Federal Courts and the Federal System

The Nature of the Federal Judicial Function

 Advisory Opinions and Questions of what controversies are Justiciable
o Sought by Washington, Jefferson, but rejected by Jay, not part of Judicial Power
 Textual Grounds: Advice reserved to cabinet in Art. III
 Functional Grounds: checks and subsequent cases
 Prudential Grounds: judicial independence
 Rejection was an early step in defining “cases or controversies”
o “Any judgment subject to review by a co-equal branch”
o Aetna Life Ins. Co. v. Hawarth (1937) said Declaratory Judgments don’t count
o Justiciability has a few jointly sufficient but maybe not necessary conditions
 Adverse parties (cf. FISA courts, warrants)
 Res judicata or preclusive effects (cf. invalid warrants)
 Marbury v. Madison (1803) defined much of how the American system sees the Judicial
Power and Function
o Jurisdiction/Rights/Remedies at play here, as Marshall implies that every Right
deserves a Remedy but says SCOTUS has no Jurisdiction (equilibration!)
 Jurisdiction is the power to avoid trouble
 Courts always have jurisdiction to determine their own jurisdiction
o Provides and demonstrates Judicial Models
 Dispute Resolution/Private Rights Model: the court is not meant to
vindicate abstract interests in govt’s compliance with the rule of law, and
justiciable cases are those that present a violations of legal duties that
cause distinct and palpable injury a concrete, legally protected interest
 Here, Marbury had a right to his commission vested by Congress,
clear injury and factual grounding for the case
 Law Declaration Model: the province of the judicial department is to say
what the law is
 Marshall undoubtedly seizes judicial supremacy over the
Constitution but within political proscribed bounds as it relates to a
practical effect
Standing
 Standing rations judicial power by determining who is entitled to sue. It deals with parties
and not with the fitness of issues
o Is the litigant entitled to have the courts decide their case?
o As a concept, it arose in the mid-20th Century, but prior to “standing,” the
common law model allowed suits only to protect liberty and property rights
 Thus, Liberty and Property Rights also confer standing if violated
 Side Effect: Regulated Parties nearly always have standing to
challenge what regulates them, as opposed to regulatory
beneficiaries, who rarely have standing to privately enforce

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  The common law model proved inadequate as statutory rights were
created by a larger administrative state and constitutional rights came to be
seen as personally held
o Modern doctrine is a compromise between institutions allowing anybody to sue
and the role of courts in enforcing expanded rights
 Plaintiffs must identify
o A CONCRETE INJURY
 Not necessarily economic, can include political and other modern rights
 This might carry an implied imminence or likeliness requirement for
threats or when injunctions are requested
 But Summers v. Earth Island Institute, Inc. (2009) and Clapper v.
Amnesty International USA (2013) both said a mere statistically
likelihood of harm is not enough
 Cf. Susan B. Anthony List v. Driehaus (2014), which allowed a
substantial risk of administrative proceedings to grant standing
where a group stipulated it would violate a soon-to-pass law
o THAT THE DEFENDANT CAUSED
o THAT A PROPERLY FRAMED JUDICIAL DECREE CAN ADDRESS
 Court demands standing, separately, for every remedy sought
 Jurisdiction/Rights/Remedies and Equilibration theory
o What counts as an injury varies with the constitutional Right
o Definitions of Rights depend on Remedial consequences
o Determinations of Injuries can depend on Remedies sought
 Fairchild v. Hughes (1922) said there was no general right of citizens to require courts to
force the government to administer the law, need a violation of some held, ind. Right
o Was a suit to declare the 19th Amendment unconstitutional (states rights)
 Allen v. Wright (1984) was a sweeping case dealing with whether stigmatic injuries can
confer standing, saying that they do not without personal denial of equal treatment
o Many black parents sued to force the IRS to adopt stricter standards that would
deny tax-exempt status to discriminatory private schools, alleging 2 injuries
 1) Financial aid and support for segregated institutions tacitly endorsed
segregation by the government, a stigmatic or psychological injury
 O’Connor says no injury absent personal discrimination, would
allow any racial minority to sue for discrimination anywhere
 cf. Heckler v. Mathews (1984) which allowed men to challenge SS
benefits that gave more to women due to wage discrimination
(unequal classification as its own injury), also Shaw v. Reno (1993)
 2) Aid and support encouraged the creation of segregated schools which
could avoid desegregation remedies ordered by courts
 O’Connor says this can support standing in some circumstances
but here, this effect was not fairly traceable to the alleged

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 government conduct and thus there was no way for a judicial
decree to address it (it was Not Redressable)
 The lack of Remedy affecting Right
o See Los Angeles v. Lyons (1983): denying injunction
against chokeholds since it didn’t address his harm of
already being chocked
o Dissents noted that there was an obvious encouragement of segregation if money,
rebates, or credits were given to segregated schools, simple economics
o Can read the conflicts between Allen and other cases with a Cynical or Non-
Cynical Realism lens, but some level of realism is almost certainly required
 Flast v. Cohen (1968) is a strange case that allowed Taxpayer Standing to challenge
financial support for educational programs in schools, requiring the taxpayer
o 1) Establish a logical link between their taxpayer status and the type of legislative
enactment attacked
o 2) A nexus between that status and the precise nature of the constitutional
infringement alleged
o Valley Forge Christian College v. Americans United for the Separation of Church
and State (1982) said this did not apply to executive actions and only applied to
laws passed under the Tax and Spend Clause
o Hein v. Freedom From Religion Foundation, Inc. (2007) limited standing to
expenditures made pursuant to a specific Act of Congress, not general spending
o Arizona Christian School Tuition Org. v. Winn (2011) said voluntary credits to
voluntary funds to provide kids with private school funds were not within the
ambit
o Flast has been functionally contained to its facts and is almost dead law
 Congressional Power to Regulate Standing
o Lujan v. Defenders of Wildlife (1992) was the first time that SCOTUS struck
down a law for unconstitutionally conferring standing on someone
 Here, Endangered Species Act suit by environmental groups to restore an
old interpretation of the Act that applied it to actions in foreign nations
 Scalia says they did not establish imminent injury (plane ticket) of losing
the ability to study and observe the animals
 Plurality holds the injury would not be redressable either since the
statute already provided a remedy (withholding funding) and the
funding at issue for the foreign projects was not outcome
determinative (think Allen’s theory that pulling funding schools
would not stop them fully)
 Most importantly, Scalia holds that the ESA’s “citizen suit” provision
allowing anyone to sue to enjoin any violation of the act is
unconstitutional, too much a “generalized grievance” barred by Art. III
 Allowing it brings in huge separation of powers concerns
regarding executive prerogative to faithfully execute the law

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  Congress can elevate concrete, de facto injuries previously
inadequate to a legally cognizable status, but must still be concrete
o Deprivation of procedural rights are injuries if they protect
something that would constitute injury in fact
o Prior to Lujan, it had been assumed Congress had full control over standing
 FCC v. Sanders Brothers (1940) upheld standing for persons aggrieved or
adversely affected by a government action (“competitor” standing here)
 Trafficante v. Metropolitan Life Ins. Co. (1972) upheld grant of standing
to any tenant to sue their landlord over discriminatory rental practices
 Along with Havens Reality (1982), allowed conference of standing
to those not injured under traditional common law definitions
 Still uncontroversial that Congress can create legal duties and causes of
action, but question in these is whether they can change the definition of
“injury”
 Less controversial when Congress grants standing for one private party to
sue another, as opposed to where they grant standing for a private party to
sue the government to enforce the law
 Compare Friends of the Earth v. Laidlaw (2000) with Lujan
 But, Massachusetts v. EPA (2007) and FEC v. Akins (1998)
allowed suits against agencies to force reexamination of law or
cause enforcement
 Standing to Assert the Rights of Others
o Craig v. Boren (1976) allowed asserting the rights of third parties that are diluted
or adversely affected by one’s case, as long as one already has standing based on
some personal injury
 Here, a liquor store owner sought to challenge a law establishing different
drinking ages for men and women in OK, allowed to assert male EP rights
 Court analogized to Eisenstadt v. Baird (1972), which allowed vendors of
illegal contraceptives to defend the privacy interests of 3rd parties
o Third party standing = jus tertii
 This is not a constitutional doctrine, it is of judicial discretion
 Fallon’s theory is that everyone has a personal constitutional right not to
be sanctioned under an unconstitutional law, and would differentiate
between
 Valid Rule cases: parties who are actual or possible defendants in
enforcement actins can or could claim their own rights
 Real Third Party Cases where there is no sanction or punishment at
issue
o Requires that the single application of a law will hurt you and the 3rd parties
whose rights you seek to assert, the post-Craig test:
 Some sort of relationship between litigants and 3rd parties

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  Some sort of impediment to 3rd parties’ effective assertion of rights
through litigation
 A likely adverse impact on the 3rd parties if plaintiff’s challenge fails

 As Applied vs. Facial Challenges

o Basic definitions
 As-Applied: Arguing that a statute cannot be applied because its
application would violate your personal rights
 Facial: Arguing that a statute is unconstitutional in all possible
applications
 Yazoo and Mississippi Valley R.R. v. Jackson Vinegar Co. (1912)
saw the court treat these like a 3rd party standing case and refuse to
assert rights that might apply in a different case (fines statute here
would be valid as applied were it limited)
 Severability: severing or separating invalid parts of a law and retaining or
enforcing the valid parts or applications
 In the extreme, this doctrine would block all facial challenges (see
Yazoo)
 There is a Presumption of Severability as long as
o 1) Congressional intent allows for severability in some way
(see Murphy v. NCAA (2018) for where it doesn’t)
o 2) The court does not need to dip into legislative
function/pass a creativity limit
o Board of Airport Commissioners v. Jews for Jesus, Inc.
(1987) dealt with the Overbreadth Doctrine of the 1st
Amendment, which is an exception to the Presumption of
Severability where a law is clearly violative of free speech
o Facial Challenges are fairly common and empirically more successful than as-
applied
 United States v. Salerno (1987) is technically the leading case but reads as
much more hostile to facial challenges than is true in practice
 Formula is supposed to require no set of circumstances under
which the Act would be valid
 Gonzalez v. Raich (2005) seemed to say that plaintiffs challenging statutes
as being beyond Congressional authority must challenge facially
 City of Boerne v. Flores (1997) seemed to say that challenges to authority
of Sec. 5 of the 14th Amendment must be facial as well
 Tennessee v. Lane (2004) said as-applied challenges were required
where a statute seeks to implement multiple rights under Sec. 5
 United States v. Georgia (2006) followed Lane in ADA context
 But Shelby County v. Holder (2013) upheld a facial challenge to the VRA
 When these are based on Vagueness, they are typically upheld

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 o Fallon Theory on what is happening in the doctrine here
 All challenges to statutes begin when someone argues that a statute cannot
apply to them and gives a reason, with the given reason often having
implications for how the statute may or may not apply to others
 Sometimes, the given reason indicates facial invalidity, sometimes partial
invalidity and sometimes invalidity in only a few cases
 But often, the given reasons invoke tests that measure constitutionality in a
facial manner, and thus facial challenges are often succeeding despite the
anxiety in calling them such
 Where it is not obvious whether severing is necessary to save a statute, but
where there is an obvious way to sever the statute were it necessary to
save it, the court will sometimes uphold the statute without deciding
whether severing is necessary in fact
Mootness and Ripeness
 Ripeness
o If ripeness is distinct at all from injury inquiries in standing, it is because it
involves insufficient facts on which to judge a dispute
o United Public Workers v. Mitchell (1947) said a challenge to the Hatch Act was
not ripe since none of the Plaintiffs had yet been charged, too much advisory
 It appeared that the employees had standing due to their imminent injury
once violations occurred, but the case was not ripe since the contours of
their violations had not been spelled out
o Abbott Laboratories v. Gardner (1967) said that where issues are fit and a
regulation requires immediate and significant change in conduct with serious
penalties possible, ripeness does not bar a declaratory judgment
 Still the standard test for pre-enforcement regulation challenges
 Reno v. Catholic School Services, Inc. (1993) said that immediacy requires
a penalty directly from the challenged regulation
o These cases are often framed as issues of whether something constitutes a “case
or controversy” under Art. III and mostly arise over injunctions
 Standing and Ripeness are typically found when seeking an anti-
enforcement injunction
o O’Shea v. Littleton (1974) dealt with an extremely broad suit against Cairo, IL’s
justice system for civil rights violations against blacks, finding that the complaint
failed to plead any continuing adverse affects despite asking for an injunction
 No particularized injuries identified towards any of the plaintiffs , and past
exposure to illegal conduct does not itself create a present case for
injunctive relief without continuing adverse effects
 Case massively blurred ripeness and standing, and showed the large issues
with ripeness in suits that seek to enjoin executive actions that are not
based on statutes
 Case also blurred justiciability with remedies, as the relief requested
informed if the case had a redressable harm
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  Injunctions are disfavored where discretionary executive action is
challenged rather than a statute
 Equilibration clear, an injunction would amount to a constant and
full audit of law enforcement, which the court is consistently
unwilling to do (see implications of Yick Wo)

 Mootness
o Federal courts are not allowed to decide questions that cannot affect the rights of
litigants in the case before them (Art. III “case or controversy” requirement)
 Thus, if the underlying alleged harm of a case ceases, the case is moot
 However, due to concerns of defendant’s gaming the system, if there is a
sufficient probability of a recurrence that the court can prevent, the case
will not be moot
 Damages cases never become moot, dealing with past harm and
compensation
 Doctrine stems from the court’s concern to nominally embrace the Dispute
Resolution Model
o Originally thought of as “standing set in a time frame” but Friends of the Earth v.
Laidlaw (2000) rejected the idea that it was tied to standing
o Instead seems to be a flexible doctrine designed to dismiss some cases that have
been resolved without judicial action and feature issues unlikely to reoccur
o Term Definitions
 Voluntary Cessation: where a defendant ceases the allegedly offending
underlying conduct, the heavy burden is on them to show the harm will
not resume (Iron Arrow Honor Society v. Heckler (1983))
 Capable of repetition, yet evading review: mootness does not bar cases
where period of harm is too short to allow a lawsuit to fully progress, but
the harm could repeat (classic ex. is Roe v. Wade)
o DeFunis v. Odegaard (1974) said that a student’s challenge to affirmative action
practices at UW Law was moot since he was about to graduate, and had already
registered for his last term (had been admitted after Dist. Court agreed)
o Disposition of Mooted cases
 Civil cases in the federal system: generally vacated/reversed judgment
below and remanded with direction to dismiss
 Criminal cases in the federal system: indictment stands but appeals
dismissed
 Bankruptcy Cases: equitable principles govern
o In class actions, there is a named plaintiff standing requirement and appeal of the
denial of a class certification averts any mootness arising from the plaintiffs
change in status (U.S. Parole Commission v. Geraghty (1980))

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State Court Jurisdiction
 State courts can hear many and probably most claims based on federal law, but not
necessarily all of them
o Issues exist regarding State Court Obligations, State Court Powers to Hear
Federal Claims, and the Congressional Power to Alter State Powers and
Obligations
 Tafflin v. Levitt (1990) said that state courts have inherent authority to adjudicate claims
arising under federal law, with implied concurrent jurisdiction being operative unless
Congress denies it
o Case here dealt with whether state courts could hear civil RICO actions
o Congress can deny by (Gulf Offshore (1962) test)
 Statutory directive
 Unmistakable implication from legislative history
 Clear incompatibility between state court jurisdiction and federal interests
o Yellow Freight System, Inc. v. Donnelly (1990) arguably embraced Scalia’s
concurrence in Tafflin, which argued for an express withdrawal of jurisdiction
requirement from Congress
 Tennessee v. Davis (1880) made clear that original state court cases can be easily
removed to federal courts wherever Congress allows
o Case dealt with a federal official indicted for murder in TN, but allowed to
remove to federal court
o 28 U.S.C. § 1441 allows general removal for civil cases that can originally be
brought in federal court
o 28 U.S.C. § 1442 allows federal officers and agencies to always remove to federal
court, even if only link is a federal defense
o Congressional Provisions for removal and exclusive federal jurisdiction are
permissible for good purposes (like protecting federal rights and interests)
 Tarble’s Case (1872) held that state courts cannot issue habeas petitions to compel
federal officials, following up on Abelman v. Booth (1859) which had held the same for
post-conviction relief.
o Controversial departure from traditional historical practice
o Dissent even thought this violated the Suspension Clause (for example, what if no
lower federal courts existed in this scenario? Who hears Tarble’s petition?)
 Resolutions to this problem include endorsing the idea of no
constitutionally mandated remedies, fed courts being necessary, rejecting
Tarble’s outright, or reading Tarble’s as implied preclusion in federal
habeas statute
 State Court Obligations

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 o Testa v. Katt (1947) held that state courts were not free to refuse enforcement of
claims brought under federal law which meet their general jurisdictional
requirements (essentially, state courts can be fully commandeered)
 Considered an obligation from the Supremacy Clause
 State courts cannot discriminate against federal causes of action
 Some thought Testa was threatened by Printz v. United States (1997) but
Jinks v. Richland County (2003) suggested it is on firm ground
o There are Valid Excuses for refusal to hear a case
 Douglas v. New York, New Hampshire and Hampton Railroad (1929)
allowed NY to refuse to hear a FELA action that had ties exclusively to
CT
 But Haywood v. Drown (2009) held that substantive disagreements with
federal law always yield to hearing the claim (here, state had a
jurisdictional rule that conflicted with them hearing a federal case
 States can refuse if they have non-discriminatory excuses such as forum
non conveniens
o Dice v. Akron, Canton and Youngstown Railroad (1952) said that federal law
governed what defenses can be brought in federal cases heard in state courts, and
more broadly that federal law controlled all substantive issues in federal rights
cases brought in state court, but not procedural issues
 Here, Dice sued under FELA in OH State court, which recognized a broad
contributory negligence defense that screwed him out of relief (had signed
a release under false pretenses)
 FELA provided that releases of its rights were void if obtained by fraud,
which conflicted with the OH defense, but the defense was forced to yield.
Similarly, OH was forced to provide a jury trial, which was part of the
rights guaranteed under FELA
 But Bombolis (1916) had said states could use their own jury
procedure, as long as they provided a jury in first instance
 Case was clarified in Felder v. Casey (1988): state courts are taken as
found only insofar as those courts employ rules that do not impose
unnecessary burdens upon rights of recovery authorized by federal laws
o After Dice, there is a presumption of state procedures in state courts, but with a
federal preemption allowance
 Outer limits of this is the question of whether Congress could impose
federal procedures in any case involving federal rights
 Fallon thinks Congress could force any state court with personal
jurisdiction to hear a federal claim if it phrased it strongly enough
 Federal procedures apply in state courts when they are
 1) formally mandated or
 2) integral to federal substantive rights
Supreme Court Jurisdiction to Review State Court Judgments

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 The 1789 Judiciary Act game SCOTUS mandatory jurisdiction of state high court
decisions that denied federal rights
o 1914 Judiciary Act extended this to any decision over federal rights and
introduced certiorari as a means to review other state court judgments
discretionarily
o 1916 and 1925 Acts expanded certiorari review and the 1968 Amendments to the
1925 Act ended mandatory jurisdiction entirely
 Martin v. Hunter’s Lessee (1816) upheld the constitutionality of SCOTUS reviewing
state high court judgements involving federal rights, jurisdiction granted by Congress in §
25 of the 1789 Judiciary Act
o Appellate power can extend to all cases under the Constitution, strong uniformity
concerns, fears of abusing forum selectin
 Murdock v. City of Memphis (1875) held that when SCOTUS reviews state high court
rulings, the review is generally limited only to the federal issues contained in the case,
except where a question of state law is an antecedent question to deciding if a federal
question exists.
o Congress had eliminated a limiting last sentence in §25 that could have implied
SCOTUS could review the entire case, but SCOTUS declined to take that power
in a case involving the granting of land for a federal navy yard in Memphis
o Antecedent vs. Distinct
 Antecedent: winning on a state claim is a necessary condition for raising
the federal issue at all. This provides limited review of the state issue in
order to protect federal rights from possible state evasion
 ex. is Martin v. Hunter’s Lessee, where the court needed to
determine if a property right to the land existed at all before
deciding whether the Jay Treaty protected it
 Distinct: like the case at issue in Murdock, the plaintiff can win by
prevailing on either state or federal grounds, which are unconnected
 Under Michigan v. Long (1983) and modern doctrine, SCOTUS
would deny review in total if an adequate independent state ground
existed
 Fox Film Corp. v. Muller (1935) established the Adequate and Independent State Ground
Doctrine, which denies SCOTUS review of a state court decision mixing state and federal
issues where the decisions on state law fully support the judgment
o i.e. where the outcome is determined regardless of whether the federal question
gets involved
o Here, MN SC found arbitration clauses barred by the Sherman Anti-Trust Act to
be inseverable from a film exhibition contract (state law ground) while noting that
the clause was illegal due to federal law
o Federal Jurisdiction will fail where the state court rules against a federal right
holder on state law grounds and that ground is broad enough to support the
judgment, and there is no basis for setting aside the state law decision

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 Michigan v. Long (1983) dealt with ambiguous state decisions and created a new test for
dealing with situations where the opinion’s grounding is unclear
o Where a state court decision fairly appears to rest primarily on federal law or to
be interwoven with the federal law, and when the adequacy and independence of
the state law ground is not clear from the face of the decision, it is assumed that
the state court rests at least partly on federal law (creating jurisdiction)
o Essentially creates a presumption of federal jurisdiction over mixed state and
federal cases
o Heavy realism considerations in this case, since MI had interpreted the 4th
Amendment extremely broadly, but it was unclear if they believed the MI
Constitution fully supported their holding
o Stevens dissent was annoyed that the court was reversing judgments that potential
overprotected citizens, viewing it as not a big deal
o Pennsylvania v. Labron (1996) strengthened Long’s assumptions and created a
clear statement rule for independent state grounds
 Indiana ex rel. Anderson v. Brand (1938) said the Contract Clause prevented the voiding
of a lifetime teaching contract (state law) created by statute
o Contract clause cases often involve the question of a constitutional guarantee with
a substantive law predicate, as do Due Process and Takings Clause cases
o Constitutionally Protected Property, Liberty and Contract are all state law issues
with some level of federal protection
 Court deals with these often by looking at state rules and determining their
constitutional effect
 A type of Patterning with Federal Minima and Maxima
 Minima: there is some federal “core” of protected property that
states cannot define or get around
 Maxima: there is some federal “boundary” that prevents too-
expanded definitions
 Cardinale v. Louisiana (1969) held that persons can potentially forfeit federal law claims
and arguments that they do not raise in state court, and affirmed that the Court does not
decide constitutional questions raised for the first time on review of state court decisions
o Concerns that the record will be inadequate and that state courts should be given
first pass at deciding challenges to their own statutes
o Realism concerns here too, Cardinale was a convicted murderer
o Yee v. City of Escondido (1992) clarified that arguments cannot be waived in this
way but that federal claims can be (plaintiffs must make clear that a claim rests on
federal law, but can make any argument in favor of that claim in first instance
later)
o There have been exceptions to this but only in egregious and extreme
circumstances
 Vachon v. New Hampshire (1974): due process claim allowed in a case
with massive insufficiency of evidence

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  Wood v. Georgia (1981): due process claim allowed where appellate
lawyer was employed and paid by the defendant’s employer (huge conflict
of interest)
o Court has never clarified whether this is a jurisdictional (discretionary) or binding
bar, but 28 U.S.C. § 2106 and the exception cases suggest it is discretionary
 Staub v. City of Baxley (1958) saw the court claim jurisdiction over a case where federal
claims were raised in a state court but in a way the state court found procedurally
deficient
o Here, Staub challenged a city ordinance that prevented union recruiting under the
1st and 14th amendments, but GA courts said that it was inadequately plead since it
asserted a blanket challenge to the whole ordinance rather than reciting challenges
to each individual section
o Broadest reading is that state procedural law is not an adequate ground for any
judgment denying federal rights
o Notwithstanding, generally procedural default based on state law will prevent
review of federal claims by federal courts, and courts will only review where the
procedural ground is inadequate to support the judgment. 4 grounds for this:
 SCOTUS review is never foreclosed by procedural rules that are found to
violate the Due Process Clause
 But see Herndon v. Georgia (1935), where a 1st Amendment
challenge was not properly “preserved” despite it only arising after
a new interpretation of a GA statute was issued in the immediate
case (got to GA SC, their interpretation raises 1st Amend ?,
SCOTUS says no jurisdiction)
 SCOTUS review is also not foreclosed by procedural grounds that are not
fairly supported by state law due to novelty or inconsistent application
 Grounds of Staub
 SCOTUS review is not foreclosed by unacceptably burdensome
procedures
 SCOTUS Review is not foreclosed by discretionary rules that are abused
 Court will review how discretionary rules are applied by state
courts in the past to see if discretion has been abused
 Beard v. Kindler (2009) said discretionary rules are never per se
inadequate to support state judgments, at least in habeas context
 Henry v. Mississippi (1965) layered on a “legitimate state interest”
requirement for procedural rules that forfeit federal rights but has been
mostly ignored sense
 Summary: Barriers to SCOTUS Review of State High Court Decisions
o Rule 14 for certiorari petitions
o 28 U.S.C. § 1257 requires setting up the specific question regarding federal rights
in the state court

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  Even if done, are there adequate independent state substantive law
grounds to support the judgment?
 Even if done, are there adequate state procedural grounds to support the
judgment?

Habeas Corpus
 Has a primary use now of post-conviction remedy for prisoners claiming an error of
federal law in their underlying judicial proceedings, but used to be largely about extra-
judicial executive detention
o Often comes up in immigration matters, mandatory military service, pretrial
detention
o § 14 of 1789 Judiciary Act granted issuing power to federal courts, and Ex Parte
Bollman (1807) upheld the grant as constitutional
 But said power to grant was statutory, not constitutional (controversial)
 Now codified at 28 U.S.C. § 2241-55
 AEDPA made significant changes to this, limiting federal habeas
power over state postconviction appeals, restricting evidentiary
hearings and the ability to disregard lower fact findings
o Introduced need for a state court to have violated some
“clearly established federal law” embodied in a SCOTUS
decision
o 1 year S.O.L.
 Rights to counsel only in capital cases
 Exhaustion of state remedies is required (§ 2254(b))
o Making clear this only deals with the relitigation of issues,
not defaulted claims (excluded from habeas review)
o Biggest distinctions courts make in habeas are the categories of claims/cases,
types of issues that can be raised, and the standard of review of the state court
o 5 Models of Collateral Review
 Substitute for SCOTUS Review in Criminal Cases
 Brown v. Allen regime is similar to this
 Federal Rights Always Deserve a Federal Forum
 Fay v. Noia (1963) edged towards this on ? of law
 Fair Process Check
 Guilt Matters (case-by-case or “generic”)
 Burger/Rehnquist flirt with this in order to exclude cases where
guilt is not at issue (Stone v. Powell) but also proceed confusingly
where guilt is at issue
 Continuing questions about what to do with freestanding innocence
claims (Herrera compared with in re Davis)

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  Audit or Correction of Egregious Violations
 Appears to be AEDPA’s policy
 Brown v. Allen (1953) was the Warren Court’s expansion of habeas to review all
constitutional issues that state courts passed on
o Had a few standards that they defined
 Petitioner needed to make prima facie showing of a constitutional
violation
 State remedies needed to be exhausted
 State record of proceedings was relied upon, and judge must either call for
it or hold an evidentiary hearing if it is not filed
 State determinations of fact are accepted (unless there is a process error or
violation in their gathering or adjudication) but state determinations of law
are reviewed de novo
 Blended fact/law questions are for the District Court judge
o Jackson’s famous “we are not final because we are infallible, but we are infallible
because we are final” quotation
o Case introduced ideas of whether SCOTUS was attempting to use habeas to
always guarantee federal rights a federal forum
 Brennan consistently said habeas was not revising state court judgments
but instead acting on the body of the prisoner, totally different frame
o Brown has been extremely limited over the years
 Stone v. Powell (1976) said the court would not review exclusionary rule
determinations on habeas review unless there had not been a fair
opportunity to litigate below (arguably says 4th Amendment violations do
not give rise to habeas review at all)
 Herrera v. Collins (1993) held that newly discovered evidence that goes
towards innocence did not state a ground for federal habeas relief, unless
there was also a constitutional issue in play
 Teague v. Lane (1989) attempted to settle the confusing doctrine around when decisions
are retroactive and if this differed in the direct and collateral review contexts
o Warren court had kind of made a mess of things by introducing a few
nonretroactive decisions (Linkletter v. Walker (1965), Johnson v. New Jersey
(1966))
 Stovall v. Denno (1967) creates a three factor test to judge retroactivity of
new constitutional rulings
 Justice Harlan criticized this test in a dissent in Stovall
 All cases on direct review are fully retroactive (adopted by the
court in Griffith v. Kentucky (1987))
 Habeas should be a case by case determination on retroactivity
o Teague deals with whether they will be adopting this
o Here, the court says that new constitutional rules will not apply retroactively on
collateral review

14
  New: a rule that breaks new ground or imposes a new obligation on the
states or federal government (i.e. anything not dictated by precedent,
extremely broad interpretation in Butler v. McKellar (1990))
 This definition has been replaced by the one contained in §
2254(d)(1) which was passed in AEDPA
 Exceptions
 If the new rule provides that the conduct for which the defendant
was prosecuted is constitutionally protected (now considered
constitutionally required under Montgomery v. Louisiana (2016))
 If the habeas court finds that the new rule (never been used!)
o Implicates the fundamental fairness of the trial; and
o Without the new rule, the likelihood of an accurate
conviction is seriously diminished
 Further, retroactivity is now a threshold issue, so announcing a new rule
prevents reaching the merits in habeas in almost all cases
 Terry Williams v. Taylor (2000) interpreted AEDPA’s effect on SCOTUS habeas
jurisdiction
o O’Connor, in a majority opinion only on this issue, finds that AEDPAs § 2254(d)
(1) sharply limited SCOTUS jurisdiction of state court decisions in habeas review
 The § limits review to places where a state court made a decision
“contrary to” or that was “an unreasonable application of” a “clearly
established rule”
 O’Connor reads these provisions separately
 “Contrary to:” substantially different from the relevant precedent,
clear facial mistake
 “Unreasonable Application:” applying a rule to facts in an
objectively unreasonable manner
o Crucially, this is different than an incorrect application of
the law. Some applications the court considers incorrect
will not receive habeas review
 “Clearly Established:” anything that is considered an “old” rule
under Teague as long as SCOTUS announced it
o Greene v. Fisher (2011) held that “clearly established law”
does not include decisions announced after the last decision
on the merits in state court but before the conviction
becomes final on direct review
o Stevens had a long quasi dissent (despite having the majority for the judgment)
that all § 2254(d)(1) did was codify Teague to the extent it requires fed habeas
courts to deny relief contingent on a rule of law not clearly established at the time
of finality, with the SCOTUS announced it qualification

15
 Did not see the “contrary or unreasonable application” language as
requiring deference to reasonable good faith interpretations of federal law
made by state courts
o Judgment here was that the VA SC had wrongly applied SCOTUS precedent,
regardless of whether you took “contrary” or “unreasonable application” as
separate or the same
 These kinds of case are extremely rare, more typical is where the
SCOTUS rule is somewhat vague and there is a debate about whether the
application is unreasonable (see Lockyear v. Andrade (2003))

 Interaction of Terry Williams, Teague and AEDPA § 2254

o § 2254(d)(1) has a broader limitation on jurisdiction than Teague, at least given
how Terry Williams interpreted its “contrary to” and “unreasonable application”
standard. It bars granting the writ for claims adjudicated on the merits in state
court unless they unreasonably applied a clearly established rule or their ruling is
contrary to a clearly established rule
 But §2254 only applies where a habeas claim was adjudicated on the
merits in state court
o Effects
 On Brown: instead of de novo review, apply § 2254(d)(1)
 On Teague: now would be a § 2254(d)(1) case, and for all other
relitigation you first apply § 2254(d)(a)
 Exhaustion of state remedy requirements in habeas means that
Teague only applies where there is
o neither a state court determination on the merits.
o nor a procedural barrier to the exercise of jurisdiction
 On Teague exceptions: technically still good wherever Teague applies
 On Stone v. Powell: still good law
o § 2254(d) dominates the relitigation space, but does NOT APPLY to
precluded/procedurally defaulted claims
 Federal Habeas Review of State Procedural Default
o Daniels v. Allen (1953) initially said that a procedural service failure (of 1 day!)
precluded federal habeas review
o Fay v. Noia (1963) rejected Daniels and expanded habeas review to defaulted
claims
 The “adequate state grounds” doctrine discussed above was explicitly
limited to appellate review
 Theory was that Habeas acts on the body of the prisoner, it is not revising
state court judgments
 Created a “deliberate waiver” exception to prevent abuses

16
 o Wainwright v. Sykes (1977) created the modern regime, which rejected Fay and
held that state procedural default of constitutional claims will typically bar federal
courts from considering them in habeas review
 Murdock is reapplied in the habeas context, here it prevented hearing this
case where defendant failed to make a contemporaneous objection
 Fears of undermining state court finality
 Francis v. Henderson rule is adopted, habeas after procedural default will
only lie with good cause and where actual prejudice would result from
denying
 Cause embraces only
o 1) Reliance on a novel constitutional claim that even good
lawyers would not have raised
 Must also fit within the Teague exceptions
o 2) Deficient performance by counsel that constitutes a 6th
Amendment violation
o 3) State creation of an “external impediment” to claim
presentation
 Amadeo v. Zant (1988): racial quotas for jury
 Strickler v. Greene (1999): possibly inadvertent
withholding of info by gov. could be
o 4) Actual innocence: more likely than not that no
reasonable juror would have convicted (House v. Bell
(2006))
 Prejudice: actual and substantial disadvantage caused by errors of
constitutional dimensions
 Sykes has been extended over time to include defaults on appeal, failure to
appeal and discretionary state appeals
o Coleman v. Thompson (1991) said that failure to appeal in state postconviction
proceedings acts as procedural default
 Similar to § 2254’s exhaustion requirements for relitigation cases as well
Federal Common Law
 Erie Railroad Co. v. Tompkins (1938) announced the general rule that there was no
federal general common law
o Except in matters of federal laws, the law applied is that of the state, both written
and unwritten. No constitutional grounding for allowing federal courts to create
common law that was applicable in the states
o Before Erie, there were 5 options of FCL to be applied under § 1652 (the Rules of
Decision Act)
 State constitutional and statutory law (applied where not superseded or
preempted)
 State Common Law (the law of custom and reason)
 Federal Constitutional Law, statues and treaties

17
  Federal Common Law (e.g. interstate water boundaries, interpreting
congressional statutes, etc.)
 Judge Crafted Rules of decision to protect federal interests that
cannot be derived through interpretation.
 Binding on states and lower courts through the Supremacy Clause
 Inspired by the Constitution or Federal Statutes
 Always Subject to Congressional override
 General Common Law (Erie kills this fully)
 Fit inbetween “state law” and “federal law”, interpretations by one
type of court did not bind the other
 Swift v Tyson was the old case that allowed this, seen as having
huge uniformity problems, noncitizen bias in forum selection,
unpredictable, even possibly denied EP
 Clearfield Trust Co. v. United States (1955) clarified the role of Federal Common Law
under the Erie regime, seeming to say that Federal courts have general authority to craft
common law wherever federal issues are at stake
o Kind of an expansion of Hinderlider v. La Plata River Ditch Co. (1938)
o A narrow interpretation would be that it is legitimate when traceable to a source
of federal authority derived from statute or constitution
o Here, case dealt with Gov’t asking for reimbursement from a stolen check on
behalf of an employee, but waits over a year (beyond PA reasonable delay of
notice for forgery). Court said that this dealt with the rights of the U.S. on
commercial paper, a clearly federal issue, and that in the absence of an act of
congress the courts could fashion a rule
 Boyle v. United Technologies Corp. (1988) held that federal interests are a necessary but
not sufficient condition to displace state law with federal common law, and required a
significant conflict between an identifiable federal policy or interest and state law
o Here, suing a federal contractor that made an allegedly defective helicopter that
killed Boyle’s son, and under VA tort law he won at trial. But fed court created a
“military contractor defense” with federal common law
o Scalia said federal law governed here and created the defense with a few
qualifications
 Theories of Necessary FCL
o Broad Position: FCL power exists whenever federal interests are at stake
o Constitutional and Statutory Delegations: Constitution grants certain “enclaves”
of federal jurisdiction, such as interstate disputes and international relations,
where FCL governs. Further, Congress can create other enclaves through law
making, preemption, etc.
 Ex. Banco Nacional de Cuba v. Sabbatino (1964) seems to suggest
international relations and Customary International Law is a fully federal
enclave, like field preemption

18
  But later cases seem to favor a more “conflict” preemption
approach (Crosby v. National Foreign Trade Council (2000))
 WDAY v. Farmers Educational Coop Union (1959) found a kind of
obstacle preemption where a federal equal time law was found to preempt
state libel law in a unique factual scenario
 Constitutionally grounded enclaves include
 Admiralty, where the U.S. is a party, International Relations,
Interstate disputes
o Necessity: uniquely federal interest and a conflict with federal policy
o Misnomer: only interpretation of statutes
 Implication of Statutory Private Causes of Action through Federal Common Law
o J.I. Case Co. v. Borak (1964) was the high watermark of Federal common
lawmaking, creating a private right of action under § 14(a) of the 1934 SEC Act
o Cort v. Ash (1975) began a pullback with its qualifying test
o Cannon v. University of Chicago (1979) implied a private cause of action to
enforce Title IX (and more broadly intentional discrimination prohibitions) using
a four-factor test from Cort v. Ash (1975)
 1) Threshold question of whether the statute was enacted for the benefit of
a special class to which plaintiff belongs (determining personal nature of
right)
 2) Consideration of legislative history to see if they were meant to be
denied
 3) No private remedy will be implied if it would frustrate the underlying
purpose of the statutory scheme
 4) Ask if a private right would be inappropriate given subject matter that is
a concern for the states
 Powell dissented here, saying this was primarily a legislative function, and
the court has slowly endorsed his views
o Merrill Lynch v. Curran (1982) said that statutes passed during the Borak era may
be interpreted to imply private causes more liberally given the legal context
o Alexander v. Sandoval (2001) aggressively pulled back, declining to find a private
right of action for disparate impact claims under Title VI despite having found a
private right of action for intentional discrimination claims in Cannon
 Ridiculous distinction between § 601 (prohibition) and § 602 (regulation
authority to enforce the prohibition)
 Uses an intent, textual evidence and existence of alternative remedy test
 Also rejects Curran
o § 1983 is sometimes utilized to fill in enforcement gaps in Federal Statutes that do
not create private causes of action
 Maine v. Thiboutot (1980) allowed §1983 suits for relief from violations
of any federal law that created a private right (denial of welfare here)

19
  Since Maine though, there has been general skepticism that Congress
intends federal statutes to create rights where it fails to provide statutory
remedies (kind of a Catch 22)
 Gonzaga University v. Doe (2002) said that the implied right of
action cases should guide determination of § 1983 availability
 Further, statutes that do provide statutory remedies often have those
remedies held to be exclusive, also denying § 1983 relief
 City of Rancho Palos Verdes v. Abrams (2005)
 Thus, implied preclusion works here as well
o Important to note that Alexander and Boyle (both by Scalia) present an interesting
outcome: Federal Common Law defenses are treated much more favorably than
Federal Common Law causes of action
 Also shown in Shaw v. Delta Airlines (1981) (preliminary injunction to
enjoin state anti-pregnancy discrimination law was allowed. Premised on
it being preempted by ERISA, but no explicit cause of action for this in
ERISA)
 Armstrong v. Exceptional Child Care Center (2015) said that traditions of
equity permit anti-suit injunctions (FCL?)
 Implication of Constitutional Private Causes of Action through FCL
o The constitution refers to affirmative remedies only twice: habeas corpus and 5th
Amendment Takings compensation
 Were any common law remedies just assumed at the founding?
 Hart’s idea that substitutability makes it extremely difficult to argue that
any particular remedy is required
 Sovereign immunity complicates these cases
 Have largely outsourced constitutional violation remedies to the officer
suit context
o Ward v. Love County (1920) held that damages actions to recover coercive
extraction of money or other property (which the court had declared a
constitutional violation) were allowed under the Constitution
 SCOTUS can both create federal rights and federal remedies to recover or
enforce them
 Here, OK county coercively extracted taxes from Choctaw nations, which
they were exempt from under a 1908 SCOTUS ruling declaring a
Congressionally created tax exemption to be a property right (Congress
had tried to remove the exemption without compensation in violation of
the 5th Amendment)
 Today, Ward would be a § 1983 case and outside of § 1983 there is little
constitutionally mandated or FCL entity liability for constitutional
violations
o McKesson Corp. v. Division of ABT (1990) clarified that refund obligations come
from the Due Process Clause (mirroring 5th Amendment) and apply to the states

20
  Reich v. Collins (1994) even said these cases overcome state sovereign
immunity but was limited by Alden v. Maine (1999)
o Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971) created
an implied private cause of action for damages against federal officials who
violate constitutional rights
 Original regime had required defendants to raise state common law tort
claims that gov’t would defend with federal defenses under the applicable
provision of the Constitution
 For example, here, Bivens’s house was torn apart by DEA agents
looking for evidence (found nothing), so he could have sued for
trespass or vandalism, but DEA would defend by saying their
conduct is fine under the 4th Amendment
 Carlson v. Green (1980) clarified the limitations of Bivens and that it does
not apply when there are:
 1) Special Factors counselling hesitation, or
 2) Congress has provided an alternative remedy explicitly meant as
an equally effective substitute
 Was also the last extension of Bivens into an entirely new
Constitutional area (8th Amendment)
 Case has been hugely controversial and featured a massive retrenchment
 Bush v. Lucas (1983) found an internal civil service remedy for a
1st Amendment violation to be an adequate alternative
 Schweiker v. Chilicky (1988) said Social Security Administrative
process was all inclusive of benefit denials, adequate alt.
 Hui v. Castaneda (2010) found that the FTCA preempted claims
for indifference to medical needs while in federal custody
 Chappell v. Wallace (1983) said military courts were a special
factor, no Bivens (United States v. Stanley (1987) denied it for any
military injury or injury in course of service)
 Correctional Service Corp. v. Malesko (2001) said no Bivens
against gov’t contracting corporations that implement federal
programs
o Minneci v. Pollard (2012) said this bar prevents Bivens
against employees of those corps as well
Suits Against the Government and Its Officials; the 11th Amendment; § 1983
 Given the General Sovereign Immunity of the Federal Government, suits against
government officers and officials are the primary way that the law is enforced against the
executive through the courts
o Sovereign Immunity is a jurisdictional obstacle, not a constitutional one (except in
11th Amendment cases)
o These cases are all subject to officer immunity doctrines

21
 o United States v. Lee (1882) said very early on that making a state officer a party
to a suit does not make the state itself party to the suit when allowing the Lee
family to challenge the Government’s seizure of Arlington
o With Officer suits, when does SI matter?
 In habeas, ejectment, and actions for injunctions it has no real effect
 When money is at stake, SI may often matter
 Elliot v. Jumel (1883) said that you cannot enforce a contract to
which the government is a party by suing an officer
 Alden v. Maine (1999) implicitly limiting Reich v. Collins (1994)
to where the government has promised a refund action shows this
skepticism is still alive today
 Hans v. Louisiana (1890) held that states are not suable in federal courts by their own
citizens, even in cases involving federal questions, without their consent under the 11th
Amendment
o Began the rather odd tradition of flatly ignoring the 11th Amendment’s text, which
prevents states from being sued by a citizen of another state in federal court and
was targeted at overturning Chisholm v. Georgia
o Case involved Hans looking to recover interest from state bonds in LA, where he
lived, and alleging that a state constitutional amendment that barred paying him
was unconstitutional under the Contract Clause (arising under federal law action)
 Brennan has this (fairly convincing?) theory that the text of the 11th
Amendment indicates it was only meant to amend Art. III diversity
jurisdiction (which allowed Chisholm), and meant to leave federal
question jurisdiction over states intact
 Marshall had an even narrow reading of the 11th Amendment with a party
of record rule in Osborn that was overruled in Hans
 Ex Parte Young (1908) allowed suing state officers to enjoin allegedly unconstitutional
actions, with no 11th Amendment problem
o Railroad shareholders were trying to enjoin certain MN state legislation as
confiscatory under the 14th Amendment and sued the MN AG to stop enforcement
o Immunity/authority stripping rationale (by taking unconstitutional actions, an
official is stripped of any authority or immunity and subject to suit)
o HUGELY generative case
 In re Ayers (1887) did limit, preventing injunctive relief to compel a state
to honor a contract
 Edelman v. Jordan (1974) said it did not authorize retrospective injunctive
relief, limited to prospective relief
 Hutto v. Finney (1978) is a minor exception allowing attorney fees
to be recovered retroactively as a kind of fine
 Idaho v. Coeur d’Alene Tribe (1997) is notable for Kennedy’s
characterization of the doctrine as a balancing test of sovereign interests

22
  Armstrong v. Exceptional Child Care Center (2015) seemed to reject that
Ex Parte Young (1908) was an implied cause of action under the 14th
Amendment or the Supremacy clause, instead defining it as a judge made
remedy under Federal Common Law
 Despite General Oil v. Crain (1908) (decided same day) seeming
to say it was a 14th Amendment cause of action
o While §1983 now largely covers suits against state officers (both for damages and
injunctions), Ex Parte Young remains important for its SI stripping rationale and
for covering suits against federal officers
 Against federal officers, you have Young, Bivens, the APA, and any other
federal statutes (a 1976 SI waiver statute largely codifies Young)
 Also the FTCA, Tucker Act, etc.
 Seminole Tribe of Florida v. Florida (1996) held that Congress cannot waive state
sovereign immunity through federal law except where justified by § 5 of the 14th
Amendment
o Practically, states are exempt from unconsented suits in federal courts to enforce
their federal legal obligations, but Ex Parte Young availability means this only
bars plaintiffs from monetary or retrospective relief from the state itself
o Congress had created an elaborate negotiation process designed to force states to
allow tribes to run casinos, thinking they could abrogate state sovereign immunity
and allow tribes to sue to enforce it under Union Gas, which had said the
Commerce Clause could justify abrogating state SI
o Said Ex Parte Young could not provide a hook since an elaborate remedial
scheme had been created
o Stevens’s and Souter’s dissents restated Brennan’s Diversity Theory of the 11th
Amendment
o § 5 abrogation must still pass City of Boerne v. Flores’s congruence and
proportionality test
o Central Virginia Community College. V. Katz (2006) categorically excludes
bankruptcy cases from this rationale
o Practical effects of the Interaction of Seminole Tribe, Hans, and Ex Parte Young
 Negative injunctions against officers are nearly always available under
Young (for constitutional or statutory violations (Verizon))
 Suits against state officers for damages are done under § 1983 in their
individual capacity
 Suits against states for damages have unanticipated complexity but are
mostly barred by Seminole Tribe, only a few exceptions
 For constitutional violations, Congress could abrogate under § 5 of
the 14th but only if they pass Boerne
o First English (1987) suggested that SI might also be no
barrier to a Takings Clause case but Monterey v. Monterey
Dunes (1990) pulled back without repudiating

23
  For statutory violations, SI basically stops these in full between
Alden, Seminole Tribe, and FMC
 Suits by the United States are allowed
 Bankruptcy exception from Katz
 These effects represent a compromise that is relatively stable but that has
complexities at the fringes. Overall, it is easy to plead around sovereign
immunity in cases for prospective relief but not damages relief
 Pennhurst State School and Hospital v. Halderman (1984) held that the 11th Amendment
also barred federal courts from issuing injunctive relief from unconstitutional state laws
(11th Amendment bars suits against state officers on state law claims in federal court)
o Ended pendent jurisdiction over state law claims against state officials
o Requires splitting state law claims and federal law claim if an injunction is sought
in federal court
 Alden v. Maine (1999) held that you cannot sue a state in state court under federal law
unless they waive immunity, based on common law reasoning about the constitutional
design (again, only dealing with damages, Ex Parte Young and injunctions not affected
o Alden here trying to sue the state of ME for violations of FLSA overtime
requirements, had been thrown out of federal court under Seminole Tribe
o Dissent fairly persuasively argued that the 11th Amendment did not address state
courts at all, instead says majority is really making a 10th Amendment argument
on a natural law theory (also what about Testa v. Katt?)
o Federal Maritime Commission v. South Carolina State Ports Authority (2002)
extended Alden to bar federal administrative agencies from brining a private
party’s complaint against an unconsenting state
o Fallon sees Alden as having marginal costs to plaintiffs and marginal benefits to
states, and as part of the Federalism Revolution between 1995-2003, perhaps the
biggest part of it since it is relatively cost free (equilibration)
 Sossamon v. Texas (2011) upheld Congressional authority to condition federal funds on
state waivers of sovereign immunity as a long as the waivers meet a clear statement
standard
 FTB v. Hyatt (2019) said that states cannot sue other states in their own courts, overruling
Nevada v. Hall (1974)
 § 1983 Suits and Official Immunities
o Monroe v. Pape (1967) started a rights revolution by finding that § 1983
authorized damages suits against state officials for constitutional or federal law
violations
 Was meant to address any deprivations or rights violations done by
officials acting “under the color of law,” which includes abuses of power
 Liability requires
 An action under color of law
 Conduct that deprived a person of rights, privileges and immunities
secured by the Constitution or laws of the United States

24
  Seems to interpret “under color of law” to be coextensive with the state
action requirement
 Tenney v. Brandhove (1951) had already allowed official immunity
doctrines or defenses in § 1983, was not addressed
o A long line of cases caused a long line of cases resulted clarifying how cities and
counties could be liable under §1983
 Monell v. Dept. of Social Services (1978) held that local governments can
be sued under § 1983 as “persons” but not for respondeat superior liability
or private illegality
 Instead, liability must be based on some “official policy” of the
municipality
 Owen v. City of Independence (1980) held that there is no Qualified
Immunity for cities under Monell
 City of Newport v. Fact Concerts, Inc. (1981) held that municipalities
could not be assessed punitive damages under § 1983
 Pembaur v. City of Cincinnati (1986) said that a single decision of a high
official is enough to count as an “official policy”
 City of St. Louis v. Prapotnik (1988) said state law determined who
was a poilicymaking high official with a “final authority” test
 City of Canton v. Harris (1989) said that a failure to train could lead to §
1983 liability only where it amounts to deliberate indifference
 Will v. Michigan Dept. of State Police (1989) held that states are not
“persons” that can be sued under § 1983
o Parratt v. Taylor (1981) held that state law can provide postdeprivation remedies
that satisfy due process and “cure” § 1983 actions based on due process violations
 No procedural due process violation where
 The challenged action is random and unauthorized (negligence)
 Predeprivation process that would cure is not feasible
 Adequate state remedies exist, gauged in light of official immunity
 Here, prisoner claims prison officials negligently lost his property in
violation of his due process rights under the 14th Amendment
 Blackmun concurred and said this case only applied to deprivations of
property, not life or liberty
 Significant limitations have been layered on since
 Hudson v. Palmer (1984) extended Parratt to intentional
deprivations that were claimed to violate the Due Process Clause
 Daniels v. Williams (1986) partially overruled Parratt to say that
negligent deprivations actually do not violate the DP Clause at all
(endorsing Powell’s concurrence in judgment only)
 Zinerman v. Burch (1990) held that Parratt and Hudson both
applied to deprivations of liberty as well

25
 o But only in deprivations caused by a violation of
procedural due process, since the claimed violation is not
necessarily the action but instead that the action was taken
without certain procedural safeguards
 With these limitations, the inquiry is best understood as whether the
conduct was done pursuant to established state procedures versus random,
unauthorized conduct
 Parratt’s does not apply to cases where state procedures are
constitutionally valid, and
o Deviations are predictable and
o More process is feasible
o Maine v. Thiboutot (1980) held that §1983 can be used to secure any federal right
against state action, but has been limited by cases like Gonzaga v. Doe and
judicial skepticism in implying causes of action (discussed above under FCL)
o Allen v. McCurry (1980) held that state court rulings on § 1983 claims can have
preclusive effects on federal courts, as a FCL doctrine based on § 1738 (Full Faith
and Credit Statute)
 Collateral estoppel already did not apply where the party against whom an
earlier decision was asserted did not have a full and fair opportunity to
litigate the issue in the first instance
 § 1983 did not displace § 1738 or common law preclusion doctrine
 § 1738 requires that judgments of state courts be given the “same
full faith and credit in every court within the U.S. as they have be
law or usage” in the sate court from which they are taken
 Basically, McCurry files a §1983 action for damages against officers that
tore his home apart (had entered without a warrant and the state judge had
excluded all evidence not in plain view)
 State judge had also though already said it didn’t violate other
rights.
 If McCurry had just appealed this 4th Amendment decision then a
federal court could have heard it, but he instead filed a separate §
1983 action outside of his criminal case
 Extended in Kremer v. Chemical Constr. Corp. (1982) which held that §
1738 commanded a preclusive effect of state court resolutions of federal
questions by federal courts
 Federal courts must give the same preclusive effect to a state court
resolution that the courts of the rendering state would give
 Migra v. Warren City School Dist. (1984) said that § 1738 also
required claim preclusion to the same extent
 University of Tennessee v. Elliott (1986) held that certain state
administrative proceedings can have preclusive effects in federal
courts as well, to the same extent they do in state courts

26
 o Patsy v. Board of Regents of the State of Florida (1982) held that exhaustion of
state administrative remedies is not required in § 1983 actions
o Official immunities are based on function and are entirely Federal Common Law
 Executive Functions get Qualified Immunity
 Judicial Prosecutorial, and legislative functions get Absolute Immunity
 Judges can be held liable if they act fully without jurisdiction or if
they are charged for an action done when not performing a judicial
act (hiring, firing, etc.)
o Harlow v. Fitzgerald (1982) helped fully establish an Objective Qualified
Immunity for government officials that protects them from liability in § 1983
cases
 Only defeated where an official objectively knew or should have known
the action taken would violate clearly established constitutional rights
 Case also abandoned a subjectively inquiry for QI premised on the
malicious intent of the official
 Dealing with the claimed immunity of certain Nixon aides in the fallout of
the Watergate scandal
 The definition of “clearly established” has been controversial
 Camreta v. Greene (2011) seemed to say that Courts of Appeals
can do this but District Courts do not necessarily
 Ashcroft v. Al-Kidd (2011): “every reasonable official” should
know of the law in order to make it clearly established
 Escondido v. Emmons (2019) said lower courts can assume rights
without deciding if they are clearly established (i.e. can avoid
establishing new rights when dismissing cases)
 Anderson v. Creighton (1987) significantly modified the test, saying QI
turns on how a general right would have been applied in a specific factual
situation
 1) Does the violation occur because of the officer’s unreasonable
conduct?
 2) Then determine whether it was reasonable for the officer to have
been unaware of the legal significance of his conduct
 Designates a focus on how the officer perceives the situation
Non-Statutory Limitations of the Exercise of District Court Jurisdiction; Abstention
 Concurrent federal and state jurisdiction is the norm in federal question and diversity
cases, and normally a plaintiff with a federal claim does not need to go to state court first
o Prentis v. Atlantic Coast Line Co. (1908) said that a plaintiff may not sue in
federal court for redress of allegedly unlawful state action without first invoking
or exhausting available state administrative remedies
o Laid the groundwork for modern Abstention doctrine
o But note that Patsy v. Board of Regents of the State of Florida (1982) held that
exhaustion of state administrative remedies is not required in § 1983 actions

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 Railroad Commission of Texas v. Pullman Co. (1941) is the foundation of almost all
modern Abstention doctrine, holding that federal courts will abstain from ruling where a
state law ruling on an unsettled state law fully decides the need or presence of a federal
constitutional question, and demanding remand to state courts to decide
o Today, Pennhurst would fully prevent the court from enjoining the order in
Pullman (TX RR Comm had issued an order functionally segregating sleeping
cars on trains, case revolved around meaning of “discrimination” in TX law)
 Pullman is still relevant in suits against municipalities or where there is a
state law predicate issue
 Post-Pennhurst, plaintiffs have to either omit their state claim from federal
court or bifurcate their claims (but courts might still abstain under Askew
v. Hargrave (1971))
o Requires
 A Hard Constitutional issue
 Potentially avoidable
 Difficult/sensitive state issue or an important state function (a big cost of
error if the fed court gets it wrong)
o Jurisdiction is discretionary, Rights are equilibrated to possibly advance further
if necessary and Remedies are contingent on equitable discretion
 When abstaining under Pullman, courts tend to still retain jurisdiction,
they just stay the proceedings
 Because of this, most states have procedures allowing quick certification
of state law questions that federal courts abstain on
 Plaintiffs can reserve federal issues in presenting their claims to state
courts in order to avoid McCurry preclusion as long as the claims are
distinct
o Quackenbush v. Allstate Ins. Co. (1996) held that Pullman abstention only
operates where the relief being sought is equitable or otherwise discretionary, at
least where a court would dismiss or remand (as opposed to stay or postpone)
 i.e. only dismiss or remand in cases with discretionary remedies on an
abstention rationale, but can always stay no matter the remedy sought
o Harrison v. NAACP (1959) said Pullman operates normally in the §1983 context
 Younger v. Harris (1971) is the other major strain of Abstention, holding that federal
courts will not issue injunctive relief from pending state criminal prosecutions absent
extraordinary circumstances likely to cause great and immediate irreparable injury
o Harris was charged under an anti-communism law and sought to enjoin his
prosecution as unconstitutional under the 1st and 14th amendments
 Harris must present his constitutional claim as a defense at his criminal
trial first
o Concerns about comity with state criminal courts
o Explicit exceptions include
 Bad faith and harassment, extraordinary circumstances

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  Patent and flagrant unconstitutionality (this is mostly dead after Trainor v.
Hernandez)
o Ex Parte Young was not a concern, since this was a pending prosecution for past
conduct, not a future prosecution for future conduct believed protected
 However, many plaintiffs in Younger that had not yet been charged were
still tossed for lack of standing
o Samuels v. Mackell (1971) said that Younger abstention applies to sought
declaratory relief against a pending state criminal prosecution
o Ohio Bureau of Employment Servs. v. Hodary (1977) implied that Younger is
permissive and discretionary, not mandated
o Steffel v. Thompson (1974) said that Younger does not apply to declaratory relief
cases involving future prosecutions
 Vietnam war protestors handbilling and arrested for trespass, but those
that were not arrested sued for declaratory judgment that their 1st
Amendment rights were being violated
 No pending proceeding meant that the concerns of equity, comity and
federalism did not weigh too heavily
 Declaratory judgments were seen as less intrusive than injunctions, since
state courts can technically override then with narrowing interpretations
 Note that outright defying a declaratory injunction could lead to an
injunction, a kind of work around of Younger
 Practical takeaway is that pendent prosecution status is nearly dispositive
 Steffel and Younger represent their own compromise between federalism
and § 1983 principles. If you have pre-prosecution standing, federal courts
can interfere
o Hicks v. Miranda (1975) held that Younger abstention applies even where state
criminal proceedings are begun against federal plaintiffs after the complaint is
filed as long as no proceedings on the merits have taken place
 Case involved police seizing 4 copies of Deep Throat from a porn theater,
and the theater owners suing to enjoin a state obscenity statute. While their
federal case is pending, the state filed charges against them
 This and Steffel really make Younger doctrine a race to the courthouse
 Doran v. Salem Inn, Inc. (1975) clarified that preliminary injunctions
against state statutes can still be issued if a party skirts Younger, satisfies
Steffel and meets the relief requirements, but that prosecutors can “reverse
remove” the case before the injunction issues and after filing if they hold a
proceeding on the merits
o Huffman v. Pursue Ltd. (1975) held that Younger bars federal relief when the state
is a party to a noncriminal action that is in aid of and closely related to criminal
statutes or judgments
 Trainor v. Hernandez (1977) seemed to extend Younger to all civil
enforcement actions brought by the state

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 o NOPSI v. Council of City of New Orleans (1989) held that Younger does not
require abstention in deference to a state judicial proceeding reviewing legislative
or executive action
 Later clarified in Sprint Communications Inc. v. Jacobs (2013), which
held that Younger was limited to
 Criminal prosecutions
 Civil enforcement proceedings brought by the state
 Civil proceedings involving certain order uniquely in furtherance
of the state courts’ ability to perform their judicial functions
 Middlesex County Ethics Comm. v. Garden State Bar Ass’n (1982) said
that state administrative proceedings of a judicial nature can command
Younger abstention and fit within Sprint categories, as long as it is an
 Ongoing state judicial proceeding that
 Implicates important state interests and
 Provides an adequate opportunity to raise federal challenges in
state court
 Colorado River Water Conservation District v. United States (1976) introduced another
type of abstention involving parallel federal proceedings
o Federal courts should abstain from hearing cases parallel to state cases where
 The state court has assumed jurisdiction over property at issue
 The state court is more convenient than the federal forum
 Abstaining would avoid piecemeal litigation
 The state suit was filed first
o Does not apply to any declaratory judgment actions (Wilton v. Seven Falls Co.
(1995))
o Refusals to stay or dismiss actions are not appealable
Congressional Regulation of Federal Jurisdiction
 4 Sources of Congressional Power to Regulate Jurisdiction
o Art. III § 1: Allows lower federal courts to be established
o Art. III § 2, cl.2: Appellate jurisdiction of SCOTUS is subject to Congressional
exceptions and regulations (cl.1 contains the base judicial power)
o Necessary and Proper Clause: allows limiting state court jurisdiction over federal
law
o Art. I: Creation of legislative courts
 § 1331 (1875) was the first grant of general federal question jurisdiction
 Sheldon v. Sill (1850) held that Congress is not required to enlarge federal jurisdiction to
its maximum point when it the court declined to hear a diversity case where diversity
only existed due to the assignment of property rights
o The only way for a jurisdictional statute to conflict with the Constitution is if it
grants power not contained within Article III
o Madisonian compromise seems to contemplate the lack of jurisdiction in many
cases

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 o Lauf v. Shinner (1938) up-held the Norris-LaGuardia Act’s bar on labor
injunctions (jurisdictional stripping a specific remedy)
 Ex Parte McCardle (1869) is a kind of high water mark of Congressional control of
appellate jurisdiction, where SCOTUS upheld the 1867 stripping of their jurisdiction over
challenges to the Military Reconstruction Act
o McCardle had challenged the whole act after he was arrested for editorials he
printed in MS, were fears SCOTUS would strike it down
o Court famously declared that they would “not inquire into legislative motive,” but
Fallon sees this as a bit dated given modern DP, EP and 14th Amend stuff
 Especially after Klein, which held that a withdrawal of jurisdiction cannot
be a “means to a forbidden end”
o Seems to suggest full Congressional control over appellate jurisdiction
 Hart thought that Congress could control it up to the point where they
began to interfere with SCOTUS’s essential character
 Story thought that as long as a case was within either the lower federal
court’s jurisdiction or SCOTUS’s appellate jurisdiction over state court
decisions that Art. III was satisfied
 Amer built on this a little and believes that federal questions,
foreign cases, and admiralty cases cannot be removed given Art.
III’s use of the word “all” before these kinds
o McCardle’s extreme cases has never been tested, i.e. Congress has never
attempted to remove all jurisdiction over a class of claims
 Have always provided for some alternative avenue of revue when
stripping appellate jurisdiction. For example, McCardle could have filed
an original habeas petition
 Felker v. Turpin (1996) upheld AEDPA on the grounds that SCOTUS still
retained original habeas jurisdiction despite the limits it placed on habeas
appellate jurisdiction
 Normally, courts will strain to read statutes to allow review of
constitutional questions
 Fallon says the tradition reflects two remedial principles
 Individually effective redress for all violations of constitutional
rights is strong but sometimes outweighed by practical imperatives
 System of constitutional remedies adequate to keep gov’t generally
within the bounds of the law
 An external limit? Congress cannot directly dictate the outcome of a case
but can change the law with the intent and effect of determining who wins
 Battaglia v. General Motors Corp. (2nd Cir. 1948) held that the 5th Amendment imposed
an external limit on Article III jurisdiction stripping, in that it cannot be used to deprive
citizens of life, liberty or property without due process
o Here, a SCOTUS interpretation of the FLSA led to massive liability for unpaid
wages, and Congress passed the Portal to Portal Act to amend the FLSA and

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 stripped jurisdiction for any court to hear a case basing liability on that
interpretation
o The jurisdiction stripping was upheld here though, since if the right to the wages
was statutory it could be stripped by statute (before final judgment) and if they
were contractual then Congress could make them unenforceable
o This case seems to imply that jurisdiction must always exist for constitutionally
necessary remedies
 Congress’s control over jurisdiction in federal courts can be very granular
o Lockerty v. Phillips (1943) dealt with special price control courts and held that
congress could prescribe exactly what claims they could hear, issues they could
and could not consider, and remedies they could grant
o South Carolina v. Katzenbach (1966) held that Congress could limit certain
actions in the VRA exclusively to the D.C. Circuit
o Yakus v. United States (1944) allowed Congress to prevent courts from hearing
challenges to an Act or regulation’s validity as a defense in a criminal case
 But did have specialized Art. III courts to hear these challenges
o Fallon thinks it is much less granular over state court jurisdiction because such
actions are justified under the Necessary and Proper Clause, not Art. III
 Ex. does not believe that Congress could remove the power of federal and
state courts to issue injunctions
o Remedial concerns are big here too, Fallon thinks that some injunctions are
constitutionally necessary and that is much rarer for damages to be so
 Ongoing Deprivations of rights are not tolerable, and it seems the courts
will not let Congress use jurisdiction stripping to endorse them
 Congressional Control Over Legislative Courts and Agency Jurisdiction
o Crowell v. Benson (1932) dealt with Congressional assignment of jurisdiction to
Agencies, and held that Article III courts must be able to determine “jurisdictional
facts” independently (de novo) but could be bound by the determinations of other
facts by agencies
 Here, Crowell gave an award against Benson in a Longshoreman’s act
compensation case. The Court claimed jurisdiction to determine whether
the injury had occurred on navigable waters and if an employment
relationship was present, since jurisdiction for the statutory scheme’s
operation was conditioned on these facts
 Underlying act said that an agency determined findings of fact and
determinations of law, but that District Court could review the
determinations of law
 Facts get “supported by evidence review”
 Today, under Chevron deference and other admin law doctrine,
Courts are rarely doing any de novo review of law, but technically
must have power to review constitutional questions
 Idea rests on a fictional Adjunct Theory

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  Also held that Congress can establish legislative courts to determine
various matters which do not require judicial determination but which are
susceptible to it, so called matters of Public Rights (idea from Murray’s
Lessee)
 Case here was held to be a Private Right but nothing required that
determinations of facts be done by Art. III judges
 Is this saying that Congress gets to determine who decides
statutory rights? Their right, their call
o Probably an overstatement
 Public Rights
o Claims against the U.S. for money, land or things
o Disputes arising from coercive government conduct outside
of the criminal law
o Immigration cases (seen as executive and legislative
plenary power)
o Rationale: Sovereign immunity can bar these anyway, these
cases often lack a clear line between adjudication and
enforcement
 Private Rights
o One private individual against another, or criminal cases
o Objections to administrative adjudications of these come
from the Due Process Clause, 7th Amendment right to jury
trial, and Article III’s assurance of political independence
o Stern v. Marshall (2011) held that Bankruptcy Courts (Art. I) lacked
constitutional authority to enter final judgments on state law counterclaims that re
not resolved in the process of ruling on a creditor’s proof of claim
 Suggests a difference in the roles of legislative courts and agencies even
though they found this to be a Private Right case (state law counterclaim
against a 3rd Party creditor, not the estate)
 Ex. Agencies can enforce a federal statute in a suit by one party
against another (Crowell) but Special Legislative Courts cannot
(Stern) under Adjunct theory
 Squaring this issue? Formalism approaches in legislative court
cases with Pragmatism in agency cases
 Court had previously said that Bankruptcy Courts could not resolve state
law contract claims (Northern Pipeline plurality)
 IF a statutory right is not closely intertwined with a federal regulatory
program, and if that right neither belongs to nor exists against the federal
government, then it must be adjudicated by an Article III court (new
definition of Private rights?)
 Wellness International Network, Ltd. V. Sharif (2015) allowed Bankruptcy
Courts to adjudicate Stern claims when both parties consent to it

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  Breyer dissent here said the majority was overstating dictum in Murray’s
Lessee, Northern Pipeline and understating Crowell to find Bankruptcy
Courts to be nonadjunct
o Summary
 Legislative courts are permissible in historical exception cases and Public
Rights cases
 Legislative courts are presumptively impermissible outside of Public
Rights cases unless the parties consent
 Agency adjudication is permissible in public rights cases and private rights
cases under agency statutory purview as long as appellate review in an
Art. III court is provided
 Agency adjudication of state law claims is also alright if there are
 No structural issues
 Waiver and consent by parties
 Congressional Control over Habeas Jurisdiction
o Habeas is considered a necessary Constitution remedy at least for executive
detention, even though Ex Parte Bollman (1807) suggested a statute was
necessary to grant this jurisdiction
 INS v. St. Cyr (2001) said that it is guaranteed to be at least as broad as it
was in 1789
o Issues in Habeas Challenges
 Jurisdiction: The court must have statutory (§2241) or constitutional
(Boumediene) jurisdiction
 Merits/Rights: three categories
 Does the custodian have ostensible or lawful authority to detain?
 Does the Petitioner have substantive rights that defeat detention
authority through correctly applied statutes?
 Are procedures adequate (in fact finding and elsewhere)?
 Remedies: Include release and directives to remedy defects
 Schlesinger v. Councilman (1975) said that those under court
martial detention must exhaust military system remedies before
getting into federal court (a kind of military abstention)
o Hamden v. Rumsfeld (2006) said that this does not apply to
military tribunals
 Historically, there is a pattern of recognizing rights when threats seem low
but Court is more disposed to issue limitations in response to exigencies
 Compare Milligan and Quirin or Hamdi and Boumediene
 Milligan, after the Civil War, had said that where the normal
criminal courts are open, they must be used for what they are
intended (as opposed to military courts), and that habeas can
enforce this right

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o Burns v. Wilson (1953) and Toth v. Quarles (1955) held that habeas jurisdiction in
the D.C. Circuit existed for citizens held abroad
o Rumsfeld v. Padilla (2004) held that § 2241 jurisdiction required courts to have
jurisdiction over the custodian to hear a habeas petition
 § 2255 and § 2241(d) say that habeas motions should be filed in
sentencing court if held federally, or where one is convicted/confined if
held by state
 Braden v. 30th Judicial Cir. Ct. (1973) recognized jurisdiction for District
Courts to entertain sort of diversity habeas petitions
 Here, an AL prisoner filed a habeas petition in KY District Court
to challenge a delay in a separate trial he was to be held for in KY
o Rasul v. Bush (2004) held that D.C. District Court had jurisdiction over habeas
petitions filed by Gitmo detainees
o Hamdi v. Rumsfeld (2004) held that American citizens seized as enemy
combatants and detained on American soil had a due process right to challenge
their designation as enemy combatants, but not necessarily in habeas proceedings
 Hamdi was disputing his EC status after being seized in Afghanistan, his
father filed a habeas petition claiming he was doing relief work there
 Also said the 2001 AUMF allowed the detention of citizens as enemy
combatants
 Due process required that Hamdi receive fair notice of the factual basis for
his classification and a chance to rebut it before a neutral decisionmaker as
long as his detention extended beyond the initial battlefield capture
 Scalia and Stevens dissented, feeling that Suspension of habeas was
necessary to hold Hamdi given that he is a citizen
 O’Connor’s opinion gives immense weight to practical considerations and
seems laser calculated to avoid provoking Congress into suspending
habeas while still allowing the executive to pursue its goals
o Boumediene v. Bush (2008) was a landmark case that partially overruled Hamdi,
and is the only time the court has struck down a Congressional jurisdiction
stripping statute
 Following Hamdi, Congress and the Defense Dept. established Combatant
Status Review Tribunals to provide the process they believed Hamdi
required, while simultaneously stripping habeas jurisdiction and
availability over the CRST determinations (instead funneled them all into
limited review of “standards and procedures” in the D.C. Circuit)
 First, the Court held that the CRSTs were an inadequate substitute for
habeas corpus, given that they carried a presumption for the gov’t, no right
to counsel, no limit on hearsay evidence, no independent fact finding, no
ability to order release
 § 7 (habeas stripping) was held unconstitutional, but the CSRTs
were upheld, with courts given guidance to only grant habeas

35
 review after they made an initial determination or where there was
undue delay
 Second, the Court held that non-citizens held in Guantanamo Bay could
avail themselves of habeas remedies
 3 factors were considered relevant in determining the reach of the
Suspension Clause and its guarantee of habeas
o 1) Citizenship and status of the detainee and the adequacy
of the process through which the determination was made
o 2) Nature of the sites of apprehension and detention
o 3) Practical obstacles inherent in resolving the prisoner’s
entitlement to the writ
 De jure sovereignty is not the touchstone of habeas jurisdiction
 Insular Cases had declared that the constitution applied in full in
incorporated territories destined for statehood but only in part in
unincorporated territories, where it guaranteed certain fundamental
personal rights
 Scalia’s dissent said that aliens abroad had no habeas rights under
Johnson v. Eisentrager (1950) and that this was an inflation of jurisdiction
 Post Boumediene habeas cases sort of killed its generative significance
 Al Maqaleh v. Gates (D.C. Cir. 2010) held that habeas was not
available to detainees held in Afghanistan
 Thuraissigiam (2020) denied habeas to a noncitizen seized within
25 yards of the border (on U.S. side)
 Agency for Int. Development v. Alliance for Open Society (2020)
held that foreign citizens outside of U.S. Territory possess no
constitutional rights

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