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Chapter 1: Justiciability

A. Advisory Opinions
1. Advisory Opinions – those that arise out of opinions on the Constitution, from
a piece of legislation or from executive actions, but not out of a ‘case or
controversy’, are constitutionally forbidden. Muskrat v. US
Requirements: (1) there must be an actual dispute b/w adverse litigants and (2)
there must be a substantial likelihood that a federal court ruling in favor of a
claimant will bring about some change or have some effect.
a) Exception – a declaratory judgment can sometimes be asked for
without a case. Federal courts can issue declaratory judgments if there is
an actual dispute b/w adverse litigants and if there is a substantial
likelihood that the favorable federal court decision will bring about some
b) Declaratory Judgment: a judgment of a court which determines the
rights of parties without ordering anything be done or awarding damages.
While this borders on the prohibited "advisory opinion," it is allowed to
nip controversies in the bud.
(1) Examples: a party to a contract may seek the legal interpretation of a
contract to determine the parties' rights, or a corporation may ask a court to
decide whether a new tax is truly applicable to that business before it pays it.
2. Finality Principle → Judicial Decisions Must be Final!
a) When a case is justiciable, the finality principle means that Congress
cannot reverse the final decision by the judicial branch by mandating a
new judicial proceeding with a different result. Plaut v. Spendthrift
B. Standing
1. Standing – determination of whether the plaintiff is the appropriate person to
present the dispute to the courts.
2. Mandated by the Constitution in Article III.
3. If the court is unanimous on the outcome of the legislation being
constitutional, then most likely it will bypass the standing issue, decide the case
on the merits, and uphold the legislation. If the court is split, then it probably will
attack the standing.
4. Constitutional Barriers: derived from the courts interpretation of article III; as
a constitutional restrictions cannot be overridden by statute.
a) INJURY IN FACT: Plaintiff must establish an injury in fact. Injury
gives a personal stake in the case or controversy. There has to be an injury
to a right.
i) Sierra Club – had no standing b/c general interest of club in
protecting environment not enough; at least one member must
have sustained some injury. Π complaint must allege that
he/she has personally suffered an injury.
ii) The right can be created by constitution, statute, common law,
b) CAUSATION: Plaintiff must allege causation – the injury sustained
was caused by the wrongful government conduct of which I’m
c) REDRESSABILITY: The court must be able to provide a remedy.
There must be redressability. If the conduct is eliminated or changed, then
this remedy will redress my injury.
5. Prudential Barriers: although the Constitution permits federal court
adjudication, the Court has decided that in certain instances wise policy
militates against judicial review. (since prudential limitations are not derived
from the Constitution, Congress may instruct the federal courts to disregard
such a restriction.)
a) Third-Party Standing – generally, one cannot assert the constitutional
rights of another.
(1) Exceptions – what do you have to show before alleging rights
of third-parties.
(a) There must be substantial obstacles in the path of those
who are being violated.
(b) There has to be a reason that the person filing suit will
adequately represent the rights of the third party.
(i) Many discriminatory cases have issues where third-party
standing is allowed.
(c) Close-relationship between the plaintiff and the party
whose rights are being violated.
b) Generalized Grievances – generally, there is a prohibition against
generalized grievances which prevents individuals from suing if their only
injury is as a citizen or a TXP concerned w/ having the government follow
the law.
(1) this is an injury that you may sustain individually, but so will
everyone else. It is something that affects all citizens equally.
Even though you may suffer a concrete injury, can’t bring one that
everyone is suffering also. However, just because a large amount
of people are injured, it does not mean it will be a generalized
grievance. But, the Court wants to avoid instances where people
are bringing generalized injuries.
(2) Taxpayer Cases
(a) When dealing with taxpayer suits, frequently a concrete
injury cannot be shown although the conduct may very well
be running rough shot over the Constitution.
(b) Congress could provide the right to the people or
taxpayer to sue.
(c) Taxpayer Cases under the Establishment Clause
(3) Paleaz Example – government gives police money to outfit
cars with listening devices that can hear any conversation in your
home while just driving by. Can you challenge it as a tax payer?
No, because you would have to allege that the 4th provides a
constitutional limit on the tax and spending clause. You challenge
it under the 4th if you were arrested on something.
c) Zone of Interest – plaintiff seeking standing must be within the zone of
interests protected by the statute in question.
(1) the Law being violated is of the nature which brings the Plaintiff in the zone
of which the law is designed to protect.
- look at intent and effect of the law
- of a Π is suing pursuant to a statutory provision, in order to
have standing the Π must be part of the group intended to benefit
from the law.
6. Associations: or organizations can sue based on injuries to itself or based on
injuries to its members. ONLY has standing if it or its members would be
affected in a tangible way by the challenged action.
a) Sierra Club – no standing b/c club failed to allege harm to itself or that
any of its members had used the park in question.
b) Organization has standing to sue on its own behalf if it has been
injured as an entity.
c) organization may try to sue on behalf of its members.
- NAACP v AL – SC allowed standing to NAACP, in a
representational capacity for its members, to challenge a state law
requiring it to disclose its membership lists. NAACP asserted its own
interests as an organization as well as associational and speech rights
of its members.
7. Legislative Standing: 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. Raines v Byrd

C. Ripeness
1. Ripeness involves whether a dispute has progressed far enough to make
judicial review appropriate. e.g., A married couple’s challenge of an abortion-
restricting statute is not ripe for adjudication unless the woman is pregnant. i.,e.,
Someone is trying to enforce a law or redress an injury before an injury even
2. Two Requirements:
a) Constitutional Barrier → Plaintiff must establish that the injury is
imminent and not merely speculative – almost certain to occur with some
degree of hardship.
b) Prudential Barrier → There must be a determination, based on the
specific facts of the case, by the judiciary that the case at this early stage is
fit for judicial resolution.
3. Distinguishing Ripeness from Standing → Nichol, Ripeness and the
a) Three questions to ask:
(1) Whether the type of injury alleged by the plaintiff is justiciable;
(2) Whether the plaintiff personally has suffered or will suffer the
injury; and,
(3) Whether the plaintiff is sufficiently close to suffering the injury
to make judicial intervention appropriate
b) Standing requires a litigant show they personally suffered some
threatened or actual injury. The ripeness requirements focus on the
substantiality of threatened or actually pending future injuries.
c) An overlap occurs in the measurement of the cognizability of
contingent or threatened harms.
D. Mootness
1. Mootness concerns disputes that are too ripe. Here the dispute is stale, where
judicial intervention would no longer be useful.
2. The Court considers this a constitutional barrier, unlike standing which
encompasses both constitutional and prudential.
3. Two Problems Regarding Mootness
a) First, a defendant may in bad faith seek to manipulate the doctrine,
discontinuing a challenged practice when an action is filed but reinstating
it after the litigation is dismissed.
b) Second, some problems are of such limited duration that judicial
resolution cannot be obtained quickly enough.
4. Collateral Remedy Doctrine: Spencer v. Kemna (1998) – As long as any
portion of the remedy is still available, the case cannot become moot.
5. Capable of Repetition, yet Evading Review Doctrine
a) Roe v. Wade (1973) –Pregnancy provides a classic justification for a
conclusion of nonmootness. It truly could be 'capable of repetition, yet
evading review.' We, therefore, agree with the District Court that Jane
Roe had standing to undertake this litigation, that she presented a
justiciable controversy, and that the termination of her 1970 pregnancy has
not rendered her case moot.”
b) Requirements for this doctrine:
(1) Injury is short term
(2) The plaintiff is likely to be subjected to the same harm again
(a) Election cases → while the case is pending, the election
ends. The Court has been reluctant to hold the case is not
moot because it is too speculative that the person may
attempt to run again.
6. NOTE: Court’s are much more loose with mootness. More evident with class
action suits.
E. Political Questions
1. The political question doctrine cases the courts occasionally to refuse to
adjudicate disputes because the Constitution commits their resolution to other
branches of government or because the Court determines that the other branches
are better suited to resolve them.
2. The Political Question Doctrine does not spin off of Article III’s requirement
of case or controversy. Its basis is found in separation of powers. The other three
(standing, ripeness, and mootness) have a small component involving the
separation of powers, but their primary basis is in Article III. This is a difficult
area to understand, difficult for the courts, and for lawyers. There is no place in
the constitution that even eludes to judicial review and who has the power to
review such a thing.
3. Nixon v. United States (1993) –The Supreme Court held that the Senate had
sole discretion to choose impeachment procedures and, thus, controversy was
non-justiciable political question.
4. Misnamed doctrine and has failed to articulate parameters to define the
doctrine. What is a political question?
a) Baker v. Carter (1962) –
(1) Baker factors for considering political questions: Prominent on
the surface of any case held to involve a political question is found
(a) a textually demonstrable constitutional commitment of
the issue to a coordinate political department;
(b) or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for
nonjudicial discretion;
(c) or the impossibility of a court's undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government;
(d) or an unusual need for unquestioning adherence to a
political decision already made;
(e) or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
5. Prof → the best way to determine is to look to those areas where the doctrine
has applied – where have they held that this is applied?
6. Non-Justiciable Areas
a) Republican form of government clause (Art. IV, Sect. 4) – never
waivered on this, although O’Connor has reasoned that not all questions
under this are non-justiciable – this also includes…
(1) Luther v. Borden (1849) – the case involved a dispute between
supporters of conflicting governments in the state of Rhode Island.
They had failed to adopt a new state constitution and was
continuing to operate under the original charter. The Court refused
to hear the case. The Guaranty Clause (Art IV, Sect.4) allows only
Congress to determine what the government of the state is.
b) Electoral Process / Mal-apportionment Clauses – Congress’ ability to
regulate its internal process – Adam Clayton Powell
(1) Gerry mandering issues have “…?...” always been held
(2) Baker v. Carr – above
(3) Courts have generally stayed out of primaries, but they did not
stay out of Bush v. Gore.
c) Foreign Affairs / Relationships with Foreign Nations –
(1) Challenges of pres. war powers have been held non-justiciable.
Generally stay out of foreign policy – won’t determine whether
wars are justified – Vietnam and First Gulf War. Can we do this
without Congressional declaration of war? This iraq war; Pres got
the permission of congress.
(2) Foreign affairs are usually non-justiciable – issues are complex
and judiciary lacks expertise – advocating responsibility to the
other branches creates a lack of responsibility on those branches.
Do we choose judges based on their foreign affairs policy? No, the
president and / or State Department is better suited to deal with and
handle these issues. The Court’s function is to interpret the
(3) Goldwater v. Carter
d) Congress’ ability to regulate internal affairs –
(1) Powell v. McCormick
(2) US v. Monrose
e) Ratification of Constitutional Amendments
(1) Scholars say this should be out of bounds of the judiciary.
(a) Underlying purpose of judicial review is to act as a
check on the other branches. But, what check on the
courts? Federal judges are appointed for life and can not be
removed except for “bad behavior.” How do we check?
One way to check them is to amend the Constitution.
(b) Can also check through the impeachment powers.
(c) In both areas, the court has found these to be non-
justiciable. However, some disagree.
(2) Pullman v. Miller – left to Congress when the time has expired
for ratification. Kansas refused to ratify. 12 years later the
ratification is out there. Finally, this legislature wanted the
ratification. P’s challenged second legislatures change in decision
to ratify. Article V grants power of amendment to congress alone
– not subject to judicial control, guidance, or interference of any
kind. Deciding the case on the merits, the Court has held that
Congress has the power to set time limits on ratification of
(3) Equal Rights Amendment – Iowa ratified and then rescinded.
Challenged change and Congress’ expanded time for ratification
by only a majority vote – extended for 3 more years over the initial
7. Court found that the case was moot by the time it hit the USSC
because the 3 years expired. The lower court found the case
justiciable; but that it was unconstitutional, but the SC threw it out
because of being non-justiciable; moot.
(4) Balanced budget – if 2/3 of states call for convention, then
Congress must hold. Amendment can start in senate and then go to
states – or – States can start and bring to congress. Balanced
budget has been on the slate for 32 years, but only 34 states have
ratified. Need 2 more states. Can the court force resolution of the
time frame for ratification?
f) Impeachment process
(1) Only way to control the judges
(2) Nixon v. US – judge charged and convicted of bribery and
brought up for impeachment. See above. Non-justiciable political
question. Up to congress to determine how to try Nixon.
g) Supervision of Political Bodies
(1) Kent State, Ohio National Guard supervision
7. Justiciable Areas
a) Racial discrimination issues have always been justiciable.
8. Constitutional Amendments → what role does the court play? It does
happen. 2/3’s in each house and then has to be ratified by ¾ of states. If 2/3 of
states call for convention, then can also amend. Suppose there is a proposal and
Congress sets a time limit – court held can’t do this. Can congress extend the
time for ratification? Court has been circumspect in this area and not sure what
the Court will do.

CHAPTER 2: Congressional Control of Fed Jurisdiction

- The Constitution gives Congress some power over the appellate jurisdiction of
the Supreme Court. Article III, Section 2, allows this “with such exceptions, and under
such regulations as the Congress shall make.
- Judiciary Act of 1789 – provided trial court jurisdiction in diversity cases
only. Congress did not grant the lower federal courts jurisdiction over federal question
cases until 1875.
- Article III does say that judicial Power shall be vested, not that it may be
vested. Some argue that any jurisdiction-stripping statute would violate another
constitutional provision by excluding classes of litigants or cases entitled to
constitutional protection.

Jurisdiction Restrictions Overview

- Supreme Court
o the goal of jurisdictional restrictions is the de facto reversal, by means far less
burdensome than those required of a constitutional amendment, of several highly
controversial SC decisions dealing with matters such as abortion, school prayer,
and busing.
- Lower Courts
o Art III Congress has discretion as to whether to create any lower federal courts.
o Congress never has vested the full jurisdiction of art. III in the lower federal

*federal courts undoubtedly would have jurisdiction to decide the constitutionality of statutes
denying federal courts the authority to hear particular types of cases. Marbury v. Madison

Congressional Restriction of the Jurisdiction of the United States Supreme Court

- issue is whether Congress can prevent the Supreme Court from hearing cases on
particular topics?
- Uncertain whether jurisdiction stripping is constitutional b/c Congress has rarely
attempted, and never in a manner that has been interpreted as precluding all SC review.
- Absence of any court, state or federal would raise due process issue. If SC review was
limited, there would remain some court to hear the claim.
- Congress may remove original jurisdiction from SC which it granted to SC
 Ex Parte McCardle – Congress granted appellate review over cases under
the Military Reconstruction Act; SC reversed conviction of McCardle.
Congress then revoked SC appellate jurisdiction over the cases under the
Act. Ct held that Congress may remove jurisdiction which it has granted.
SC’s authority stems from the constitutional it is conferred w/ such
exceptions and under such regulations as Congress shall make. Act was
an unmistakeable exception to the Court’s appellate jurisdiction.
o Opponents of jurisdiction stripping claim that McCardle establishes only the
limited proposition that if there are two statutory grounds for SC jurisdiction,
Congress may repeal one of them.
o Felker v. Turpin – SC unanimously upheld the constitutionality of a jurisdictional
restriction which prevented the SC from having appellate review of a habeas
corpus proceeding, placing this w/ court of appeals. Ct found that it did not repeal
the courts authority to entertain original habeas corpus petitions.
o US v. Klein – SC held that Congress cannot restrict Supreme Court appellate
review in an effort to direct particular substantive results.
 Supporters of jurisdiction stripping argue that despite the broad language
in Klein, that decision does not support the general proposition that
Congress may not restrict jurisdiction in order to direct substantive
outcomes. Rather, it stands for the much more limited principle that
Congress cannot limit the SC’s jurisdiction in a manner that violates other
constitutional provisions.
o Plaut v. Spendthrift Farm, Inc. – SC found congressional statute unconstitutional
which reopened cases which were time-barred b/c of a violation of separation of
powers. Plaut shows the impact of the Case-or-Controversy Clause as protecting
an area from incursion by the political branches, demonstrating that the Clause
defines a boundary between mutually exclusive areas of federal power.
o Critics also argue that Congress cannot use its power to control jurisdiction in a
way that violates other constitutional provisions.
o Separation of powers arguments abound as well

Congressional Restriction of Lower Federal Court Jurisdiction

- argument 1 – federal courts must have the full judicial power under article III. Has never
been seriously applied.
- Argument 2 – congress has authority to determine the jurisdiction of federal courts
because Congress has discretion as to whether to establish such tribunals.
o Sheldon v. Sill – 1850, seminal case; Stands as strong precedent for the
proposition that b/c Congress has discretion to create lower federal courts,
Congress also possesses authority to determine their jurisdiction.
 Judiciary Act provided that federal courts could not hear cases where
diversity was created by assignment. SC upheld the Act, holding that
“congress may w/hold from any court of its creation jurisdiction of any of
the enumerated controversies. Courts created by statute can have no
jurisdiction but such as the statute confers.
o Lauf v. EG Shinner – SC held that there can be no question of the power of
Congress thus to define and limit the jurisdiction of the inferior courts of the US.
o Yackus – SC held that it had no jurisdiction to hear defense of Δ b/c he had not
raised the constitutional issue in the prescribed administrative and judicial
procedures. Ct held that Congress had the power to restrict the jurisdiction of the
federal courts and to specify the administrative court as the only forum to hear the
challenges specified.

Congressional Power to Create Legislative Courts

- Article III : federal judges shall have life tenure, assuming good behavior, and salaries
that cannot be decreased during their terms in office.
o “the judicial power of the United States shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time ordain and
o “the judges, both of the Supreme and inferior courts shall hold their officers
during good behavior and shall, at stated times, receive for the Services, a
Compensation, which shall not be diminished during their continuation in office.”
- Legislative or Article I Courts: court which judges do not have article III protections,
including judicial tribunals and administrative agencies that decide art III matters but
whose decision makers lack life tenure and salary protections.
o Areas were Legislative Courts are Permissible:
 US Possessions and Territories
 Military Tribunals
 Civil Disputes b/w US and private citizens
 Adjunct Courts - criminal matters or for disputes b/w private citizens
where the legislative court serves as an adjunct to an art III court that can
review the legislative court’s decisions.
o Northern Pipeline – SC declared unconstitutional the bankruptcy courts created
by the Bankruptcy Act of 1978. plurality opinions; bankruptcy cts did not fit into
military, territorial and public rights courts, also could not be adjunct courts. Ct
didn’t specify what an adjunct court would be. No life tenured judges w/ salary
protection. Justices objected to the ability of the courts to hear state law claims.
o Thomas v. Union Carbide – ct held that NP stood for the idea that Congress may
not vest in a non-Article III court the power to adjudicate, render final judgment,
and issue binding orders in a traditional contract action arising under state law,
w/out consent of the litigants and subject only to ordinary appellate review.”
 *Ct said that legislative courts were permissible for private disputes that
were closely related to govt regulatory activities. (rejects NP implication
that there were only 4 areas that could be controlled by legislative courts)
 “Congress, acting for a valid legislative purpose pursuant to its
constitutional powers under article I, may create a seemingly ‘private’
right that is so closely integrated into a public regulatory scheme as to be a
matter appropriate for agency resolution.”
o Balancing Test: Commodity Futures Trading v. Schor – balancing test for
appraising the constitutionality of legislative courts.
 Benefits of an administrative alternative to federal court litigation (in
terms of efficiency and expertise) v. the purposes underlying article III.
• Two goals of article III; (1) ensuring fairness to litigants by
providing an independent judiciary and (2) maintaining the
structural role of the judiciary in the scheme of separation of
- Summary: the courts overall approach will be to balance the benefits of using a
legislative court against the adverse effects in terms of fairness and separation of powers.
More specifically, legislative courts will be allowed for ‘inherently judicial matters’ as an
adjunct to article III courts, in private law disputes in which there is a close relationship
to a public regulatory program, and generally where the benefits in terms of efficiency
and expertise outweigh concerns about fairness and separation of powers.


A. Introduction
1. Constitution grants exclusive jurisdiction in some cases to the states or the
federal government; however, often jurisdiction is concurrent.
2. If broad jurisdiction is granted to the federal courts, then it substantially
diminished the number of cases in the state courts, thus diminishing the state court
role. Also, broad jurisdiction to the federal courts in hybrid cases, those bringing
questions of both federal and state law, would now bring a greater influence of
federal authority on state law.
3. Article III, § 2 grants the scope of jurisdiction for the federal courts.
However, it is not self-executing. Congress determines what jurisdiction the
inferior federal courts can have.
4. Federal question jurisdiction was not granted to the inferior lower courts until
a) 28 USCA §1331. Federal question. The district courts shall have
original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States.
5. Two distinct concepts when dealing with federal question jurisdiction:
a) The placement of the federal issue – whether it comes up in the
complaint, the answer, or elsewhere; and,
b) the substantiality of the federal issue.

Meaning of ‘Arising Under’ federal law for purposes of the federal question jurisdiction
- A case arises under federal law if it is apparent from the face of the plaintiff’s well-
pleaded complaint either that the plaintiff’s cause of action was created by federal law;
or, if the plaintiff’s cause of action is based on state law, a federal law that creates a cause
of action is an essential component of the plaintiff’s claim.
- Well-Pleaded Complaint Rule – it must be clear from the Πs complaint that there is a
federal question.
o Defense Not Enough - Federal court jurisdiction cannot be based on a federal law
defense or on the Πs anticipation of a federal law defense.
o Applied to Removal – if a Π chooses not to present a federal claim, even though
one is potentially available, the defendant may not remove the case from state to
federal court. However, a Π may not defeat removal by omitting to plead
necessary federal questions in a complaint.
o Declaratory Judgment Cases – Π may not circumvent well-pleaded complaint rule
by seeking a declaratory judgment that the federal law is unconstitutional or
inapplicable if the complaint in a lawsuit for redress would not state a federal
- Cause of Action based on federal law – a case arises under federal law if it is based on a
cause of action created by federal law. There is a federal question if federal law creates
the cause of action.
- Federal Questions in suits based on state causes of action – even if the Π 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 Πs complaint that a federal law that creates a cause of action is an essential
component of the Πs state law claim.
o Federal statute must itself create a cause of action – ct in Merrell Dow held that it
is not enough for a federal law to be an essential component of a state law cause
of action; federal question jurisdiction exists only if the federal law itself creates a
cause of action, albeit one not relied on by the plaintiff.

Diversity Jurisdiction
- Requirement of Complete Diversity – no plaintiff can be a citizen of the same state as any
of the defendants at the time the action is filed (prudential concept, not constitutional)
o Affect on Removal – if there isn’t complete diversity, cannot remove a diversity
case to federal court.
o Minimal Diversity – one Π and one Δ are of different states; is the constitutional
requirement; all that is required under Federal Interpleader Statute
- Each party must be a citizen of a state or foreign country –
o US Citizen But Not a State Citizen - a person may not sue or be sued in a
diversity case if he or she is citizen of the US, but not a citizen of a particular
- Domicile determines individual’s citizenship –
o Individual – deemed to be a citizen of the state where he or she is ‘domiciled’, the
place where he has his true, fixed, and permanent home and principal
establishment, and to which he has the intention of returning whenever he is
absent therefrom. **only have one domicile state
o Corporation – ordinary place of business and state of incorporation.
- Amount in Controversy – 75k (congressional requirement; not constitutional, can be
o Aggregation of Claims -
 Single Π can consolidate all claims against same Δ to meet the
jurisdictional amount even if they do not arise from the same facts
 Multiple parties cannot aggregate claims; single party cannot aggregate
claims against multiple Δs

Removal Jurisdiction
- Removal only if case could have been filed in federal court – generally, Δs may remove a
case from state to federal court if the matter properly could have been brought by the
plaintiff to federal court. (complaint must present either a federal question or diversity of
citizenship must exist in order to remove)
- Only Defendant can remove and only from state to federal court –
- Limits on Removal in Diversity Cases –
o No Removal if Δs Residents – removal of a diversity case from state to federal
court is not permitted if any of the defendants are residents of the state where the
action was filed. (residents voluntarily dismissed from suit by Π, Δ can remove;
if residents dismissed by court, Δ cannot remove)
o Specific Statutes Prohibiting Removal –

Transfer of Venue
3 Jurisdictional Requirements in Federal District Court
1. Subject Matter Jurisdiction (court can bring up at any time sua sponte)
- Diversity Jurisdiction
- Federal Question Jurisdiction
2. Personal Jurisdiction (for the benefit over the party whom you are seeking jurisdiction over;
CAN be waived)
3. Venue – (federal court 28 USC 1391; in a diversity case, proper where any Δ resides
(corporation is held to reside in any district in which it does business))
- Transfer of Venue: can transfer to another court for the interest of justice or the
convenience of the parties.
o Proper Venue Required: Can only transfer to another proper federal court (must
be able to get subject matter jurisdiction; personal jurisdiction and venue)

The Choice of Law in Diversity Cases

- No Conflicts: if there is no conflict between state and federal law, both are applied
- Conflict of Laws: if state and federal law are inconsistent, the following questions must
be asked
o Is there a valid federal statute or Federal Rule of Procedure on point? If so, the
federal law is to be applied, even if there is conflicting state law.
o If there is not a valid federal statute or Rule of Procedure, the second question is
whether the application of the state law in question is likely to determine the
outcome of the lawsuit?
 If the state law is NOT outcome determinative, then the state law is used.
 If the state law IS outcome determinative, and there is no countervailing
federal interest, then state law controls. Otherwise, federal law applies.
 In applying the test, federal courts are to be guided by the goals of the Erie
doctrine, which are to prevent forum shopping and the inequitable
administration of justice.
- Determination of State Law – state’s highest court is the authoritative interpreter of
state’s law.
o State Decision on Point - If the state’s highest court has a decision on point,
federal courts must apply it b/c Erie holds that federal courts are to apply state
common law principles.
o No State Decisions on Point – the federal court must try to predict how the state’s
highest court is likely to decide the case. A federal court in a diversity case is to
apply the law the state’s highest court would likely apply. The federal court
should consider lower state court decisions, but is not bound to apply and follow
them if the federal court believes that they would not be affirmed by that state’s
higherst court.
- State Conflicts of Law Policy – Klaxon held that federal courts in diversity actions should
determine the conflict of law principles likely to be applied by the forum state’s highest
court and follow the same law that would be applied there.
o Transfer of Venue Apply Conflicts of Transferor State –when a plaintiff or
defendant successfully moves for a change of venue under 1404a, the transferee
court must apply the choice of law rule that would have been followed in the
transferor court. Van Dusen v. Barrack; Ferens v. John Deere;
Federal Common Law
Bradeis in Erie – “there is no general federal common law”

There is a substantial body of federal common law concerning topics such as the rights and
duties of the federal government, international law, conflicts among the states, and admiralty.

Two categories where federal common law has developed

1. Necessary to Protect Federal Interests: federal common law has developed where the SC
has decided that federal rules are necessary to protect uniquely federal interests.
a. To protect federal proprietary interests in cases involving the US govt
i. Clearfield Trust – widely cited for the propostion that federal courts may
develop common law to protect the proprietary interests of the US. This
proposition has been extended beyond matters involving commercial
b. To safeguard federal interests in litigation b/w private parties
i. Ct has made it clear that federal common law will be developed in suits
b/w private parties only if applying state law would frustrate federal
ii. In cases involving private parties, federal common law will be developed
only if federal law is deemed to preempt state law. Preemption
traditionally is found if a state law imposes obligations that are mutually
exclusive w/ federal law, or if a state law frustrates the achievement of a
federal objective, or if there is a clear congressional intent to preempt a
state law.
c. To uphold federal interests in international law
i. Federal common law is created b/c of the uniquely federal interest in
foreign affairs and b/c the application of state law would frustrate the
uniformity needed in the US’ relations w/ other countries.
ii. b/c of the application of the political question doctrine in many cases
related to foreign policy, the development of federal common law in this
area is likely to be minimal.
d. Resolve conflicts among the states
2. federal common law rules have developed where the Court has acted to effectuate
congressional intent.

2 part inquiry to determine whether to create federal law to safeguard federal interests
1) the court considers whether the matter justifies creating federal law
- no clear criteria exist to guide this determination. The court often looks to whether the
underlying purpose of a constitutional or statutory provision warrants the development of
federal common law.
- Clearfield Trust – ct held that the rights and duties of the US on commercial paper which
it issues are governed by federal rather than local law…the duties imposed upon the US
and the rights acquired by it as a result of the issuance find their roots in the same federal
sources. In absence of an applicable act of congress it is for the federal courts to fashion
the governing rule of law according to their own standards.
2) if federal law is to be developed, the Court decides its content; specifically, the Court
determines whether the copy existing state law principles or to formulate new rules.
- BALANCING TEST – in deciding whether to incorporate state law or to fashion new
federal law, the Court balances the need for federal uniformity and for special rules to
protect federal interests against the disruption that will come from creating new legal

Development of Federal Common Law to Effectuate Congressional Intent

Occurs in 2 situations
1) where Congress wants federal courts to develop a body of common law rules under a
particular statute.
a. Congress might provide a broad statutory mandate with the expectation that the
federal judiciary will develop specific standards through a series of decisions.
i. ERISA claims
ii. Sherman Antitrust Act
b. GENERAL RULE: the federal judiciary will formulate a body of common law
rules only pursuant to clear congressional intent for such action.
2) More controversial area concerns the creation of private rights of action under federal
a. Generally, the SC has been reluctant to create new causes of action, even in areas
where it has been willing to develop common law rules.
b. Absence of federal legislation in some instances the SC has created causes of
i. *existence of private rights of action against federal officers for violations
of constitutional rights. Ct has inferred a cause of action for money
damages against federal officers directly from constitutional provisions,
such as the 4th, 5th, and 8th Amds.
c. Statutes w/out private rights of action – ct has created a cause of action under
statutes where it believes that a private right of action would fulfill congressional
i. 1st Approach – Borak – allows federal courts to create a private right of
action, in the absence of any express congressional authorization, if
damage suits would help accomplish the legislative purpose for a statute.
ii. 2nd – Cort v. Ash – did not permit causes of action to be established simply
b/c they advanced the legislative purpose behind a statute; but was a
structured, 4-part inquiry into Congressional intent.
1. is the Π one of the class for whose benefit the statute was enacted
2. is there any indication of legislative intent, explicit or implicit,
either to create such a remedy or to deny one
3. is it consistent with the underlying purposes of the legislative
scheme to imply such a remedy for the Π
4. is the cause of action one traditionally relegated to state law, in an
area of basic concern of the States so that it would be inappropriate
to infer a cause of action based solely on federal law?
iii. 3rd Approach – adopted from Powell dissent in Cannon v. Univ of
Chicago; Touche Ross ct held that the 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. under current law it appears that the Ct will establish private rights
of action only if affirmative evidence shows that Congress
intended to allow such suits.
2. ct will continue existing causes of action; just not create new ones
w/out clear congressional intent.

Admiralty and Maritime Cases

- Admiralty and Maritime Jurisdiction does not “arise under” for 28 USC § 1331 purposes.
- Admiralty and maritime substantive law and jurisdiction is generally a matter of common
law, rather statutory.
o No constitutional right to jury trial in admiralty cases; can get jury if brought in
federal court as diversity case or in state court.
o No matter where suit brought, it is governed by substantive federal admiralty
o Removal: admiralty, maritime case can only be removed from state court to
federal court if there is diversity jurisdiction (no jurisdiction under §1331)
- 28 USC § 1333 provides for original jurisdiction over any “civil case of admiralty or
maritime jurisdiction, saving to all suitors in all cases other remedies to which they are
otherwise entitled.”
o IN PERSONAM – action brought against the owner of the entity that owns the
 Jurisdiction: An in personam action may be brought in federal court under
its admiralty jurisdiction, as a non-maritime case under the federal court’s
diversity jurisdiction, or within a state court.
o IN REM – action brought against the vessel itself; proceedings are exclusively
within the jurisdiction of the admiralty courts
 E.g., an action to enforce a lien;
 E.g., where a ship owner brings an action to limit liability.
• Like the libel in rem, the limitation proceeding affords an
opportunity for consolidation of numerous claims – all those that
arose during the voyage in question – and the judgment discharges
them all.
• A “limiting liability” action usually occurs when a ship or its crew
causes a tort such as an oil spill.
• In order to encourage trade and commerce, the common law
permitted a ship owner to limit his liability to the value of the ship.
• Thus, when a non-fortuitous even occurred, a shipowner will file
an action to limit liability thereby establishing the “cap” of the
shipowner’s liability.
• Only a district court judge can here the merits of a limiting claim.
o Such an action must be brought within 6 months of the
activity which may be subject to the shipowner to liability.
o This may be asserted as an affirmative defense.
o State law cannot determine the value of the ship; instead, it
is for the fed’l courts.
 Bringing an in rem action places a maritime lien on the vessel. No
recording is needed and is perfected automatically.
 The only way to execute on a maritime lien is to bring an in rem
• If successful, the court will sell the vessel;
• Pay the claimant; and,
• Award the vessel to the purchaser free and clear of all liens.
 If the vessel is sold outside of a judicial sale, none of the liens are
extinguished. Rather, they remain with the vessel.
 If federal admiralty jurisdiction is invoked, there are no requirements of
diversity of citizenship or minimum amount of controversy.
o Thus, if the plaintiff is seeking one of the remedies it is otherwise entitled to, it
may only be brought within federal court if it “arises under” or if diversity exists.
- Navigable Waters of the US: all waters that in there present state can be used or are used
to transport people or cargo w/in the US or b/w the US and foreign countries.
o Interstate Waterways: w/in admiralty jurisdiction so long as the waters form a
link in an interstate chain.
o Distinguish Power of Army Corps of Engineers: have power to remove or place
obstructions in waterways, regulate vessels in water that has been navigable
historically. (all waters that at one time created an interstate chain)
o In State Operation of Marine Business: w/in admiralty jurisdiction; key is the
body of water, not where the business is operated.
- Vessels: defined as any structure that is capable of carrying people or cargo on the
navigable waters of the US.
o Ports/Docks: not vessels; extensions of land.
o Vessels Permanently Removed from Navigation: are not w/in admiralty
jurisdiction; no longer a vessel.
o No Size Requirements: takes jurisdiction over anything that could have an impact
on maritime commerce.
- Contracts: issue is whether the contract had a direct enough connection over maritime
commerce and navigation.
o No English Rule: US does not follow English rule which required that the
contract be formed on the water.
o Connection b/w Contract and Vessel:
o Building Vessels: outside admiralty jurisdiction
o Repair Contracts: w/in jurisdiction, even if work being done on land.
- Torts: need a maritime situs and maritime nexus to bring tort action under
o Situs: navigable water
o Nexus: substantial connection to a traditional maritime activity; 2-prong test
applied in determination
 Look to the incident giving rise to the accident and define the incident “at
an intermediate level of generality” (AP doesn’t know what this means)
ask whether the incident has the potential to disrupt maritime commerce.
 Whether the activity giving rise to the incident (intermediate level of
generality) is one that customarily, historically performed was by maritime
- Liens:

§ 1983 – Causes of Action

§ 1983 Suits – 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 US.

- § 1983 Does NOT create federal jurisdiction – creates a cause of action; federal court
jurisdiction must arise under fed question jurisdiction 1331, and 1343(3) which grants
jurisdiction for suits redressing violations of the federal laws that provide for equal rights
of citizens.
o No Jurisdiction to review judgments and decisions of state courts – Rooker-
Feldman doctrine provides that “a party losing in state court is barred from
seeking what in substance would be appellate review of the state judgment in a
US Dist. Ct based on the losing party’s claim that the state judgment itself
violates the loser’s federal rights.
- §1983 – is the basic vehicle for federal court review of alleged state and local violations
of federal law.
o § 1983 is the basis for almost all constitutional rulings arising from the actions of
state and local govts and their officers.
- Under Color of State Law –
o §1983 – “under color of any statute, ordinance, regulation, custom, or usage of
any state or territory.”
o General Rule: §1983 liability exists for all actions taken in an officer’s official
capacity, whether authorized by state law or in violation of it.
 Monroe v. Pape – SC ruled that actions taken by an officer in his or her
official capacity are deemed to have occurred under color of law even if
they are not in pursuance of any official state policy and even if they
violate state law. The ct concluded that misuse of power, possessed by
virtue of state law and made possible only b/c the wrongdoer is clothed
with the authority of state law, is action taken ‘under the color of state
 Off-Duty Govt Officials: issue whether acting under color of state law or
in private capacity. Factors used in determining whether an off-duty
police officer exercised state authority.
• Whether there is a policy requiring officers to be on duty all the
• Whether the officer displayed a badge or an id card
•Identified himself as a cop
•Carried or used a service revolver or other weapon or device issued
by the police dept
• And whether the officer purported to place the individual under
 Public Employees w/ Independent Duties to Clients: law in area
• SC has found prison doctors to be under color of state law; no
conflict b/w the state and client, same
• SC has refused to find a public defender under color of state law,
as his loyalty is not to the govt but to the client, even though paid
by the govt. role adverse to the state
 Private Individuals Liability – private individuals who conspire with the
government officials may be sued under 1983.
 Suits Against Federal Officers – 1983 generally does not create liability
for federal officers, except when federal officers are engaged in a
conspiracy with state officials to deprive constitutional rights.
o Exhaustion of Remedies is NOT required for 1983 litigation
o Convictions MUST be overturned – in order to recover damages for allegedly
unconstitutional conviction or imprisonment, a plaintiff must first have the
conviction or sentence reversed on appeal or expunged by executive pardon.

- Persons for purposes of 1983 Liability –

o Local Govt Officials –
 No State or Territory Officials – SC has held protected by 11th Amd.
o Municipalities – under Monell, municipalities can be held liable under 1983 for
their unconstitutional or illegal policies.
 NO states – 11th amd protects; (below)
 NO Vicarious Liability – a municipality or local govt cannot be found
vicariously liable for the act of its agents
 Policy/Custom –
• Actions of municipal legislative bodies: actions by theses bodies
constitute official policies
• Agencies Exercising Delegated Authority: official policy exists
when there are actions by municipal agencies or boards that
exercise authority delegated by the municipal legislative body.
• Individuals with Final Decision Making Authority: actions by
those w/ final authority for making a decision in the municipality
constitute official policy for purposes of 1983.
o Municipal liability can not be imposed merely b/c an
employee had discretion in the discharge of his or her
duties. An official must be responsible for establishing
final government policy in order for municipal liability to
attach to his or her decision.
o Crucial question in determining whether an official has
final decision-making authority is whether under state or
local law, including relevant customs or practices, the
person has policy-making authority for the city.
• Policy of Inadequate Training or Supervision: demonstrating a
policy of inadequate training requires proof of deliberate
indifference by the local government.
o Canton described two situations of indifference
 Failure to provide adequate training in light of
foreseeable serious consequences that could result
from the lack of instruction.
 Where the city fails to act in response to repeated
complaints of constitutional violations by its
o Hiring Process – Brown ct overruled jury decision holding
county liable for hiring a cop with a criminal record who
then caused injuries to a woman after a high speed chase.
Ct said, “a finding of culpability simply cannot depend on
the mere probability that any officer inadequately screened
will inflict constitutional injury. Rather, it must depend on
a finding that this officer was highly likely to inflict the
particular injury suffered by the plaintiff. The connection
b/w the background of the applicant and the specific
violation must be strong.
• Custom: municipal govts can be sued for their customs that cause
constitutional violations even though such a custom has not
received formal approval from the official legislative body.
o Liability results not from the creation of the custom, but
from its tolerance or acquiescence in it.
o Remedies:
 Monetary Damages: must plead compensatory damages in order to bring
§1983 action.
 Nominal Damages: can recover only nominal damages; under Atty Fees
Recovery Act, can recover nominal + atty’s fees.
 Punitive Damages: allowed against individuals; NOT against
 Equitable Remedies: very difficult to procure an equitable remedy in a
§1983 action.
• Lyons v. City of LA – police chokehold case; Π wasn’t able to get
injunctive relief b/c couldn’t prove that he would be subject to the
same conduct again in the future.
 Attys Fees Recovery Act – allows Π in a 1983 suit to recover their attys
fees if brings a successful 1983 action. (can recover from municipalities
and individuals)
o Immunities: immunities are granted to government officials b/c they need to have
some freedom, latitude in making discretionary decisions.
 Absolute Immunities: cannot be sued while engaging in official duties
• Federal Judges: while performing judicial function
• President: while performing executive functions
• Legislators: for those performing a legislative function – absolute
o outside absolute when giving interviews to the press, at best
would be qualified.
o hiring/firing of personnel up in the air in circuits
o not clear who are legislators -
• Prosecutors – absolute while prosecuting the case
o not absolute during investigative stage
• Police Officers – only absolute while testifying while witnesses
o EX: fraudulent statement written by police officer on
affidavit, lower courts are split on whether this is absolute
immunity; could charge w/ perjury if lies under oath, no
 Qualified Immunities: other govt officials, or above officials acting
outside absolute immunity are generally given qualified immunity.
• Good Faith: OBJECTIVE STANDARD - have to have a
reasonable basis for believing that what you were doing was
lawful. (not violation of constitutionally or congressionally
created rights)
 Good Faith Defense: those actors not working under an immunity can
raise a good faith defense. (similar to qualified immunity standard)
 IMMEDIATELY APPEALABLE: if an immunity is rejected by the
court, the issue is immediately appealable.

11th Amendment
11th Amd provides that “the judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or subjects of any foreign state.”

- Competing views of the 11th Amd

o Current view: the 11th Amd reflects a broad constitutional principle of sovereign
immunity that protects states from virtually all suits in federal court. PA v Union
Gas Co.
o Diversity Jurisdiction View: 11th Amd bars only suits founded solely on diversity
 Under this view, the 11th would not bar suits against states based on
federal question jurisdiction; thus, all claims of state violations of the US
Constitution or federal laws could be heard in federal courts.
View is inconsistent with Hans v LA, which was not a diversity suit;
justices espousing this view would overrule Hans as incorrectly held.
o Old View: 1980s if federal jurisdiction is based on the existence of a federal
question or some other clause of art III, however, the 11th Amd has no relevance.

- Broad definition of State: basic principle is that if a money judgment would be paid by
the state treasury; the action is barred by the 11th.
o Agencies of State Govt: part of the state for 11th purposes (dept of health, etc)
- State Officials: generally, suits against state officers are not barred by the 11th Amd.
o Applications of General Rule:
 Injunctive Relief: 11th does not preclude suits against state officers for
injunctive relief, even when the remedy will enjoin the implementation of
an official state policy.
• Ex Parte Young held that officers acting in violation of the
Constitution cannot claim to be the state for purposes of the 11th
Amd., and are in fact stripped of all state authority.
• Home Telephone & Telegraph v LA held that an officer is stripped
of state authority solely for purposes of 11th Amd analysis, a result
that does not affect the determination of state action under the 14th
 Prospective Relief: 11th does not prohibit a federal court from giving
injunctive relief against a state officer even though compliance with the
injunction will cost the state a great deal of money in the future.
• 11th Amd does not forbid a federal court from issuing an
injunction, even when compliance will cause the state to expend
substantial amounts of money.
• Graham v Richardson – SC held that AZ and PA officials were
prohibited from denying welfare benefits to otherwise qualified
recipients who were aliens, regardless of the large sums of money
the states would have to pay to comply.
• Milliken v Bradley – SC upheld a school desegregation order
requiring the expenditure of school funds for education aspects of a
desegregation plan including several remedial and compensatory
based programs. (commentators argue this is retroactive, or at
least shows no distinction b/w pro/retro relief)
o Exceptions:
 Suits for Money Damages Paid by State Treasury: are barred, even if the
officer is named as the defendant.
 Federal Pendent Jurisdiction Claims: 11th prohibits federal court pendent
jurisdiction over state law claims against state officers.
 Retroactive Relief: 11th prevents a federal court from awarding retroactive
relief (damages to compensate past injury) when those damages will be
paid by the state treasury.
• Edelman v Jordan – ct refused to allow an injunction ordering
payment of previously owed sums to welfare beneficiaries.
- Denial of 11th Amd Immunity: IS IMMEDIATELY APPEALABLE

Suits Against States Barred by the 11th Amd

- Suits by Out-of-State Citizens: Facially the 11th precludes only suits against states by out-
of-state citizens in federal court
- Broad Construction by Courts –
o Suits by In-State Citizens: 11th bars suits by in-state citizens Hans v. LA
o Suits in Admiralty: against the states
o Suits by Foreign Nations:
o Suits by Indian Tribes:
o 11th precludes damage suits against state officers for official conduct, Ex Parte
Young – officer who violates federal law is stripped of state authority and
therefore subject to injunctive relief action in individual capacity
o 11th allows injunctive actions against state officers for official conduct; Edelman
v. Jordan
o Congress has a limited power to abrogate the states 11th amd immunity Seminole
Tribe v. FL
- Consent to be Sued Required: state govts cannot be sued in state court w/out their
consent. Alden v Maine
o Must be Express Consent: for state to be sued in federal court.

Suits Permitted Against States

- US Govt Against State: 11th does not bar suits against states by US govt
- Another State Against State: 11th does not bar suits against a state by another state
o State Must Sue to Protect Own Interests: state cannot sue on behalf of its citizens
- Appellate Jurisdiction: 11th does not prevent the US SC from hearing claims against a
state as part of its appellate jurisdiction.
o 11th Only Bars Suits: ‘commenced or prosecuted’ in federal court, not a limitation
on appellate jurisdiction
- Municipalities/Political Subdivisions of a State: 11th does not bar suits against
municipalities or political subdivisions of a state.
o Substantial State Involvement: 11th Amd immunity does NOT extend to local govt
when there is so much state involvement in the municipalities actions that the
relief, in essence, runs against the state. Pennhurst State School Hospital v
o State Pays Judgment: 11th Amd prevents suits against if a money judgment has to
be paid directly out of the state treasury.
 Indemnification Irrelevant: if a suit is against the state, then the 11th Amd
bars the suit even if there is no risk of actual state financial responsibility.
Regents of University of California v Doe
o State Agencies: part of the state for purposes of 11th Amd; cannot sue.