Justiciability Doctrines

1. Prohibition Against Advisory Opinions - Federal courts cannot issue advisory

opinions. (48)
a. In order for a case to be justiciable and not an advisory opinion, 2
conditions must be met.
i. There must be an actual dispute between adverse litigants. (49)
ii. There must be a substantial likelihood that a federal court decision
in favor of the claimant will being about some change or have some
effect. (51)
1. Ability of a non-judicial entity to ignore or modify judicial
rulings will render a case non-jusitciable. (52)
2. Standing a determination of whether a specific person is the property party to
bring a matter to the court for adjudication.
a. Requirements for Standing (61)
i. Injury (C) plaintiff must show that that he personally has sustained
or is immediately in danger of sustaining some direct injury as the
result of the challenged official conduct and the injury or threat of
injury must be both real and immediate, not conjectural or
hypothetical. (62)
1. Plaintiff seeking injunctive or declaratory relief must show a
likelihood of future harm. (65)
2. What Injuries are sufficient? (69-71)
a. Injuries to common law, constitutional, and statutory
rights are sufficient for standing.
b. Other sufficient injuries include: desire to use or
observe an animal species, possible diminution of
water allocations, economic harms, facing possible
criminal prosecution, loss of the right to sue in the
forum of ones choice, change in market conditions.
(74)
c. Insufficient injuries: stigmatic injury, marital
happiness.
ii. Causation (C) - Plaintiff must allege that the injury is fairly traceable
to the defendants conduct. (75-76)
iii. Redressability (C) - Plaintiff must allege that a favorable federal
courts decision is likely to redress the injury. (75-76)
iv. Limitation on 3rd party standing (P or C (Lujan, 99)) plaintiff may
assert only his or her own rights and cannot riase the claims of third
parties not before the court.
1. Exceptions the person seeking to advocate the rights of
third parties must meet the constitutional standing
requirements of injury, causation, and redressability in
addition to one of the exceptions.
a. Where the 3rd party is unlikely to sue (85)

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i. A person may assert the rights of a 3rd party not

before the court if there are substantial
obstacles to the 3rd party asserting his own
rights and if there is reason to believe that the
advocate will effectively represent the interests
of the 3rd party.
b. Where there is a close relationship between plaintiff
and 3rd party
i. Usually, 3rd party standing is permitted where
the individual seeking standing is party of the 3 rd
partys constitutionally protective activity.
c. Overbreadth doctrine
i. Permits a person to challenge a statute on the
ground that it violates the 1st amendment rights
of 3rd parties not before the court, even though
the law is constitutional as applied to defendant.
(90)
ii. In order for a statute to be declared
unconstitutional on overbreadth grounds there
must be substantial overbreadth (91).
iii. Cannot be used in challenging regulations of
commercial speech. (91)
v. Prohibition against generalized grievances (P) a plaintiff may not
sue as a citizen concerned with having the government follow the
law or as taxpayers interested in restraining allegedly illegal
government expenditures.
1. Exception is where plaintiff alleges a violation of a specific
constitutional right even though everyone might suffer the
injury as well. (92)
2. Exception for taxpayer standing to challenge government
expenditures that violate the establishment clause (96).
vi. Plaintiff be within the zone of interests protected by the statute (P)
1. Plaintiff must allege that the interest sought to be protected
by the complainant is arguably within the zone of interests to
be protected or regulated by the statute or constitutional
guarantee in question. (100)
2. Used only in statutory cases, usually involving administrative
law issues. (101)
b. Special Standing Problems
i. Standing for organizations
1. An organization has standing to sue on its own behalf if it has
been injured as an entity (106).
a. For example, can challenge conduct impeding its
ability to attract members, raise revenues, or fulfill its
purposes.
2. An association has standing to sue on behalf of its memebers
when (107):
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a. Its members would otherwise have standing to sue in

their own right;
b. The interests it seeks to protect are germane to the
orgnizations purpose; and
c. Neither the claim asserted nor the relief requested
requires the participation in the lawsuit for the
individual members. THIS PRONG IS PRUDENTIAL and
not necessarily required (see 108).
ii. Legislators standing
1. Legislators have standing only if they allege either that 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. (110)
2. Remedial discretion (also called equitable discretion) can be
a problem in these cases. It refers to the courts power to
refuse to hear a case because it deemed it desirable to avoid
review (111).
iii. Standing for suits by government entities
1. Parens patriae standing (114) where a government sues to
protect its citizens.
a. Must allege both an injury to its citizens and that the
matter involved is the type that the state is likely to
address through its sovereign lawmaking process.
b. 2 types of interests where a government has parens
patriae standing (115).
i. One is where the government is suing based on
its interest in the health and well being both
physical and economic - of its residents in
general.
ii. Second, parens patriae standing exists to ensure
that the state and its residents are not excluded
from the benefits that are to flow from
participation in the federal system.
c. May not sue the federal government In this capacity,
but may sue the federal government to protect their
own sovereign or proprietary interests. (115)
3. Ripeness when a party may seek preenforcement review of a statute or
regulation. (118)
a. Criteria for determining ripeness
i. How significant is the harm to denying judicial review (119).
1. 3 situations where the Supreme Court has found there to be
sufficient hardship to justify preenforcement review.
a. When an individual is faced with a choice between
forgoing allegedly lawful behavior and risking likely
prosecution with substantial consequences (120).

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b. Where the enforcement of a statute is certain and the

only impediment to ripeness is simply a delay before
the proceedings commence (123).
c. Hardship from collateral injuries are present (124).
2. Case will be dismissed on ripness grounds if a federal court
perceives the likelihood of harm as too speculative (126-127).
ii. The fitness of the issues and record for judicial review (127).
4. Mootness An actual controversy must exist at all stages of federal court
proceedings. (129).
a. Vacatur (131).
b. Exceptions to Mootness doctrine
i. Where a collateral injury survives after the plaintiffs primary injury
has been resolved. (132).
1. Criminal cases (132) case is not moot when the defendant
has completed the sentence and continues to face adverse
consequences of the criminal conviction.
2. Civil Cases (134)
ii. Wrongs capable of repetition yet evading review
1. 2 Criteria must be met (136)
a. Injury must be of a type likely to happen to the plaintiff
again.
b. It 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. Voluntary Cessation (139).
1. A case is not to be dismissed as moot if the defendant
voluntarily ceases the allegedly improver behavior but is free
to return to it at any time. Only if there is no reasonable
chance that the defendant could resume the offending
behavior is a case deemed moot on the basis of voluntary
cessation. This is a heavy burden that the defendant must
prove in order to assert mootness.
2. Statutory change is enough to render a case moot, only if the
court believes that there is not a likelihood of reenactment
of a substantially similar law if the lawsuit is dismissed (143).
3. 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. (143)
4. Class actions
a. A properly certified class action suit may continue
even if the named plaintiffs claims are rendered moot.
(members of the class continue to have a live
controversy).
b. Plaintiff may continue to appeal the denial of class
certification even after her or her particular claim is
mooted.

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Abstention judicially created rules whereby federal courts may not decide some
matters before them even though all jurisdictional and justiciability requirements
are met.
Policy- (784)
Pullman abstention (785)
1. Federal court abstention is required when state law is uncertain and a state
courts clarification of state law might make a federal courts constitutional
ruling unnecessary. The federal court should not resolve the federal
constitutional question until the matter has been sent to state court for a
determination of the uncertain issue of state law.
a. Justifications for Pullman abstention (786)
b. Criticisms of Pullman abstention (789)
2. Prerequisites for Pullman Abstention (790)
a. There must be substantial uncertainty as to the meaning of the state
law; AND
b. There must be a reasonable possibility that the state courts
clarification of state law might obviate the need for a federal
constitutional ruling.
3. When abstention is appropriate and when it isnt.
a. Abstention is required only if the states law is fairly subject to an
interpretation which will render unnecessary a ruling on the federal
constitutional issue. (791).
b. Abstention is not necessary if a state law is patently unconstitutional,
even if the state court has not yet construed it. (791)
c. Abstention is appropriate when a statute is challenged as being
unconstitutionally vague only if there is a substantial possibility that
the state court could provide a narrowing construction that would save
the statute from being invalidated. (792).
d. Abstention is not appropriate, and state law is not to be deemed
uncertain, merely because the state has not yet considered the laws
constitutionality under the states constitution. (792)
e. Abstention is required when the state has a constitutional provision
unlike any that exists in the Untied States Constitution and the state
courts construction of that clause might make the federal court ruling
unnecessary. (793)
f. Abstention is not proper if the federal and state constitutional
provisions are identical, even if a state court decision on state
constitutional grounds might render a federal court decision
unnecessary. (793)
4. Procedures to be Followed (known as England Reservation)
a. Parties may choose to litigate all of their issues, including federal
constitutional claims, in state court but they relinquish the right to
return to federal court. However, a party can expressly reserve the
right to return to federal court for a determination of the federal law
questions. Trying the state law issues in state court following federal
court abstention will not preclude later litigation of the federal issues in
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federal court (traditional res judicata rule against splitting claims is

inapplicable) (809).
b. Problems with takings cases (810-811).
c. If a state court refuses to decide the state law questions because of
state constitutional provisions preventing advisory opinions, federal
courts should dismiss the case without prejudice. (811)
d. Certification may be an alternative to Pullman abstention (813)
5. Unresolved issues
a. Whether federal courts should weigh the costs of delaying a
constitutional ruling (794)
b. What interests are sufficiently important to justify refusing abstention
or the weight to be given such interests (794).
c. Economic consequences abstention has on the parties (795)
d. Whether abstention is mandatory or discretionary (795) likely
discretionary (796)
e. Whether federal courts may abstain in a case where jurisdictional
statutes create exclusive federal jurisdiction. (796)
f. What constitutes adequate state procedures (796)
g. Actual legal test for Pullman -2nd circuit vs. 5th circuit (796)

Thibodaux Abstention (799)

1. Federal courts should abstain in diversity cases if there is uncertain state
law AND an important state interest that is intimately involved with the
governments soverign prerogative.
a. Soverign prerogative typically means issues involving dirt/water
resources.
2. Certification may be an alternative for Thibodaux abstention.
Burford Abstention (802)
1. Federal courts should abstain if there are unclear questions of state law
AND there is a need to defer to complex state administrative procedures
AND there is a danger that federal court review would disrupt the States
attempt to ensure uniformity in the treatment of an essentially local
problem.(administrative system must have a primary purpose of
achieving uniformity within a state and judicial review would disrupt the
proceedings and undermine the desired uniformity) (805)
2. Burford abstention results in the federal court completely dismissing the
case (different from Pullman or Thibodaux abstention where the Court
sends the case to state court for a clarification of state law issues but
permits the case to return to federal court if necessary) (803)
3. Burford abstention is not appropriate in suits for monetary damages but
only as to claims for injunctive or declaratory relief. (806)
Younger Abstention (819) judicially created bar to federal court interference with
ongoing state proceedings.
1. Bars federal courts from enjoining state criminal proceedings.

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2. Bars federal courts from issuing a declaratory judgment invalidating a

statute that is the basis of a pending state court criminal prosecution
(833).
3. Younger abstention applies only to suits for injunctive or declaratory relief
and not to claims for money damages (835).
4. Younger abstention results in the court completely dismissing the case.
5. In absence of pending state criminal proceedings.
a. Federal courts may not provide declaratory judgments if a state
prosecution is commenced before the federal court procedures are
substantially completed (abstention is appropriate even if the
federal complaint is filed before the state criminal proceedings
begin if no proceedings of substance on the merits have taken
place in federal court). (838)
b. Federal courts may issue preliminary injunctions in the absence of
state proceedings (842). The prevailing view among lower courts is
that permanent injunctions are allowed in the absence of ongoing
state proceedings. (843)
Notes: Rooker-Feldman Doctrine bars federal district courts from reviewing
state court decisions, except in criminal cases via a write of habeus corpus.
Limited to situations where the state court judgment has been rendered
before the federal proceedings have been commenced. (823)
6. When there are pending state civil proceedings
a. Younger abstention applies in all civil proceedings to which the
state is a party. (845)
b. Younger abstention also applies in private civil proceedings (even
between private parties) where an important state interest is
present. (850)
7. When there are pending state administrative proceedings
a. Younger abstention applies when there are state administrative
proceedings in which important state interests are vindicated, so
long as in the course of those proceedings the federal plaintiff
would have a full and fair opportunity to litigate their constitutional
claims. (852).
i. Availability of state judicial review is an adequate opportunity
to raise constitutional issues.
8. Exceptions to Younger abstention (858)
a. Bad Faith Prosecutions
i. Abstention is not appropriate in cases of bad faith
prosecutions, defined as a prosecution has been brought
without expectation of obtaining a valid conviction. (859).
Also requires a showing of an absence of fair state judicial
proceedings. (859)
b. Patently Unconstitutional Law (860)
i. Abstention is not appropriate for injunctions if there was a
statute that was flagrantly and patently violative of express

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constitutional provisions in every clause, sentence, and

paragraph. (860)
c. Unavailability of an adequate state forum
i. State proceedings will be considered inadequate if either
impermissible bias is show or if there is no available state
remedy.
d. Waiver (863)
Colorado River Abstention (865)
1. In general, federal courts should not stay or dismiss proceedings merely
because the same matter is being litigated in state court. Only in rare,
exceptional circumstances must a federal court relinquish jurisdiction
because of simultaneous proceedings in state court.
2. When courts should abstain
a. Real Property exception in actions concerning real property,
whichever court has jurisdiction first is entitled to exclusive jurisdiction
over the matter and even can enjoin other courts from hearing the
case. Where a court has custody of property (in rem or quasi in rem)
the state or federal court having custody of such property has
exclusive jurisdiction to proceed. (869)
b. Only when exceptional circumstances are present
i. 5 Factors that federal court should consider when determining
whether the interests of wise judicial administration and a
comprehensive disposition of the litigiation outweigh the duty to
exercise jurisdiction. (873) Factors are not a checklist and
require a careful balancing of the considerations involved (877).
1. Problems that result when a state and federal court
assume jurisdiction over the same res;
2. The relative inconvenience of the federal forum
3. The need to avoid piecemeal litigation
4. The order in which the state and federal proceedings were
filed
5. Whether a federal question is present (877)
a. The presence of a federal question weighs heavily
against abstention.
c. Suits for declaratory judgments
i. Exceptional circumstances test doesnt apply for suits for
declaratory judgments. (878)
ii. Declaratory judgment Act allows federal courts to have
discretion whether to abstain in suits for declaratory judgments
when there are duplicative state proceedings. Appellate review
of these decisions is by an abuse of discretion standard. (879)

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11th Amendment (11A) & Sovereign Immunity - Sovereign Immunity is based on the
Supreme Courts interpretation of the 11A (422).
1. Suits that are barred.
a. 11A precludes suits against a state government by citizens of another
state or citizens of a foreign country. Also prohibits indian tribes from
suing state governments in federal court without their consent (422).
b. 11A bars suits against a state by its own citizens, also states cannot be
named as defendants in federal administrative agency proceedings
(424).
c. State governments cannot be sued in state court without their consent
(423).
2. Suits that are allowed
a. Does not bar federal court suits by the US government against a state.
b. Does not bar suits against a state by another state. But must be suing
to protect its own interests and not on behalf of individual citizens.
(424).
c. Does not bar Appellate review by the Supreme Court of state court
decisions where the state is a party (425).
d. Does not bar admiralty suits (425).
e. 11A and sovereign immunity do not apply in bankruptcy proceedings
at all (425).
f. Does not bar suits against municipalities or political subdivisions of a
state. (426)
i. But does bar suits against local governments when there is so
much state involvement in the municipalities actions that the
relief runs against the state (427).
g. For state boards, corporations, and other entites when the law is
uncertain, the court looks to several factors (429):
i. Will a judgment against the entity be satisfied with funds in the
state treasury? [Affirmative answer indicate the 11A will apply]
ii. Does the state government exert significant control over the
entitys decisions and actions?
iii. Does the state executive branch or legislature appoint the
entitys policymakers?
iv. Does the state law characterize the entity as a state agency
rather than as a subdivision?
h. County official enforcing state law may be considered a state officer.
(430).
3. Ways around the 11A
a. Suits against state officers
i. For injunctive relief 11A does not preclude suits against state
officers for injunctive relief, even when the remedy will enjoin
the implementation of an official state policy (432) or will cost
the state a great deal of money in the future (438). But 11A bars
retrospective damages to be paid from the state treasury. (439)
ii. For monetary relief
1. 11A does not prevent suits against state officers for
money damages to be paid out of the officers own
Page 9 of 17

pockets (individual capacity), even when the damages are

retrospective compensation for past harms. (437) STATE
INDEMNIFICATION POLICIES are irrelevant and would not
prohibit relief. (437)
2. 11A does prohibit a federal court from awarding
retroactive relief (damages to compensate past injuries)
when those damages will be paid by the state treasury
(438).
3. Attorneys fees to be paid from state treasuries are to be
considered ancillary to the relief already ordered by the
court and are allowed (441).
b. Exceptions
i. 11A prohibits federal courts from hearing pendent state claims
(state claims arising from the same nucleus of operative fact
with federal claims) against state officers (444).
ii. State officers cannot be sued to enforce federal statutes that
contain comprehensive enforcement mechanisms (448).
iii. State officers cannot be sued to quiet title to submerged lands
(450).
c. Waiver
i. A state may waive its 11A immunity and consent to be sued in
federal court. It may be sued in federal court, even for
retroactive relief to be paid out of the state treasury. (452-453).
ii. Express wavier To be effective, an express waiver must
specify the states intention to subject itself to suit in federal
court. A general waiver of sovereign immunity is not sufficient.
iii. Constructive waivers are not allowed. (457)
iv. States choice to remove to federal court was a waiver of
sovereign immunity (458).
d. Suits pursuant to federal laws
i. Congress may authorize suits against state governments only
when it is acting pursuant to 5 of 14A and only if the statute
expressly authorizes suits against state governments. Congress
may not override the 11A when acting under any other
constitutional authority. (460). It must be a clear expression by
Congress but the expression need not be in the statute itself,
legislative history is sufficient. (463).
ii. Congress is further limited to enacting laws that only prevent or
remedy rights recognized by the courts and MAY NOT create new
rights or expand the scope of rights. (467). Any new law must be
narrowly tailored to solving constitutional violations; it must be
proportionate and congruent to the constitutional violation.
there must be a congruence and proportionality between the
injury to be prevented or remedied and the means adopted to
that end. (467-468)
iii. Congress has greater latitude to legislate (and therefore more
authority to permit suits against state governments) under 5 in

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cases involving a type of discrimination or where a fundamental

right was implicated. (475).

Section 1983
1. Creates a cause of action against any person who, acting under color of state
law, abridges rights created by the Constitution and laws of the United
States.
2. Federal court jurisdiction to hear 1983 suits exists under 28 USC 1331.
3. Rooker-Feldman Doctrine: Federal courts do not have jurisdiction pursuant to
1983 to review the judgments and decisions of state courts.
4. 1983 suits cannot be used by prisoners seeking to end or shorten their
confinement. (502) But can be used by prisoners challenging their method of
its implementation (503).
5. Under color of state law
a. On duty - Actions taken by an officer in his or her official capacity
constitute state action, whether or not the conduct is authorized by
state law. (494).
b. Off duty government officials factors used to determine whether the
officer exercised state authority include: where there is a policy
requiring officer to be on-duty at all times, whether the officer
displayed a badge or an id card, identified himself as a police officer, or
carried or used a service revolver or other weapon or device issued by
the police department, and whether the officer purported to place the
individual under arrest. (495).
c. A professional (doctor, lawyer) employed by the government does not
act under color of law ONLY if the individual employee is placed in a
role inherently adverse to the government (such as a public defender).
(496)
d. Private individuals who conspire with government officials may be sued
under 1983. (497).
e. Federal officers may be sued under 1983 when they are engaged in a
conspiracy with state officials to deprive constitutional rights. (498).
6. No Exhaustion requirement for 1983
a. State judicial remedies need not be exhausted (498)
b. State administrative remedies need not be exhausted (498)
c. Exception
i. PLRA creates an exhaustion requirement before prisoners can
bring lawsuits challenging prison conditions (500-501). Must
exhaust even if no administrative remedies existed at the time
the lawsuit was filed. (501).
ii. In order to recover damages for an allegedly unconstitutional
conviction or imprisonment, a plaintiff must first have the
conviction or sentence reversed on appeal or expunged by
executive pardon. (503)
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7. Who is a person for purposes of 1983

a. Municipalities may be sued only for their own unconstitutional or
illegal policies. (508)
i. How is official policy proven?
1. Actions by municipal legislative body constitute official
policies. (511)
2. Actions by municipal agencies or boards that exercise
authority delegated by the municipal legislative body.
3. Actions by those with final authority for making a decision
in the municipality constitute official policy for purposes of
1983.
a. The determination of whether a person has final
authority is a question of state law.
b. 3 Elements identified by the 10th circuit (516):
i. Whether the official is meaningfully
constrained by policies not of that officials
own making.
ii. Whether the officials decisions are final (are
they subject to review?)
iii. Whether the policy decision purportedly
made by the official is within the realm of the
officials grant of authority
4. Demonstrating an official policy by establishing a
government policy of inadequate training or supervision.
(516)
a. One instance is an insufficient basis for inferring
the existence of a policy (517).
b. Requires proof of a deliberate indifference by the
local government. (517)
i. Situations justifying a conclusion of
deliberate indifference.
1. Failure to provide adequate training in
light of foreseeable serious
consequences that could result from
the lack of instruction.
2. Failure to act in response to repeated
complaints of constitutional violations
by its officers. (518).
5. Demonstrate the existence of a custom. (521).
a. Policy develops from the top-down, custom
develops from the bottom-up. (521).
b. Custom exists if policymakers knew about the
widespread practice but failed to stop it. (521)
c. 6th Circuit factors (521)
ii. Pleading standard for municipal policy
1. Notice pleading standard (522)
iii. Municipal liability
1. No qualified immunity for local governments (523)
2. Immune to claims for punitive damages. (524)
b. Individual Officers
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i. Immunities (532NICE explanation of 11A and 1983)

1. Officers can invoke immunity ONLY if the plaintiff is suing
them in their individual capacity (or the government is
paying through an indemnification policy) (532).
2. Absolute Immunity
a. In applying absolute immunity, the focus is on the
function performed and not the title possessed. (for
example, judges have absolute immunity for their
judicial functions but not executive or
administrative). (533).
b. Judges have absolute immunity to suits for
monetary damages or injunctive relief (535) for
their judicial acts. (534). Expanded to cover
individuals conducting certain adjudicative
proceedings (537).
c. Federal legislators and their aides have absolute
immunity to suits for damages and prospective
relief under the Speech and Debate Clause of Art. 1
Sec. 6. State and local legislators have absolute
immunity both to suits for money damages and
equitable remedies. (538). Legislative immunity
applies only to legislative acts (but not for public
statements and press releases).
d. Prosecutors are afforded absolute immunity for
money damages. (539). This absolute immunity
exists for prosecutorial tasks (in court behavior).
Investigative acts by a prosecutor are protected
only by qualified immunity (advice to police
officers, wiretap, fabrication of evidence). (540).
e. Police officers have absolute immunity for the
testimony they give as witnesses, even if they
commit perjury (543). They have only qualified,
good faith immunity to suits against them pursuant
to 1983. (543)
f. President of the United States has absolute
immunity for money damages for acts done while
carrying out the presidency. No immunity for acts
that occurred prior to taking office. (544)
3. Qualified Immunity
a. Whether an officer is protected by qualified
immunity, courts engage in a 2 step analysis. (548)
i. A court should consider whether a
constitutional right has been violated. And if
so;
ii. Court should determine whether it is a
clearly established right (only federal law
right) that a reasonable officer should know .
(549)

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1. Officers can be held liable so long as

they had fair warning that their
conduct was impermissible. (552-553)
b. Private individuals sued under 1983 cannot claim
qualified immunity. (557)
c. State Governments and Territories
i. State governments and territories are not persons under 1983
and thus may not be sued in state court under this statute. (559)
8. What federal laws may be enforced via 1983.
a. 1983 can be used to create a cause of action whenever any federal
law has been violated (562).
i. Exceptions
1. 1983 cannot be used to enforce statutes that explicitly or
implicitly preclude 1983 litigation. (563)
a. Comprehensive enforcement mechanisms within a
statute are evidence of congressional intent to
preclude the remedy of suits under 1983.
b. The presumption is in favor of 1983 to enforce a
federal statute (564) except where the federal
statute is more restrictive than 1983 (565). In that
case, the presumption is against 1983.
c. The existence of administrative remedies alone
does not preclude 1983 litigation absent a more
specific congressional intent.
2. 1983 is available only to enforce federal statutes that
create rights (565).
a. Several factors which indicate that a federal statute
is an enforceable right include (567):
i. The statute creates a binding obligation
ii. If the interest created by the statute is
sufficiently specific as to be judicially
enforceable
iii. If the provision was intended to benefit the
plaintiff.
iv. Provision must be written in mandatory
rather than precatory terms. (568)
9. 1983 for Constitutional Claims (570)

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Federal Common Law

1. Refers to the development of legally binding federal law by the federal courts
in the absence of directly controlling constitutional or statutory provisions.
(363)
2. 2 categories where federal common law has developed (368)
a. To protect federal interests.
i. 2 part inquiry whether to create federal law to safeguard federal
interests.
1. Whether the matter justifies creating federal law.
a. Proprietary interest of the US (in contract, property,
and torts) has been held to justify the creadtion of
federal law. (376).
i. Exception: Custom-made, hand-tailored
specifically negotiated transaction (377).
2. What should its content be?
a. Copy existing state law principles or formulate new
rules?
ii. In suits between private parties
1. Federal common law will be developed in suits between
private parties only if federal law is deemed to preempt
state law (383). Preemption will be found if a state law
imposes obligations that are mutually exclusive with
federal law, or if a state law frustrates the achievement of
a federal objective, or if there is a clear congressional
intent to preempt state law. (383)
iii. In international relations
Page 15 of 17

1. Foreign policy interests justify federal common law (383).

iv. To resolve disputes between states
1. Interstate harmony justifies creation of federal common
law. (385)
b. To effectuate congressional intent (occurs in 2 situations) (388).
i. Congress wants federal courts to develop a body of common law
under a particular statute.(390)
ii. The creation of private rights of action under federal statutes.
1. Will create such causes of action under federal statutes
where it is necessary to effectuate Congresss intent.
(393)
a. There must be affirmative evidence of Congresses
intent to create a private right of action (397).

Habeas Corpus (Table of Contents pg 889)

1. Rules Governing Habeas Corpus
a. Writ of HC may be granted by the SC, any justice thereof, the district
courts, and any circuit judge within their respective jurisdictons (903).
b. Successive petitions are only allowed with the approval of a US Court
of Appeals and the denial of such permission is not reviewable by the
supreme court. (904)
c. HC petitions must be in writing, signed, and verified by the person for
whom relief is requested or someone acting on their behalf. Must
describe the facts concerning the applicant commitment or detention
and the basis for the writ. Should name the custodian as the
respondent.(904)
d. Federal court may grant HC if it concludes that the person is held in
custody in violation of the Constitution, laws, or treaties of the US.
(904).
e. Individuals in state government custody may bring a HC petition only if
they have exhausted all available state remedies.
f. Fed courts need not entertain a petition for a writ of HC if a previous
petition presented the same issues and the petition does not present
any new ground. (905)

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i. Successive HC petitions could not be brought unless the inmate

could show cause for not presenting the issue in the first
petition and prejudice to not having the successive petition
heard. (905)
ii. A court of appeals may approve a successive petition only by
finding either:
1. That the claim relies on a retroactive new rule of
constitutional law; or
2. That the factual predicate for the claim could not have
been discovered earlier and that the facts are sufficient to
establish by clear and convincing evidence that no
reasonable fact finder would have found the applicant
guilty of the underlying offense. (905)
g. Courts have authority to grant HC to individuals held in custody with
their respective jurisdictions. (905)
i. Individuals held in custody by a state containing more than 1
federal judicial district may file a petition in either the district
where the individual is held in custody or in the district that
encompasses the state court that convicted the individual. Both
of these district courts have jurisdiction to hear the HC petition
and can transfer the matter to the other if the interests of justice
would be served.
ii. If a petition is filed in the wrong federal judicial district, the court
without jurisdiction may transfer the petition to the appropriate
court.
h. There is a 1 year statute of limitations on HC petitions and only 6
months in capital cases where a state has established an adequate
system of providing attorneys in post-conviction proceedings. (only AZ
has met the standard) (909)
i. The final order of a judge in a HC proceeding is subject to review on
appeal by the court of appeals. May appeal only if the federal district
court judge or a court of appeals judge issues a certificate of
appealability. (910)
i. Standards for certificate of appealability are on 910.
2. Prereqs of HC
a. Relaxed standard of being in custody (911-914)

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