonable probability that the state court’s clarification of state law might obviate the need for a federal constitutional ruling

e. Unresolved issues as to when Pullman abstention is appropriatei. Whether federal courts should weight the costs of delaying a

constitutional ruling in deciding whether to abstain


ii. Whether Pullman abstention is discretionary or mandatoryiii. Whether federal courts may abstain in a case where

jurisdictional statutes create exclusive federal jurisdictioniv. Disagreement among lower federal courts as to the legal test to

be used in deciding whether abstention is appropriate3. Abstention because of unclear state law in diversity cases – Thibodaux

abstention: generally not required in diversity cases4. Abstention to defer to complex state administrative procedures – Burford

abstentiona. Abstention because of complex state administrative procedures does

not merely “postpone” federal court jurisdiction; it completely displaces federal court review

b. In Burford, the Court justified abstention because of the presence of unclear questions of state law and the need for centralized administration

c. Burford abstention is appropriate only where there is a danger that federal court review would “disrupt the State’s attempt to ensure uniformity in the treatment of an essentially local problem.” (NOPSI)

i. Mere existence of state administrative procedures, or even a complex state administrative apparatus, does not necessarily warrant abstention

ii. Burford abstention requires that the administrative system have a primary purpose of achieving uniformity with a state and that there be the danger that judicial review would disrupt the proceedings and undermine the desired uniformity

d. Burford abstention is not appropriate in suits for monetary damages, but rather only as to claims for injunctive or declaratory relief

5. Procedures when there is federal court abstention: It is likely for all of the abstention doctrines, a federal court’s decision to abstain is immediately appealable, but its refusal to abstain is not appealable until there is a final judgment

Legal Issues Elaborate state system?

Disruptive effect?

Relief sought Result

Burford Both, but state law “thorny”

Yes Yes Equity Dismiss

NOPSI Federal only Yes No Equity RetainColorado River Both, but state

law “settled”Yes No Equity Retain

Quackenbush State law, “hotly contested”

Yes ? Law Do not dismiss

Part 6.4: Federal Court Abstention to Avoid Interference with Pending State Proceedings (Younger Abstention)


1. Younger v. Harris:a. Supreme Court held that federal courts may not enjoin pending state

criminal proceedingsb. The possible unconstitutionality of a state statute is not grounds for a

federal court to enjoin state court criminal proceedings brought pursuant to that statute.

c. Based on equity and comity grounds2. Relationship to Rooker-Feldman doctrine

a. Rooker-Feldman expressly bars federal district courts from reviewing state court decisions

b. Limited to preventing federal courts from reviewing completed state court proceedings

3. Pre-Younger precedent (Dombrowski) a. Supreme Court held that a federal injunction of state court

proceedings was appropriateb. Because of need for federal court action to enjoin the enforcement of

overbroad statutes that might chill the exercise of First Amendment rights

c. Limited exception to the general rule against injunctions4. Relationship to the Anti-Injunction Act: Anti-Injunction Act prohibits federal

courts from enjoining state court proceedings unless one of three specific exceptions is fulfilled, Younger is a separate and independent barrier to federal court injunctions

5. Younger abstention = constitutional or prudential? Unclear6. Extension of Younger v. Harris

a. Federal courts may not provide a plaintiff with declaratory relief when he or she is subject to a pending state court criminal prosecution

b. Federal courts may issue declaratory relief if state criminal proceedings are threatened, but not pending (Steffel v. Thompson)

c. Court has rejected an expansive interpretation that would apply Younger to all civil litigation

7. Exceptions to Youngera. Bad faith prosecutionsb. Patently unconstitutional lawsc. Unavailability of an adequate state forumd. Waiver (Younger abstention must be raised by the parties, the federal

courts are not to raise it on their own)

No standing(Younger)

“Sweet spot”(Steffel v. Thompson)

Abstention (Younger)

“Inhibited” Threatened Charged Decided*Very specific threat! (another person prosecuted, state said it would prosecute)


Part 6.5: Abstention to Avoid Duplicative Litigation (Colorado River Deference)

1. Problem of duplicative litigation: Because of the Anti-Injunction Act and Younger abstention doctrine, the federal court generally may not enjoin the pending state court action

2. How duplicative litigation might occura. Reactive suitsb. Requirement for complete diversityc. Limits on removal jurisdiction in diversity casesd. Repetitive suits

3. When should federal courts abstain because of duplicative litigation in state courts?

a. No general rule for abstentionb. Real property exception: first court with jurisdiction decidesc. No preclusion of concurrent jurisdiction in other areasd. Federal courts generally need not dismiss or stay an action on account

of the existence of parallel litigation in state court4. Colorado River Deference

a. Under exceptional circumstances, a federal district court may abstain out of deference to state proceedings to avoid duplicative or piecemeal litigation.

b. Moses H. Cone: abstention to avoid duplicative litigation is permissible only in exceptional circumstances, careful balancing of the considerations involved, important factor is whether a federal question is present

5. Unresolved questions concerning abstention to avoid duplicative litigationa. What are sufficiently “exceptional circumstances”?b. What about when there is duplicative state and federal court

litigation, but one of the issues pending in federal court falls within exclusive federal jurisdiction?

6. Procedural aspectsa. Suits for money damages should not be dismissed from federal courtsb. Federal courts have the power to dismiss or remand cases based on

abstention principles only where the relief sought is equitable or otherwise discretionary. (Quackenbush)

c. Parties may not appeal the district court’s refusal to abstaind. BUT district court’s decision to abstain is immediately appealable


Should We Defer? [YES or NO]Factor Colorado River Moses H. ConePiecemeal litigation Yes* NoProceedings went further in state court

Yes No

U.S. is a party No -State v. federal law (Yes) No*Convenience of state forum/inconvenience of federal forum

Yes -

In rem jurisdiction Yes -Adequacy of state forums - No

Part 6.6: Rooker-Feldman Doctrine1. Rooker v. Fidelity Trust Co.: Federal plaintiff sought to have a state court

judgment declared “null and void,” Supreme Court held that federal courts do not have jurisdiction to “entertain a proceeding to reverse or modify” a state court judgment

2. District of Columbia Court of Appeals v. Feldman: Court concluded that a federal district court has “no authority to review the final judgments of a state court in judicial proceedings”

3. Exxon Mobil Corp. v. Saudi Basic Industries Corp.a. The Rooker-Feldman doctrine is confined to cases of the kind from

which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.

b. It does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state court-actions.

4. Rooker-Feldman is limited to circumstances where the loser in state court proceeding was seeking to have the federal court overturn that judgment

Part 7: Federal Courts and State PrisonersPart 7.1: The Scope of Federal Habeas Corpus

1. Federal courts have the authority to review state court criminal convictions pursuant to writs of habeas corpus

2. Protects individuals against arbitrary and wrongful imprisonment3. Only common law writ recognized by the Constitution4. Issues raised by habeas corpus

a. Federalism: relationship between federal and state courtsb. Separation of powers: proper role of Supreme Court in deciding

habeas corpus questionsc. Purposes of the criminal justice system: constitutional rights exist

primarily to protect innocent individuals and ensure that only those


who actually committed a crime will be convicted, but other purposes of constitutional rights exist, so who should habeas be available to

d. Nature of litigation: importance of finality and consequences of revisions in the process of litigation

5. Statutes and rules governing habeas corpusa. Writ of habeas corpus may be granted by “the Supreme Court, any

justice thereof, the district courts and any circuit judge within their respective jurisdictions”

b. Habeas petitions must be in writing, signed, and verified by the person for whom relief is requested or by someone acting in his or her behalf

c. Federal court may grant a habeas petition if it concludes that the person is held in custody in violation of the Constitution, laws, or treaties of the United States

d. Individuals in state government custody may bring a habeas petition only if they have exhausted all available state remedies

e. Federal courts need not entertain a petition for a writ of habeas corpus if a previous petition presented the same issues and the petition does not present any new ground

f. Courts have authority to grant habeas corpus to individuals held in custody “within their respective jurisdictions”

g. Practice for answers, summary dispositions, and discovery (judge may dismiss a petition if it is clear from the face of the petition that there are no possible grounds for relief)

h. Statute of limitations for habeas petitions (AEDPA = 1 year)i. Authorize the federal court in ruling on a habeas petition to “dispose

of the matter as law and justice require”j. Final order of a judge in a habeas proceeding is subject to review by

the court of appeals in the circuit where the federal district court is located

6. Requirements for Habeas Corpusa. Custody

i. Not only limited to releasing a person from incarceration, any restriction of liberty

ii. Collateral consequences of the criminal convictionb. Exhaustion

i. Statutory creation in 1948ii. Prevents federal courts from interfering with ongoing state

criminal proceedingsiii. What state court procedures must be used?

1. Petitioner must pursue all available state court remedies, exhaustion of state proceedings is incomplete so long as there remains an available state court proceeding that might provide the relief sought by the petitioner


2. State prisoners need not use state procedures for collateral review, so long as the issues have been presented and decided by the state courts on direct appeal

iv. What must be presented to the state courts?1. Federal claim must be fairly presented to the state

courts2. Deemed to have been met when the habeas petitioner

supplements the evidence presented in state court, but does not raise a new issue

3. Issues must be presented to state courts even when it is clear that the state law or procedures are unconstitutional

v. What must the petition contain to meet the exhaustion requirement?

1. Federal court must dismiss a habeas corpus petition if it contains both exhausted and unexhausted claims (Rose v. Lundy)

2. Encourages habeas petitioners to litigate all their claims in state court and will facilitate the development of complete records in the state courts

vi. Can the exhaustion requirement be waived? [lower courts are split]

vii. No §1983 suits challenging confinementc. No Successive Petitionsd. Timeliness

7. Cognizable Claims – When may a defendant relitigate on habeas corpus issues that were raised and litigated in state court?

a. Stone v. Powell: When a State has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search or seizure.

b. Withrow v. Williams: Stone v. Powell’s restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner’s claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda v. Arizona.

Part 7.2: Retroactivity and New Rules1. What constitutional issues may be raised on habeas corpus? The bar against

seeking “new” constitutional rules on habeas corpusa. Teague v. Lane: An individual cannot present a claim on habeas corpus

review unless either it is an already established right or it is a right that would have retroactive application

b. Two situations in which rights have retroactive effect


i. New rules place “certain kinds of primacy, private individual conduct beyond the power of the criminal law making to prescribe”

ii. New rule that adopts a procedure that is “implicit in the concept of ordered liberty” (watershed rules of criminal procedure)

2. Three steps of analysis in applying Teaguea. Date on which defendant’s conviction became final is determinedb. Habeas court considers whether a state court considering the

defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution, if NOT, the rule is new

c. If the rule is determined to be new, final step is for court to determine whether the rule nonetheless falls within one of the two narrow exceptions to the Teague doctrine

Part 7.3: AEDPA1. Successive petitions strictly prohibited2. One year statute of limitations on habeas petitions3. When is a state court decision “contrary to” or an “unreasonable application”

of clearly established federal law?a. Terry Williams v. Taylorb. Under the amended statute, the writ may issue only if one of the

following two conditions is satisfied -- the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States."

i. Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.

ii. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Part 7.4: State Procedures and Default1. Doctrines requiring respect for the processes of state courts

a. Habeas petitioner must present his constitutional claims to the state courts before they will be considered by the federal courts


b. Petitioners are required to comply with state procedural rules in presenting their claims in state court

c. Federal habeas courts are required to give special deference to state-court fact-finding

2. When may a defendant present issues on habeas corpus that were not raised in state court? The effect of state procedural defaults

a. Fay v. Noia: An individual convicted in state court may raise on habeas issues that were not presented at trial, unless it can be demonstrated that he or she deliberately chose to bypass the state procedures

b. Wainwright v. Sykes i. “Deliberate bypass” standard of Fay is no longer controlling,

the defendants must show cause and prejudice before presenting a matter on habeas that was not raised at trial

ii. Rule: Federal habeas review is barred for a waived objection to the admission of a confession at trial absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation.

c. Differences between Fay and Wainwrighti. Decisions are based on differing assumptions about the likely

reasons for procedural defaults in state courtsii. Decisions are based on differing assumptions about the

fairness of binding defendants by strategic choices made by their attorneys

iii. Decisions differ as to the importance of ensuring compliance with state procedures

3. What constitutes “cause”?a. Attorney mistakes that do not constitute constitutionally-ineffective

assistance of counsel under Strickland are not “cause” for a procedural default

b. Ineffective assistance of counsel could be “cause” that excuses a procedural default, but counsel’s error in failing to preserve a constitutional claim for review in state court must have been so ineffective as to violate the 6th Amendment

4. What constitutes “prejudice”? a. Showing that the claimed constitutional error worked to the

petitioner’s actual and substantial disadvantage, infecting the entire trial with error of constitutional dimension

b. Showing that the results in the case likely would have been different absent the complained-of violation of the Constitution or federal laws

5. State court fact-finding (see AEDPA p. 1132-1133)

Part 7.5: Innocence1. Actual innocence can excuse a failure to comply with state procedural rules,

and it may excuse a failure to exhaust state remedies


2. Herrera v. Collins: proposition that a habeas petitioner seeking relief by claiming that newly discovered evidence demonstrates actual innocence has a very heavy burden to meet

Documents

ijgls.indiana.eduijgls.indiana.edu/.../2011/08/FedJur_Outline_Scott_Spring2011.docx · Web viewPart 1: The Federal Judicial System. Part 1.1: The Province and Duty of the Federal