Federal Courts - Siegel - Fall 2005 - GWU Law

Siegel Fed Cts F2005
Federal Courts Outline- Key Themes of the Class
I. Key themes:
a. Ubi jus, ibi remedium
b. Limited Subject matter jurisdiction of federal courts
c. Fedreal courts only act in cases and controversies
d. Interrelationship of fed/state courts
II. Private v. Public Rights
a. Private Rights
i. Marbury- courts can interpret the law once it has a proper case
ii. No advisory opinions
iii. Finality
iv. Standing – if you haven’t suffered the right injury in the right way, courts willing to let
unconstitutional action by govt stand.
b. Public Rights view
III. Is our current standing doctrine appropriate?
a. Do I like Fletcher view (different standing tests)?
IV. Thoughts on Justiciability Doctrines
a. Pros v. Cons
i. Pro-
1. faithful to constitution;
2. ensures presentation of issue in vigourous adversarial litigation;
3. maintains separation of powers;
4. Bickel’s passive virtues- gives courts the ability to put off dealing with highly
charged social issues until it thinks the country is ready to deal with it
a. Avoids societal misinterpretation of court not holding law unconstitutional
as the court’s imprimatur of law at issue
ii. Con-
1. society has changed, govt more ingtrusive
2. 12b6 motions do the work of justiciability doctrine- need to state a legal claim,
don’t need to used standing and mootness doctrines to say someone hasn’t made a
legal cliam
3. Why should judiciary decide when society is ready to deal with touchy subjects?
V. Remedy for every right?
a. PQD suggests not- violation of constitutional constraint won’t be redressed by the courts
VI. SIEGEL’S FINAL THOUGHTS- Can a federal court grant you a remedy for every right violation?
a. Private vs public right view
b. Should fed courts make federal common law or just enforce substantive law made by congress
and the states?
c. Should courts enforce sovereign immunity or play more creative role to provide remedies for
official wrongdoing?
d. Should fed courts be the primary protectors of federal rights or assume a secondary role?
e.
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Part I- Nature of the Judicial Function
I. Principle of Judicial Review and Its Justification

a. Marbury v. Madison (USSC 1803 Marshall)- Establishes principle of judicial review
i. Factual predicate – Marbury et al sued Secretary of State on a writ of mandamus from the
Supreme Court in order to force Madison to deliver their commissions for justice of the
peace positions in DC. Madison holding them up b/c commissions had been made by the
Federalists right as they were going out of power. Court established that Marbury clearly had
a right to his commission b/c Madison’s role in delivering it was no longer one of executive
discretion.
ii. Two fundamental Concepts
1. Ubi jus, ibi remedium- Where there is a right, there is a remedy – but that remedy
may not always be judicial in nature.
2. Private Rights view of federal courts’ function-
a. Federal courts exists to decide the cases/rights of individuals
b. Once a case is properly before the federal court, then the court must answer all
questions, including the constitutional questions, that are necessary to decide
the case.
iii. Justification for these principles
1. Right => Remedy (writ of mandamus from Supreme Court)
a. Source of this idea:
i. English Common Law- Even the English King could be sued, so our
executive should be amenable to suit.
ii. “Government of laws, not men”- “The very essence of civil liberty
certainly consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury.” But
remember that remedies can be provided outside of the judicial
system- political remedies
b. Writ of mandamus proper here- Marbury had a VESTED LEGAL RIGHT to
the commission – up to the court to decide if it can give him a remedy. courts
can tell executive what to do despite separation of powers concerns if an
individual within the executive branch is directed by law to perform an action
and he does not. Here, Madison had no political discretion not to deliver the
commissions- once the commission was granted (discretionary function), the
law mandated that the Secretary of State must deliver it.
2. Court’s interpretation of Constitution to decide that Supreme Court cannot issue the
writ of mandamus
a. §13 Judiciary Act of 1789 unconstitutional b/c it unlawfully enlarges the
original jurisdiction of the USSC; question whether Marshall intentionally
misread the statute in order to hold it unconstitutional.
b. Constitutiton trumps- Congressional action signed by President void if it
conflicts with the Constitution b/c the written constitution represents a
delegation of sovereignty from the people and the constitution is fundamental
regulatory law.
i. Bickel comment- two different questions – 1) Whether act is
unconstitutional v. 2) whether constitution is superior to ordinary
statute?
3. Rationale for judicial review principle- judiciary is supreme in exposition of
constitution (“It is emphatically the province and duty of the judicial department to
say what the law is”) and statutes
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a. No textual assignment of judicial review- some notes from framing sessions
indicates judicial review intended, but not in the text.
b. Structural- judiciary uninvolved in drafting/executing laws.
c. Business of judiciary is to decide cases, and “those who apply the rule to
particular cases must of necessity expand and interpret the rule” – If court
properly has a case before it, then it gets to interpret the Constitution if it
needs to in order to resolve the case.
II. Initial Implications of “Private Rights”-“Public Rights” Dichotomy
a. Private v. Public Rights Concept
Private Rights View (Usually Dominant) Public Rights View
Doctrine  Federal courts exiss to decide the rights  Federal courts exist to decide questions of
of individuals, not to ensure that the law and the right to decide cases flows from
government behaves. Once a court that purpose.
properly has a case, however, it may
interpret the law, tell government how
to behave, incident to its ability to
vindicate the person’s individual rights.
Marbury  Marbury Private Right- courts in the  Marbury public right- Province of court to
business of hearing cases; here, say what the law is, cases provide a vehicle
MArbury had a right to his commission, for stating what the law is.
but in interpreting the law and declaring
it unconsittuitonal, USSC determined
that his remedy was not mandamus from
USSC.
Case/Rule  Harper v. VA Dept of Taxation –  Sup. Ct. Rule 10- SC only grants cert to
Support deciding a case mandates applying the cases it thinks are specifically compelling-
rule of law to something that happened circuit splits, fed ct appeals decide federal
in the past. question in conflict with state supreme court,
Circuit court goes off in radical direction.
 Cooper v. Aaron (USSC 1958 )
Implications  Court’s job not to interpret the  Judiciary a little more equal than other
Constitution. branches
 No prospective/advisory opinions; must
have a CASE for court to act upon.
b. Retroactivity in Judicial Decisionmaking

i. Harper v. VA Dept of Taxation (USSC 1993 Thomas)- Where Court applies a new rule of
federal law to parties before it, rule must be given full retroactive effect in all cases still open
on direct review b/c discretionary application unfair and courts only act retroactively- for
court to decide rule and apply in only prospectively (not to the parties in the case before it)
means the court is acting in a legislative function.
1. O’Connor dissent- ASK KATE- thinks pure prospectivity should be allowed based
on Chevron Oil test- don’t apply decision to parties in the case or to ANY case where
facts predate the decision-
c. Supreme Court’s Certiorari Power-
i. USSC Rule 10- Implicit support of public rights model b/c Court doesn’t take every case that
comes along, just the important cases that need to resolve key questions of law.
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d. Constitutional Interpretation Outside of the Courts
i. Cooper v. Aaron (USSC 1958)- Striking statement that Supreme Court’s interpretation of the
Constitution is superior to other branches of the government and is made binding on the
states by action of the Supremacy Clause
ii. Pres. Jackson’s veto message (1832)- USSC NOT supreme in interpreting the Constitution
because every public officer who takes the oath to support the Constitution swears to support
it as he understands it. Give equal weight to Congressional, Executive, and Judiciary
interpretations.
iii. Pres. Lincoln’s Address – Concerns about unelected judges interpreting the COnstitution
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Part II – Justiciability
I. Basics of Justiciability- What makes a conflict into a case?

a. Private rights view mandates that you if you want to challenge a law, need to find yourself a test
case, which requires getting the right ∏, bringing it at the right time, and presenting an issue that the
court feels it can handle
II. Advisory Opinions
a. Fundamental Principle- US federal courts do NOT issue advisory opinions
i. Correspondence of the Justices (1793)- USSC tells Washington that it cannot give him an
opinion on whether the Executive can do a bunch of things with France.
b. Rationale- Remains a bit mysterious why US courts cannot issue advisory opinions.
i. Doctrinal- Article III rationale Constitution/Text – Art III, § 2 – “ The judicial Power shall
extend to all CASES …and Controversies” This doesn’t seem to be a good argument-
1. Counterarguments for why it’s not an Article III principle- ASK KATE
a. McNaghten’s Case (England 1843)- Court rendered a completely advisory
opinion; nothing inherent in the word case that means only actual adversarial
opinion. Judges perfectly able to render a decision on hypothetical case
b. Flast v. Cohen- “oldest and most consistent thread in the federal law of
justiciability is that the federal courts will not give advisory opinions” No
advisory opinions b/c they are inconsisten with Art III judicial function.
ii. Instrumental- Need for adversarial presentation of the arguments-
1. Adversarial proceeding will bring out facts that bear on the judge’s decision that a
judge may not be albe to fully do by himself b/c of lack of knowledge and time.
2. BUT, counsel can also argue hypothetical cases just as well as actual cases. So, if we
can get around the instrumental argument, just leaves us with the doctrinal arguments,
which don’t seem particularly well-reasoned.
iii. Public Policy concerns about costs/benefits of advisory opinions
Pro- Advisory opinion Anti-advisory opinion
 Efficiency  Instrumental Reasons- courts are busy with real
 Prevents govt from acting unconstitutionally in the cases, need evidence to decide empirical questions
first place  Courts should act last after the exec and the leg
 Removes the judicial conflict of interest- decide branches.
something ahead of time, rather than in the midst
of a heated political crisis (Bush v. Gore)
III. Finality of Judicial Rulings

a. Fundamental Principle- Decision of the court must be FINAL, not subject to revision by the
Executive or Legislature, otherwise the court hasn’t exercised its judicial function. Judicial
decision definitively decides an issue, even though other questions may be left open for
executive review.
i. Consequence of Private Rights view
b. Hayburn’s Case (USSC 1792) – Congress authorized COURTS to certify an applicant for a military
pension, but the Secretary of War (Exec) had the ability to deny the applicant a pension if he thought
the court messed up.
i. Circuit courts write to Washington (advisory opinion much?)- court cannot exercise its
judicial function under this Act because the Exec’s discretion to reject the court’s findings
renders it merely an advisory opinion.
ii. Note 2- Gordon v. US- Basically, if Congress decides not pay out your judgment, you can
not vote for your congressman- not sure if he’s getting at the political remedy here. Oh, I
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think there’s a difference btn the executive saying that the court did something wrong and
we’re not going to certify this, and Congress just saying we accept the certification, we’re
just not going to pay. Same thing for West Point hypot-
c. Recent Applications of Hayburn’s Case
i. Key point- Article III judges may sit as Article II commissioners and have their decisions
susceptible to executive revision as long as they are sitting in their individual capacity as a
JUDGE and not as a COURT. Also, Congress cannot compel any judge to become a
commissioner, must be voluntary.
ii. Extradition Statutes- 18 USC § 3184- “any justice or judge of the US may, issue his warrant
for the apprehension of the person so charged; he shall certify it to the Secretary of State”
Secretary has sole discretion to decie whether to sign off on the extradition warrant.
1. LoBue v. Christopher (DDC 1995 Lamberth)- § 3184 unconstitutional b/c allows
executive to reverse the legal conclusions that the judge made. DC Circuit reverse on
other grounds
2. LoDuca v. US (CA2 1996)- §3184 is fine because it’s directed at judges in their
individual capacity acting as commissioner/administrator, not as an officer of the
court. Also, the statute is discretionary, doesn’t force judge to become a
commissioner. The Incompatibility Clause (Art I, § 6) only bars members of
congress form serving in any other office, not judges.
IV. Standing to Sue
a. Foundations of Standing Doctrine
i. Frothingham v. Mellon (USSC 1923 Sutherland) – Courts exist to decide actual cases, not
to enforce the Constitution, even if that means leaving an unconstitutional statute or
government action in place. ∏ sued alleging the Maternity Act (food assistance to women
with infant children) violated the Art I, § 8 (Tax and Spend clause) and 10th A; ∏ alleged that
as a US taxpayer, the Maternity Act took her property without due process of law by
increasing her level of taxation.
1. H- Case must be dismissed b/c (1) ∏’s injury is not a proper injury (too attenuated
and generalizable (no direct injury and her claim is the same as everyone else’s) and
(2) allowing her to proceed could open the floodgates of these types of cases. Court
acknowledges it would be different if TP sued municipality- much closer, so injury
more irect.
2. Two key points from case:
a. Courts only decide actual cases or controversies- “no power per se to review
and annul acts of Congress on the ground that they are unconstitutional”
b. Key element of case or controversy is that ∏ suffer a direct injury, not an
indefinite injury in common with people generally.
ii. Rationale for Standing Doctrine (See Flast v. Cohen)
1. Instrumental – HELPS COURTS DO GOOD JOB OF DECIDING A CASE.
Standing requirements ensure that ∏s because of their direct/specific injury has the
right incentive to pursue the case in the necessary adversarial context: injury
requirement means that “the issues will be contested with the necessary adverseness
and that the litigation will be pursued with the necessary vigor to assure that the
constitutional challenged will be made in a form traditionally thought to be capable of
judicial resolution.
a. Rationale falls apart if you have an ideological ∏ who can make good sharp
arguments even though they are not personally injured. Means that
instrumental rationale not the sole reason for standing.
2. Historical/Constitutional (Flast v. Cohen) – JUDICIAL POWER CONFERRED
BY CONSTITUTION UNDERSTOOD IN CONTEXT OF ENGLISH COURTS
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18THC PRACTICE, WHICH WAS TO HEAR CASES WITH A DIRECT
PERSONAL INJURY. Standing is embodied in the Article III reference to judicial
power over cases and controversies, and historically, English courts only acted when
person suffered an injury (Hohfeldian ∏), not just made upset.
a. But this rationale falls apart because courts have recognized a much broader
range of injuries:
 Old common law injuries- torts, contracts, property injuries
 New injuries b/c govt very involved in many things and affect
people’s life on daily basis.
b. Evolution in rights from individual rights/leave me alone (18th/19th Century) to
group rights/govt needs to fix something (20C). Seems weird to apply the
same standing doctrine that was used in the 1800s (pre-biggovernment) to
today’s problems.
c. Also, some people question whether English courts really only acted when
someone was injured
3. Separation of Power- LIMITS COURT TO PROPER ROLE IN FEDERAL
SYSTEM. Standing reqts place limits on what courts can do, narrows the pool of
possible litigants to those who have been adversely affected. Courts should only act
to protect the injured, not as a secondary legislature.
4. Cynical Theory- There is no standing doctrine; Courts just use this to get rid of cases
they don’t like.
iii. Hohfeldian Plaintiffs v. Non-Hohfeldian Plaintiffs- come back to this
1. Flast v. Cohen (USSC 1968 Warren)- ONE TEST FOR STANDING
REGARDLESS OF THE NATURE OF THE CLAIM- ∏ are federal taxpayers and
sued to enjoin the expenditure of funds under certain acts (provided federal funds to
religious schools) because the acts violated the 1st A Establishment and Free Exercise
Clauses.
a. H- Federal taxpayers will have standing to challenge acts only if they sastify
two prongs (here, TPs had standing b/c they challenged act that allowed
Congress to spend tax dollar on programs in violation of the 1st A).
 Nexus btn taxpayer status and statute attacked- fed taxpayer can
only challenge statutes that violate taxing and spending clause (can
the govt tax you and spend the money) AND
 Taxpayer status and nature of constitutional infringerment
b. Douglas concur- federal courts’ role is to protect individual against prohibited
conduct by the other two baranches of Fed
c. Harlan dissent- Hohfeldian v. Non-Hohfeldian
d. Key point of case- Creates one standing test that is independent of the legal
merits of the case
e. Valley Forge Christian College v. AUSCS (USSC 1982)- no standing when
∏s challenged HEW decision to transfer parcel of federal property to religious
school b/c property transfer done pursuant to an act passed under Congress
power under PROPERTY clause And this wasn’t an exercise of congressional
power. With the growth of the administrative state, much of what Congress
used to do is now done by executive, so this TP nexus is dumb.
2. Fletcher/Harlan.Jaffe argument- HOHFELDIAN ∏
a. Definitions
 Hohfeldian ∏ - ∏ who sues to vindicate his personal rights
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 Non-Hohfeldian ∏- ∏ who sues to vindicate rights that inhere in the
public at large.
b. Fletcher’s view- eliminate standing as a jurisdictional requirement and the
idea that injury in fact is an Article III requirement. Standing realy is a
question of substantive law.
 Statutory duty- Congress can decide who should enforce it
 Constitutional duty- look at what the clause does. If the clause
serves to protect the public from government acting in a certain way,
then allow any member of the public to sue the govt to stop the
injury. If protects the individual rights, then only person dirclty
injured.
 Injury in fact requireds a normative judgment- just what the courts
are willing to recognize as a cognizable injury.

iv. Current Standing Doctrine- Allen v. Wright (USSC 1984)- SIX requirements:
1. Constitutional Standing Requirements
a. Personal Injury- “distinct and palpable, not abstract or conjectural or
hypothetical”
b. Causation- “fairly traceable to ∆’s unlawful conduct”
c. Redressability- “likely to be redressed by the requested relief”
2. Prudential Standing Requirements- Judicially imposed limitations
a. No Third-party standing- no rasiing another person’s legal rights.
b. No generalized grievances- more appropriately addressed in representative
branches
c. Zone of interest- ∏s complaint must fall within the zone of interest protected
by the statute.
b. Art III- Requirements of Standing Doctrine- INJURY
i. Traditional Doctrine- ∏ only had standing if he had an INJURY caused by ∆ + injury
violated a LEGAL RIGHT
1. Tennessee Electric Power Co v. TVA (USSC 1938 Roberts)- Electric companies
sued the TVA (federal electric company) alleging that it was an unconstitutional
creation because the TVA would directly compete with their companies.
a. H- Although the ∏s would suffer an injury (increased competition and loss of
revenue), they have no legal right to be free form competition. Only way they
could bring this case is if a statute granted the ∏s a monopoly, not just the
right to operate
ii. Modern Doctrine – INJURY IN FACT, but no need to show you have a legal right.
Injury can included economic, aesthetic, conservational, and recreational interest
(nonmonetary). Must show that you have an injury in fact; just caring about something
isn’t enough.
1. ADAPSO v. Camp (USSC 1969)- ∏s (sell data processing services to businesses)
challenge new bank regulation that allowed banks to perform these data-processing
functions that would compete with the ∏s.
a. H- To have standing, ∏s must only show an injury in fact, economic or
otherwise (“aesthetic, conservational, and recreational”); no need to show that
you had a legal right because that goes to the MERITS, not jurisdiction. Also,
must show that the alleged injury to an interest “arguably within the zone of
interests to be protected or regulated” by statutes.
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2. Sierra Club v. Morton (USSC 1972 Stewart) – ∏s challenge US Forest Service
decision to give Disney the Mineral King valley to develop a huge ski resort complex.
Sierra club said it had a special interest in the conservation and the sound
maintenance eof he national parks, but Sierra Club failed to allege that it or its
members would be affected in their pastimes by the development.
a. H- Caring is not enough- “a mere interest in a problem, no matter how long-
standing the interest and no matter how qualified the organization is in
evaluating the problem is not sufficient by itself”
b. Two key points:
 Caring by itself is not enough, BUT
 Alleging and individual injury (economic, spiritual, aesthetic,
environmental, recreational) will create standing.
c. Rationale- it’s easy enough to get standing, so why not allow just people who
care to have standing (especially since they will satisfy the instrumental
reason for standing- present the issues in a sharply adversarial context)?
 Prevents outsiders from imposing value judgments on those who are
the most directly affected- “rough attempt to put the decision as to
whether the review will be sought in the hands of those who have a
direct stake in the outcome”
iii. Generalized Grievance Requirement – Prudential standing doctrine that a party who just
shares a generalized grievance with everyone else in the country has not standing.
1. PRIVATE RIGHTS- US v. Richardson (USSC 1974 Burger) - ∏ alleges that the
government’s failure to publish the CIA’s budget violates the Accounting Clause (Art
I, § 9, cl. 7). ∏ alleged that he was injured because he couldn’t get a truthful
document stating the CIA’s budget.
a. H- Where the ∏ has no injury beyond a generalized grievance that she shares
with everyone else (here, as a federal taxpayer), there can be no standing.
Injury must be individual and concrete.
b. Rationale – From a private rights view, there is no individual injury to be
remedied; instead, ∏ is asking the court to enforce the law and tell the
Executive what to do (public rights view). Court suggests that ∏ has a
remedy in the political process and that if everyone is affected, they can use
the political branches to change the law. Problem is that elections are about
multiple issues, rare to find a candidate that you agree with on everything.
c. Stewart/Marshall dissent echoing Fletcher’s view- Standing requirements
should vary depending on the right that we are seeking to vindicate. Where
the right protects the public at large, any member of the affected public should
have standing to bring suit and stop the government from acting illegally.
Where the right seeks to protect us as individuals (4th A), then only allow the
person who has been injured by the govt action to have standing.
2. Schlesinger v. Reservists Committee to Stop the War (USSC 1974) - ∏s had no
standing to challenge members of Congress violation of Incompatibilty clause in their
holding positions in the armed forces because just a generalized grievance.
c. Art III- Requirements of Standing Doctrine- CAUSATION and REDRESSABILITY
i. Causation/Redressability linked:
1. Causation- did the ∆ cause your injury in fact? Is the threatened or actual injury fairly
traceable to the ∆, and not an injury caused by the independent action of a third party
not before the court?
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2. Redressability- Even if there was causation of your injury, will the requested relief fix
your injury?
ii. Fundamental Principles –
1. Basic Rule - If ∏ sues ∆ and only alleges the ∆ (3P) gave the party that actually
harmed you the incentive to take that harming action, ∏ does not have standing
because ∏ did not “cause” your injury (link is purely speculative)
2. Heckler rule – If you can recharacterize the injury as one that deprives you of an
opportunity to get XYZ (maybe just be treated the same as everyone else), that can
get you through the standing hurdle.
iii. Pros/Cons of the “Purely speculative” rule
1. Pro- the injury is caused by the third party, not the govt being sued
2. Con- Lets the court get rid of cases that it doesn’t want to hear. Takes a far to narrow
view of what the injury is. If reconceptualize the injury like in Heckler, get around
the indirect link problem
a. Linda RS- real injury is the failure to treat single mothers the same as married
mothers seeking child support (no equal protection). Can redress that injury
by either prosecuting all fathers or prosecuting none.
b. Simon- harder to reconceputalize the injury as deprivation of opportunity to
get medical services.
c. Warth v. Seldin- new injury is deprivation of chance to have affordable
housing
iv. Applicable Cases
1. Simon v. Eastern Kentucky Welfare Rights Organization (USSC 1975 Powell)- ∏s
were indigent individuals who were denied health care because they were poor. ∏s
challenged an IRS revenue ruling that allowed hospitals that didn’t fully serve the
indigent to retain tax-exempt charitable organization status on the grounds that the
ruling violated the IRC and was improperly issued.
a. H- No standing because “unadorned speculation will not suffice to invoke the
federal judicial power.” ∏s contention that hospitals only denying ∏s
medical care because of this revenue ruling is purely speculative.
2. Linda R.S. v. Richard D. (USSC 1973)- ∏ sued the state prosecutor for failing to
prosecute the deadbeat father of her children for not paying her child support. More
of a redressability case – Court held no standing because even if the court ordered the
prosecutor to jail the husband, that didn’t ensure that he would pay her the child
support, so her injury wouldn’t be redressed. Also, the prosecutor’s failure to
prosecute the husband isn’t why he’s not paying the child support.
3. Warth v. Seldin (USSC 1975 )- Poor ∏s challenged town’s zoning ordinances,
alleging that the requirement that most of the town be single-family housing
prevented low-income persons from living there. Court held no standing because
there was no causal link between the ordinance and lack of affordable housing in the
town. Also, no redressability- even without the housing ordinance, town was probably
just too pricey.
4. Allen v. Wright (USSC 1984)- ∏s (parents of black kids in public school) sued the
Sec. Treas for giving illegal tax breaks to private schools that racially discriminated.
∏s argued that these tax breaks caused segregation in the public schools and deprived
their kids of the opportunity to attend a desegregated school (injury). Court held no
standing because no causation (entirely speculative that without the tax breaks parents
would send their kids to public schools) and lack of redressability.
5. Heckler v. Mathews (USSC 1984 Brennan)- RECHARACTERIZATION OF
INJURY- Social Security Act provided spousal benefits for spouses of
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disabled/retired wage earners, but original version said that men had to prove
dependency on wife for ½ support, while women presumed dependent on their
husbands. USSC held this law unconstitutional (presumed Congress intended
everyone to get the benefits), so Congress repealed rule and replaced it with a new
rule that contained a pension offset provision that would only apply to men. Tricky
part of law- severability clause saying that if law held unconstitutional, nobody
should get the benefits. ∏ alleged that the application of the pension offset provision
to nondependent men, but not to nondependent women, violated Due Process.
a. Problem- Even if ∏ had a good case, Congress has indicated that he cannot
get the remedy he seeks, so looks like ∏ had no standing b/c of lack of
redressability.
b. H/Solution- Court recharacterizes his injury as the deprivation of equal
protection (not treated the same as anyone else), and that can be redressed in
two ways- nobody gets the benefits or everyone gets the benefits. Court knew
that if it ruled for Mathews, severability provision meant that nobody would
get the benefits, which would be a huge political mess.
d. Congressional Control Over Standing
i. Key points
1. Congress doesn’t have plenary control over standing- Congress cannot eliminate the
Article III requirements of standing (cannot do away with injury requirement, must be
more than generalized grievance) BUT
2. Congress can create standing that would not otherwise exist by creating a new legal
right that can suffer an injury.
3. Unclear what the rule after FEC/Lujan is- maybe that as long as the right you’re
claiming is abstract and not concrete, then you can’t have standing. Ask Kate.
ii. Rationale for Congressionally created rights
1. Lack of political will- statutes often written in preceding administrations, AG of new
admin doesn’t want to enforce the law. But see Lujan for comment that the executive
has the responsibility to enforcing the law.
2. Resource limitations- AG can’t enforce every law.
iii. Havens Realty Corp. v. Coleman (USSC 1982 Brennan) – § 804 of Fair Housing Act
creates for all persons a legal right to receive truthful information about the availability of
housing (trying to eliminate racial discrimination). Two Tester ∏s (black and white) and
organization dealing with equal housing issues sue alleging that Havens violated § 804.
1. H- Black tester who was lied to had standing, white ∏ who was lied to had no
standing, organization had standing b/c its ability to provide cousnelking and referral
services for homeseekers is injured by Havens actions.
iv. Lujan v. Defenders of Wildlife (USSC 1992 Scalia) – Endangered Species Act required each
govt agency to consult with the Sec INt to ensure that any action it funds doesn’t jeopardize
any species on the list. Sec Int issues ruling that the consultation requirement doesn’t apply
to projects overseas. ∏s take advantage of the statute’s citizen suit provision that allows any
person to sue the Sec Int for failing to comply with the proper consultative procedure,
regardless of whether that person has an injury.
1. No Art III standing b/c
a. No injury- ∏s did not allege a concrete and particularized (affecting the ∏ in
a personal and individual way) injury that is “Actual or imminent,” not
“conjectural or hypothetical. Mere staemtnst that you plan on going overseas
to see the Nile crocodiles not enough.
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b. No redressability- US only funding 10% of the projects, so even if the court
orders the requested relief, project will continue and habitats will be
destroyed.
2. Congress cannot authorize citizen suits for generalized grievances.
a. Scalia view- Congress cannot write a statute that converts a generalized
interest in proper administration of the law into an individual right to have the
law followed where the ∏ has no distinctive concrete harm. Believes the
INJURY requirement has separation of power concerns built into it- prevents
Congress and the courts from ganging up on the executive.
b. Kennedy view- Agrees that Article III mandates that Congress doesn’t have
limitless power to create standing, but he thinks that Congress can define new
injuries and confer standing, but only if it identifies the injury it seeks to
vindicate and relates the injury to class of persons that can bring suit.
c. Key difference btn the two views- Kennedy says that with careful statute
drafting, Congress and the courts can still gang up on the executive
(instrumental approach and sep of power. ; Scalia thinks sep of power
concerns drive standing
d. Dissent bitchslaps Scalia- objects to statement that procedural injuries are not
consitutitonally cognizable. Thinks this decision gives too much power to the
executive at the expense of Congress.
v. FEC v. Akins (USSC 1998 Breyer)- ∏ claimed he was injured b/c he could not obtain a list
of donors to AIPAC (informational injury).
1. H- court holds that the inability to get the information was a genuine injury in fact
because the ∏s injury, though widely shared, was concrete and not abstract. Seems
to indicate that Congress can convert a generalized grievance into a remediable injury
by enacting a statute creating a right. Emphasizes that the FECA protects idnviduals
from this type of harm.
2. Scalia Dissent- thinks this is the same as Richardson b/c this is an informational
injury and really a generalized grievance because it is not particularized- ∏1 has the
same exact claim as ∏2. Tries to distinguish mass tort or voter rights actions by
saying that each of those ∏s has suffered a distinct personal injury- harm to his own
body and derpivation of personal voting rights. Thinks this just allows Congress and
the courts to gang up on Executive.
e. Requirements of Standing Doctrine – Standing to Seek Particular Remedies
i. City of Los Angeles v. Lyons (USSC 1983 White)- MUST HAVE STANDING FOR EACH
REMEDY THAT YOU SEEK- ULTIMATE PRIVATE RIGHTS VIEW- STANDING FOR
INJUNCTIVE RELIEF REQUIRES SHOWING OF REAL AND IMMEDIATE THREAT
OF FUTURE (NOT PAST) INJURIES. Lyons stopped by LAPD and rendered unconscious
and physically harmed by chokehold. He sued City of Los Angeles for damages and also for
a preliminary injunction against the use of these chokeholds unless faced with deadly force.
1. H- Standing for damages, but not for equitable relief b/c of redressability concerns-
merely speculative that Lyons would be subjected to chokehold again. He must
establish a REAL and IMMEDIATE threat that he would be stopped by officers who
would choke him into unconsciousness. ∏’s subjective fear of injury don’t count.
2. Marshall dissent- Pissed off that majority espousing strict private rights view and
willing to let people die from the chokeholds. Dissent believes that Lyons has correct
fear of happening again b/c he’s black. Totally doesn’t buyr the probability
argument- could argue that Lyons injury is that he’s afraid of going about his daily
business b/c of the hchokehold. Here, Marashall argues the central rationale for
standing is to ensure that the ∏ has a sufficient personal stake to assure adverseness
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and thorough presentation of the issues, which Lyons does b/c he has to prove the
policy is unconstitutional in order to win the damages claim.
ii. Exposure to risk as an injury in fact
1. Public Citizen v. Nuclear Regulatory Commission (DC Cir 1990)- ∏s challenged
NRC’s policy statement as inadequate method of fulfilling its duties, alleged that its
members lived near Three Mile Island and were afraid. No comments about standing.
Seems speculative that there will be an accident, but if it does happen, the
consequences are huge.
2. Friends of the Earth v. Laidlaw Environmental Services (USSC 2000 Ginsburg) –
RULE- FEAR THAT SOMETHING IS LIKELY AND YOUR RESTRICTIONS ON
YOUR OWN BEHAVIRO BASED ON THAT FEAR IS A SUFFICIENT INJURY
IN FACT. ∏ organization sued ∆ for discharging mercury into river above permit
levels; DL agreed and fined ∆, but issued no injunctive relief and found that the
discharge didn’t harm the envionrment. ∏ appealed amount of penalty, CA held no
standing b/c civil penalty paid to US wouldn’t redress the ∏’s injuries.
a. Proper injury in case- Undercuts Lyons by stating that ∏s showed a
reasonable fear that pollutant discharge into river would cause nearby
residents to curtail recreational use. Inquiry is the injury to the ∏, not the
environment. IIF where ∏s allege they use the area and that the challenged
acivity will lessen the recreational and aesthetic values of the area.
 Scalia goes apeshit over this- no way this is a reasonable fear b/c
there is no injury to the environment (assumes objective injury is the
only type of injury)
b. Standing for civil penalty is proper b/c large fines deter companies from doing
the behavior that ∏s are complaining about.
f. Prudential- Requirements of Standing Doctrine—Zone of Interests- KATE QUESTIONS
i. Basic Rule for ZOI- Even if you have art III standing to challenge an agency action, the ∏
must have the requisite relationship to the law in order to have ZOI standing. The test for
deciding what the relationship must be is different depending on who you are:
1. Competitors of regulated entities- ∏’s interest must be among the interests that the
statute is intended to advance
a. ∏ more than a merely incidental beneficiary of the statute
2. Everyone else (labor unions, employees, environmentalists)- ∏ must be within the
class of persons that Congress intended to benefit by passing the statute- must show
Congress intended to benefit people like ∏
a. Makes it hard to get ZOI standing
ii. Source of ZOI- § 702 Administrative Procedures Act- to seek judicial review of agency
action, a person “must be adversely affected or aggrieved within the meaning of the relevant
statute”
1. Clarke v. Securities Industry Association (USSC 1987)- Injury + interest sought to
be protected by the complainant arguably within the zone of interests to be protected
or regulated by the statute or constitutional guarantee in question.
a. ZOI- statutorily-derived requirement that guides determination of whether
Congress intended to allow this particular person to complain about the
particular agency decision.
iii. Rationale-
1. Cynical- USSC likes big business, doesn’t like labor unions, environmental activities,
etc.
2. Doctrinal- ∏ must be more than an incidental beneficiary of the statute.
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iv. Fletcher view- eliminate injury requirement and look solely at the zone of interests. ∏s have
standing if they are among the class of persons that the law intended to benefit. Those who
are intended to benefit from it get to enforce the statute.
v. Case law
1. Gorris v. Scott (Eng. 1874)- Statute required livestock to be penned up on ship in
order to prevent the spread of contagious disease. ∆ faile dot pen up the sheep, the
sheep are washed overboard, ∏ sues fro failure to comply with statute.
a. H- Even though the ∆’s actions (failure to comply with the statute) cause the
∏’s injury (loss of sheep), ∏ had no standing b/c his injury was not within the
contemplated purpose of the statute.
2. Air Courier Conference of America v. American Postal Workers Union (USSC
1991 Rehnquist)- REQUISITE RELATIONSHIP BETWEEN ∏ AND LAW-
CONGRESSIONAL INTENT TO BENEFIT PEOPLE IN ∏’S POSITION. Postal
service has the power to suspend its monopoly of mal delivery if it is in the public
interest. USPS suspended PES to allow private services deliver urger letters,
international mail. Postal worker’s union challenged the agency promulgation of the
interanitonl remailing regulation on the grounds that the record didn’t support a
finding that suspension of PES was in the public interest. ∏s allege that this will put
them out of work.
a. H- No standing even though ∏s had art III standing b/c the injury they
suffered (threat to livelihood) wasn’t within the zone of interest of the statute.
b. R- Congressional intent in enacting the statute is key- In passing the statute,
did Congress intend to benefit the class of people of whom the ∏ is a
member?
 Here, court said purpose of PES was to establish a postal monopoly
to (1) prevent a two-tier access to information (private v public mail)
and (2) ensure that all parts of the National were equally served.
Congress did not intend to protect USPS jobs. Postal monopoly
exists to ensure postal services provided to citizenry at large, not to
secure employment for postal workers
3. National Credit Union Administration v. First National Bank & Trust Co (USSC
1998 Thomas) – REQUISITE RELATIONSHIP BETWEEN ∏ AND LAW- ARE
∏’S INTERESTS OF THE TYPE THE STATUTE MEANT TO PROTECT.
Federal Credit Union Act limited membership in federal credit unions to groups
sharing a common bond of occupation or association; purpose of reqt = promote
safety of these groups. NCUA revised interpretation of FCUA Common bond
requirement- now multiple groups could belong (each member doesn’t have to be
associated with every other member). ∏ banks sue under APA alleging that this
regulation was incorrect. ∏’s injury = increased competition from Credit unions;
causation – caused by new regulation.
a. H- ∏s had standing because of new rule- Competitors of regulated entities
invariably have standing to bring claim that the regulated entities are not being
regulated with sufficient stringency. Two part test:
 Interests protected by statute – interest in limiting markets that
federal credit unions can serve (FN 6- credit unions only meant to
serve limited mkt).
 Are ∏s interests one of the protected interests served by statute –
here, banks have a strong interest in limiting financial markets for
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credit unions. Must be more than an incidental relationship between
interest.
b. O’Connor dissent- thinks the correct question is whether Congress intended to
protect certain interests through a provision, not whether a provision may have
the effect of protecting those interests, irrespective of Congressional intent.
She woulnd’t find standing.
g. Third Party Standing- PRUDENTIAL, not Article III.
i. Basic rule – In general, third parties have no standing to enforce the rights of other parties
(McGowan v. MD) even if they have article III standing unless they fall within three
categories (CAplin v. DRysdale-1989):
1. Third party has no forum in which to raise violation of their rights-
2. Third party’s relationship with other person of a certain character- dr/patient,
atty/client
3. Impact on Third party’s rights if 3P cannot contest it- if no impact, court doesn’t want
to hear about hypothetical cases
ii. PPT approach:
1. Standing to assert 3P rights b/c immediate violation of 3P rights.
2. No standing to assert 3P rights if hypothetical future violation of 3P rights AND does
NOT involve 1st Amendment issues.
iii. Rationales
1. Basic rule- Can’t raise rights of others
a. Doctrinal- PRIVATE RIGHTS view- if party affected by the violation waived
their rights, there’s no case for the court to decide
b. Instrumental- constitutional issues best adjudicated by the parties directly
affected by the alleged violation.
2. Exceptions- Appear to be motivated by PUBLIC RIGHTS concerns.
iv. McGowan v. Maryland (USSC 1961 Warren)- GENERAL RULE- NO RAISING RIGHTS
OF OTHERS. ∆ prosecuted for violation of a MD criminal statute that required stores to be
closed on Sunday. ∆ challenged statute on the grounds that it violated free exercise of
religion. No standing in this case because ∆s didn’t allege that it violated their own religious
freedoms; just other persons.
1. Braunfeld v. Brown (USSC 1961)- Orthdox Jews had standing to challenge PA
Sunday-closing laws because they argued that the laws affected their own rights to
exercise their religion.
v. Barrows v. Jackson (USSC 1953 Minton)- 3P STANDING OKAY IF NO FORUM
AVAILABLE TO PERSON HAMRED. White person sued for selling property to black
person in violation of racial covenants placed on the property. ∆ argues that the covenants
were unconstitutional because they would affect the constitutional rights of the black
purchaser (not a party to the case).
1. H- Where a third party has no forum to contest the violation of their rights and we
view the rights as fundamental, courts will allow a third party to raise the rights of the
affected party
2. R- Clear example of public rights view- courts are there to enforce the law and keep
people from harming rights of others.
vi. Craig v. Boren (USSC 1976 Brennan)- STANDING OKAY IF 3P HAS CERTAIN
RELATIONSHIP WITH AFFECTED PARTY AND 3P’s RIGHTS ARE AFFECTED
IF AFFECTED PARTY CANNOT PROCEED. State statute prohibited sale of certain
beer to men under 21 and women under 18; barowner alleges law is unconstitutional b/c
violates equal protection rights of 18-21 yr old men.
15
1. H- Vendor had standing to raise other’s rights b/c she is injured (loss of beer sales),
she had a vendor-vendee relationshwip with the 3P, she’ll advocate it vigorously, if
we don’t’ allow her to contest the law, the law will reamin in force and continue to
impact the rights of the 3P.
2. D- Question whether vendor/vendee relationship is the same as dr/patient, atty/client.
3. Note- Private rights model doesn’t support this outcome.
vii. Special Relationship cases:
1. Griswold v. CT/Eisenstadt v. Baird- dr/patient
2. CAplin &Drysdale – Atty/client relationship
3. Power v. Ohio- Crim ∆/Jury venire have a bond of trust.
viii. Complications and 3P standing
1. US v. Raines (USSC 1960 Brennan)- US sued GA officials for discriminating
against blacks who were trying to vote. DL held part of statute unconsittuitonal b/c
allowed US to enjoin purely private action. GA officials however were subject to it,
but they were trying to raise the rights of hypothetical private parties who might be
subjected to the statute at some point in the future.
a. H- GA officials had no standing to raise the rights of hypothetical 3P whose
rights might be affected by the statute.
b. How does this differ from Craig?
 Craig- immediate violation of 3P’s rights
 Raines- hypothetical future violation of 3P’s rights
c. Court ignored severability argument- seems like statute should be inseverable
based on text and leg history, but court ignores it, maybe in reliance on the
fact that statutes usually found to be severable.
2. Gooding v. Wilson (USSC 1972 Brennan)- ∆ convicted of using abusive language at
GA war protest; ∆ didn’t claim his speech was protected (he made a threat), but he
challenged the statute on overbreadth grounds- statute would chill the speech of other
people, violating their right to free expression.
a. H- ∆ had standing even though he was raising the rights of hypothetical 3Ps.
b. R- STRONG PUBLIC RIGHTS STATEMENT- courts must consider the
question and allow the ∆ to raise rights of hypothetical parties because of the
importance of the 1st Amendment. Still an Article III case- public rights view
of what issues can be raised.
c. Caveats on Gooding:
 Must be substantial overbreadth to allow you to raise rights of others
 State courts can rescue statute from overbreadth by narrow
interpretation.
V. Mootness
a. Basic Rule of Mootness- If things have progressed to the point where no matter what the court’s
decision is, it won’t affect the rights of the parties’ involved, the case is moot and the court cannot
hear it.
i. 95% likelihood of mootness probably enough-
b. Private v. Public rights
i. If pro-private rights, strict mootness
ii. If pro-public rights, mootnes is flexible tool used (FN 11 p. 146 Geraghty)
c. Source of Mootness Requirements-
i. Article III case or controversy- If something is moot, there is no personal stake and not case.
1. DeFunis v. Odegaard (USSC 1974 per curiam)- ∏ applied for admission to UW law
school, but was denied. Sued for an injunction to be admitted to the school in state
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court. Court considering cert petition in his 3L, parties brief on mootness. After cert
granted and oral arguments occurred, ∏ registers for his final semester and the school
promise that it wouldn’t cancel his registration regardless of whether he won or lost.
a. H- Court declines to hear it on justiciability grounds because the case is moot-
no matter what the merits decision, DeFunis will graduate
b. R- Mootness is an article III requirement derived from the inability of the fed
courts to exercise judicial power absent a case or controversy. There is no
definite and concrete controvery touching the legal relations of parties with
adverse interests.
c. FN 5- even though things like illness, economic necessity, academic failure
might prevent graudation, court’s not going to consider speculative
contingencies- as long as about a 95% probability of mootness, court will kick
it out.
d. Brennan dissent- court wimping out and using mootness to avoid dealing with
a politically charged issue of race-based affirmative action (PUBLIC RIGHTS
VIEW). Also, worried that something could go wrong and university would
change its tune about allowing DeFunis to graduate.
ii. Instrumental Basis- parties need to have a personal stake in the outcome in order to have the
incentive to mest their best arguments
iii. Purely prudential doctrine- Honig v. Doe- can’t have exceptions to an Article III requiremtn.
d. Mootness resembles two other justiciability doctrines
i. Standing- standing in a time frame. Standing requires injury on the day you file the
complaint; Mootness requires your injury to continue throughout the case. Once you’re
injury vanishes, your standing to push the case vanishes, too.
ii. Advisory opinion – if a court make a decision that deosn’t affect the legal rights of the parties
before it, that’s an advisory opinion and is not allowed.
e. Exceptions/Application of Mootness- mentioned in DeFunis
i. Collateral Consequences- APPLICATION (injury still exists) (Sibron v. NY)
1. Where the collateral consequences of your conviction will impact your rights, court
may decide whether to reverse your case even if you have been released from jail.
a. E.g., Convicted criminal serves entire length of sentence while working
through the appeal system of his conviction. Can the court decide to reverse
his conviction once he’s free from jail (his injury- deprivation of liberty no
longer exists?)- Yes, if there are collateral consequences from his conviction
(three strikes, dportaion, voting, employability)- those issues are still “live” so
court can rule on conviction.
2. Sibron- Court presume ∆s face collateral consequences, burden on prosecution to
prove no possibility of collateral consequences
3. If only contesting length of sentencing (not underlying conviction), once you serve
your sentence, case become moot. Might be able to argue that collateral
consequences of serving slightly over a year are huge- felony/misdemeanor line.
4. If pay the special assessment within the five-year window and you have to do it, case
not moot because you have a continuing injury- loss of that money.
ii. Capable of Repetition, Yet Evading Review- EXCEPTION (no actual case)
1. Rule- Must have a live case on the day that you go to file the case. But, cases are not
moot if the underlying condition is capable of repetition, yet evading review with
respect to the same ∏! Two prongs to this exception: 1) too short a time for court to
hear case while person has injury & (2) reasonable expectation that injury will happen
to the same complaining party. Hmm, Roe didn’t require that woman has to show
17
that she’ll be in the exact same position again (yes, I’ll get pregnant again and want ot
have an abortion).
a. Roe v. Wade TOO SHORT PERIOD OF TIME TO GET JUDICIAL
REVIEW Pregnant woman seeking an abortion can get a ruling from the
USSC on right to abortion even though she’s not pregnant on the day the court
hears the case because it’s guaranteed that this type of issue will never get
before the court otherwise.
 PUBLIC RIGHTS VIEW- court should decide constitutionality of
laws limiting abortion, created an exception to mootness doctrine
that lets it do just that.
b. Weinstein v. Bradford (USSC 1975)- SAME COMPLAINING PARTY-
Prisoner challenged constitutionality of parole procedures even though he was
paroled and fully released. Added second prong.
2. Limits on the exception- Must have an injury on the day you file the complaint-
otherwise just an advisory opinion.
3. Mootness as prudential doctrine- Honig v. Doe (USSC 1988 Rehnquist concur)-
mootness cannot be an Article III doctrine because USSC couldn’t create this type of
exception. Mootness is a prudential doctrine
iii. Voluntary Cessation- APPLICATION/EXCEPTION
1. Case is not moot if ∆ discontinues his harmful conduct after the litigation is
commenced because the court’s decision can still impact the parties (private rights-
keep ∆ from pretending to stop) and it’s in the public interest to decide the legality of
certain conduct (public rights).
2. When does voluntary cessation render issue moot?
a. FOE v. Laidlaw- ∆ bears the burden of showing that “it is absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to
recur.”
3. Statutory repeal of challenged statute renders lawsuit moot based on the unlikelihood
that the legislature will renact it.
iv. Class Actions- don’t understand the difference btn sosna and franks
1. Basic rule - As long as named ∏ in class action had the injury, class action can
proceed even if her claim moots out after class certification; also, if her claim moots
out before certification, she can still contest the certification denial.
2. Application v. Exception
a. Application- someone in class has a live controvery
b. Exception- procedural device only reason why it’s not moot. Should
substitute named ∏ for someone who still has a live case.
 Query whether any difference btn not allowing a class action to start
without a named ∏ and allowing it to continue once the named ∏
claim moots out.
3. Sosna v. Iowa (USSC 1975 Rehnquist)- Woman challenged IA state law allowing
divorce only after a year of residence, named ∏ of class action; divorce came through
while suit pending.
a. Rule- Class action can continue even though the claim of named ∏ has
become moot, but the matter on the whole is capable of repetition yet evading
review for other people.
b. Capable of repetition exception doesn’t work because not asserting it will
happen to Sosna again.
4. Gerstein v. Pugh (USSC 1975 Powell)- Classic capable of repetition, yet evading
review.
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a. Rule- where shortness of time involved so extreme (as in pretrial detention),
case can go forward even though the party is no longer a pretrial detainee at
time of class action certification. Removed requirement that class action be
certified BEFORE named ∏s case becomes moot
5. Franks v. Bowman Transp. Inc (USSC 1976 Brennan)-
a. Rule- Any class action can continue eve if the named ∏’s claim is moot, as
long as the class gets certified
 Application v. Excpetion
 Application- somebody has
6. US Parole Commission v. Geraghty (USSC 1980 Blackmun)- Trial court denies
class certification, named ∏ moot out, appeal of certification denial taken.
a. Rule- Even if named ∏’s claim moots BEFORE class certification, can still
proceed with the appeal of certification denial.
VI. Political Question Doctrine
a. Basis Doctrine- Even if a court properly has an issue before it (standing, mootness, issue properly in
front of court), a court may decline to hear the case on the grounds that it poses a political question
inappropriate for the judiciary to answer.
i. Luther v. Borden (USSC 1849 Taney) – RI citizens try to adopt a new constitution and
install a new government to replace the old Charter govt. Luther supported Dorr (putative
new governor); men representing the Charter govt enters L’s home and arrested him for
insurrection. L sued B for trespass, B asserted he was a police officer and had the right to
enter the property. L asserted he wasn’t a police officer b/c he Charter govt was valid govt of
RI.
1. H- USSC won’t hear the case b/c the issue of whether the Charter govt is the proper
got of RI is nonjusticiable.
2. R- Congress has to dcide whether the govt is proper or not; not for Court to decide.
b. Real v. Bogus Political Questions
i. Real PQ- The activity of the political branches is subject to ta legal constraint, but the
constraints are not judicially enforceable. Court could decide the case, but decides not to.
1. Morgan v. US (DC Cir 1986) – Closely contested House Rep election, Democratic
house decided to seta the Dmocratic candidate (4 vote margin), Republican sue for
injunction requiring seating of Republican candidate.
a. Constitutional constraint on Congress – it must count the votes correctly and
seat the winner. There is a standard here that the court could apply, it just
chose not to.
ii. Bogus PQ- No constitutional constraint on the activity of the government branch, so court
cannot do anything b/c there’s nothing to do. Case would be dismissed on a 12b6 motion for
failure to state a claim. What most “PQ” cases really about
1. e.g., A sues Prsident for not signing a bill, but Executive has plenary discretionary
power to veto a bill. No legal constraint on the Executive and without PQ, would
dismiss on 12b6 grounds.
c. Baker v. Carr (USSC 1962 Brennan)- Six Factors for PQ
i. Textually demonstrative constitutional commitment of issue to coordinate political
department
1. Tricky b/c lots of powers textually committed to Exec/Leg, but rare for Constitution
to explicitly state that judiciary cannot review the action
2. Not helpful for real PQ cases, works for bogus PQ cases
ii. Lack of judicially discoverable and manageable standards for resolving the issue
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1. Close connection between CONTENT of the constitutional issue in question and the
justiciability of the claim. Existence of judicially manageable standards depends on
what the clause mandates.
a. Baker v. Carr- TN apportioned legilstaive idstricts to be diverigent in
population size, unconstitutional under EPC. Court held PQ. If constitutional
standard clearly one person one vote- that would be manageable, but if the std
is that states can balance urban and rural interests, then court has to get into
the thicket of political issus.
iii. Impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion
1. Goes to he content of the Constitutional provision at issue- e.g., does EPC
apportionment mean equal voting districts.
iv. Impossibility of court’s undertaking independent resolution without expressing lack of
respect due coordinate branches of government
1. bogus PQ- court shouldn’t mess around with political branches’ discretion
v. Unusual need for unquestioning adherence to a political decision already made
1. Foreign Affairs
vi. Potentiality of embarrassment from multifarious pronouncements
1. E.g., undoing a presidential impeachment- some things just too big for court to step in
d. Difficulty in applying PQ-
i. Nixon v. US (USSC 1993 Rehnquist)- NO JUDICIAL REVIEW OF IMPEACHMENTS.
Nixon is a federal judge who was impeached by the House for making false statementst
before a federa grand jury. He was convicted by a jury and sentenced to prison; the Senate
committee tried him and removed him from office. Nixon alleged that the removal was
improper b/c the entire Senate didn’t try him, just the Committee (full Senate did vote).
1. rationale- ½ Real and ½ Bogus PQ
a. Try doesn’t impose judicially manageable safeguards- no constitutional
constraints = Bogus PQ
b. Snate does have the sole power to try the official- constitutional constraint-
Real PQ
2. Two main groups of arguments
a. Claim-based – Try imposes no limi; no judicially manageable limits, only
three precise limits
b. PQ- sole power to try, original intent, checks and balanvce, bias, relief
problems
e. Summary of PQ
i. PQD is a mystery- Is it right to allows the court to refuse to act when there is a clear
constitutional constraint that has been violate? Not a remedy for every rights
1. Bush v. Gore
2. Undeclared military conflict
ii. Wechsler v. Bickel debate
1. Wechsler- only time court may properly abstina from decision is that Constitution has
committed issue to another brach of govt. In all other cases, court must hear them.
2. Bickel- passive virtues of PQD- gives USSC a reason to avoid cases that are too
politically charged
iii. Cases that PQD applies to
1. Guarantee clause
2. Foreign policy- recognition of foreign govt
3. Recognition of Indian tribes
4. amending the constitution and impeachment- PQs
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Part III – Congressional Control of Federal Jurisdiction- “Jurisdiction-Stripping”
I. Basics of Jurisdiciton stripping and channeling

a. External constraints on cOngressional ability to strip jurisdiction
b. Internal Constraints
i. Classically- Congress has plenary power
ii. Story/Amar- internal constraints b/c of text and structure- in three categories of cases, there
must be some possibility of federal jurisdiction (either original or appellate, USSC or lower
fed courts).
iii. Hart- Congress can do whatever it wants as long as it respects the role of the federal courts in
our system.
c. Jurisdiction channeling fine- Outside of Supreme Court original jurisdiction, nothing says that you
have a right to have a specific Art III hear your case either in original or appellate form.
d. Judiciary will interpret statutes in a way that avoids jurisdiction stripping.
e. WE just don’t know whether Congress can strip all jurisdiction!
i. Bickel- it’s good b.c it prevents mutually assured destruction, everyone plays nicely with
each other.
II. Traditional Doctrine
a. Rule- Congress has complete (plenary) control over the jurisdiction of the lower federal courts and
the appellate jurisdiction of the US Supreme Court as long as it does not go beyond the demands of
Article III.
b. Rationale-
c. Sheldon v. Sill (USSC 1850 Grier)- Sheldon owed a bank mortgage money (both residents of MI);
Bank assigned the debt to Sill (NY). Sill sued Sheldon in federal court in MI based on diversity
jurisdiction.
i. H- Federal court had no jurisdiction because of §11 Judiciary Act which restricted the court’s
ability to hear cases of these type where there was no diversity originally.
ii. R- Congress only bound by the limits of Article III- cannot give the federal courts more
judicial power than Article III grants, but it does not have to grant all of the power that
Article III allows. Art III, § 1- “The judicial power of the US, shall be vested in one
Supreme Court, and in such inferior Courts as the Congress may from time to time ordain
and establish.”
d. Ex Parte McCardle (USSC 1868)- McCardle arrested for publication of incendiary and libelous
articles in Reconstruction era south. Sought habeas from fed circuit court for illegal detention;
denied and McCardle appealed denial to supreme Court. Congress then repealed portion of act
allowing writs to federal circuit courts to be appealed to Supreme Court (removed chunk of USSC
appellate jurisdiction)
i. H- Congress can control the USSC’s appellate jurisdiction b/c of the Exceptions Clause
(ARtIII, § 2- “In all other cases, the Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such regulations as the Congress shall
make.”)
ii. Key point- USSC did retain some habeas appellate jurisdiction.
III. Theories of Jurisdiction Stripping- External v. Internal Constraints
a. External v. Internal Constraints
i. External constraints- another provision of the Constitution that limits the ability of Congress
to change the jurisdiction of the federal courts
1. US v. Klein (USSC 1872)- Klein sought to get southern rebel’s property back because
the rebel got a presidential pardon. Congress passed statute stating that a presidential
pardon was never admissible in evidence of this type of claim AND it would
constitute proof that recipient participated in the rebellion. Statute had the effect of
21
barring any federal court from ruling in this type of case and dictating to the courts
the decision that they must reach.
a. H- President has exclusive power to issue pardons and Congress cannot alter
the jurisdiction of the federal courts in a way that violates another provision of
the Constitution. Congress cannot use the judiciary to abridge the power of
the executive.
2. Key inquiry- Does the removal of the jurisdiction directly violate the constitutional
right?
3. Hypos
a. Congress passes a statute that prevent lower federal courts (not removing all
federal jurisdiction) from hearing cases challenging the constitutionality of
statutes regulating abortion. Is this jurisdiction-stripping permissible?
i. If ∏ still has a right to get an abortion, then staute is fine. Just telling a
∏ that he can’t bring a lawsuit in a certain forum doesn’t violate the
underlying constitutional right.
b. Tribe- Statute that restricts availability of federal forum to start your case is
invalid adjustment of jurisdiction because it places an impermissible burden
on underlying constitutional rights.
i. Siegel counters- being forced to start your case in state courts not an
impermissible burden b/c those courts have ot apply the federal law,
too.
ii. Internal Constraints- trickier because must look at article III and make arguments based on
that.
1. Key Constitutional Language
a. Art III, § 1- “The judicial power of the US shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish:
b. Art III, §2- “The judicial power shall extend to:
i. ALL Cases
1. in Law and Equity, arising under this Constitution, the Laws of
the US, and Treaties made, or which shall be made under their
Authority
2. Affecting Ambassadors, other public Ministers and Consuls
3. admiralty and maritime jurisdiction
ii. Controversies
1. to which the US shall be a Party
2. between two or more States
3. between a state and citizens of another state
4. between citzens of different states
5. between citizens of same state claiming lands under grants of
different states
6. between a state/citizens of a state and foreign states, citizens, or
subjects.
c. Art III, §3- Supreme Court SHALL have original jurisdiction in ALL cases
affecting ambassadors/ministers/consuls AND those in which a state shall be a
party.
i. Exceptions clause- In all other cases, Supreme Court SHALL have
appellate jurisdiction, both as to Law dn Fact, with such Exceptions,
and under such regulations as the Congress shall make.
2. Amar/Story Two-Tier Theory
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a. Martin v. Hunters Lessee (USSC 1816 Story)-
b. The language of Article III, §§ 1&2 suggest that some federal court must have
jurisdiction over cases involving federal questions, ambassador and admiralty
and maritime ( Text- “Judicial power of US SHALL extend to ALL cases”;
Structural- those three cases very important for federal courts to hear). That
court can either be the USSC or a lower federal court (Amar doesn’t think Art
III requires Congress to create lower federal courts as long as it provides for
USSC appellate jurisdiction over cases in those three categories).
c. Exceptions Clause – Congress can still remove all of USSC appellate
jurisdiction in those cases as long as it creates a lower federal court to hear the
case. Nothing mandates that USSC MUST hear federal question/admiralty
cases.
d. Implication of the theory
i. All federal judges are equivalent- no difference btn a federal district
court judge and a USSC Justice
ii. Sharp distinction btn state court judges and federal court judges- in
three categories of cases, must have a federal judge be able to touch
the case at some point.
iii. Rationale- federal court judge are appointed (not elected) and have life
tenure (insulated from political whims).
e. Hypos
i. Congress passes law saying no inferior feeral court can hear abortion
cases. Federal question case- just barred from starting in district court,
can still get USSC appellate review
ii. Can only appeal state court decision to federal district court- stil okay
b/c an Art III judge has final say.
iii. NO federal court can hear consittuoinal challenge- Not okay under
Amar/story b/c federal judrisction is mandatory.
3. Hart Theory
a. Art III requires ONLY that there be one Supreme Court with original
jurisdiction over two types of cases. Congress can remove all USSC appellate
jurisdiction and eliminate all lower federal courts as long as it doesn’t destroy
the essential role of the federal courts in our system.
i. E.g., McCardle result fine (USSC couldn’t have appellate juris over
habeas writs appealed from circuit court) because a lower federal court
still had the writ power and the USSC could issue writs filed with it.
b. Best support for this argument is that Congress has never vested the federal
courts with the full judicial power that it’s allotted in the constituton.
4. Black/Wechsler Theory- PRIVATE RIGHTS VIEW
a. Congress can make any exceptions it regards as wise to the appellate
jurisdciiton of the USSC because 1) USSC itself declines to hear certain cases
and 2) Constitution just sets the outside limits on how much jurisdiction can
be exercised by federal court; Congress is left to make the decision on how
much jurisdiction to confer.
b. Wechsler- Federal court only pass on constitutional questions b.c they decide
cases, not because they have some special duty to enforce the Constitution or
police the ogvt. Congress can basically do whatever it wants with the federal
courts except use them as organs of enfrocment or preclude them from
deciding the constitutional issue in the course of deciding a case (MArbury v.
Madison).
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i. Hypos- Congress passes a law making it a crim to burn the flag AND
says that no federal court could have jurisdiction to consider any
challneg ot the constitonality of the law.
1. Amy sues in fed court to have law declared unconstitutional-
jur stripping provision fine b/c fed court only there to decide
cases, not pass on validity of laws.
2. Barbara burns flag, prosecuted, raises law’s unconstitutionality
as a defense- jurstirpping unconstitutional b/c it would prevent
the court from deciding the constitutional issue in course of
deciding case
b. Fofjsdaljfla
Classic (Black/Wechsler) Amar/Story Hart Theory
Theory  Congress has plenary  In three categories of cases,  Congress can make
control over the some federal court must have whatever exceptions
jurisdiction of federal some form of jurisdiction. It to the USSC appellate
courts (no Article III could be USSC appellate OR juris and can establish
restrictions/internal lower federal court, as long as as few or as many
cosntraints), but is a federal court somewhere lower federal courts
subject to external can touch the case. as it wants, as long as
constraints it doesn’t alter the
essential role of
federal courts in our
system.
Support Art III- exception clause and TExt – ALL used in conjunction Text- “Exceptions”
ability to make lower courts with cases implies a special implies a general rule to
as it desires. solicitude for these types of cases which there are
Historical practice- Congress Structural- 1st three categories exceptions. I.e., Supreme
never vested ALL of judicial most important for federal court court has appellate
power in fed courts to hear- go to issue affectin jurisdiction except where
nation as a whole. Congress decides not to
Consistent with yes Not really yes
Exceptions
Clause
Pros  Democratic basis for  Respects SHALL and ALL  Respects Congress’s
judicial review-  Very clear power, but places
Congressional decision  Pleasing result of preventing some limit on it.
not to limit jurisdiction rights violations
shows that population
believes judiciary is
doing a good job.
 Respects exceptions
clause
 Clarity- congress can do
what it wants
 Best check on judicial
power- complete
proscription
Cons  Dangerous to judicial  Disrespects exceptions power  Hard to administer
power  Allows for elimination of
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 Disrespects specific uses USSC appellate jurisdiction-
of SHALL and ALL lower fed courts get to be the
 Allows violations of final arbiter
rights  Violated 1st Judiciary Act-
ASK KATE (1st Judiciary Act
allowed appeal from state
court only if ruling based on
federal law- unconstitutional
state law would never be
reviewed). Assumer drafters
of 1st JA were drafter of
constitution and what they
meant.
IV. Congress’s Power to Channel Jurisdiction

a. Key point- Congress’s power to channel the jurisdiction of federal court is uncontroversial; as long
as Art III review provided for somewhere, Congress can channel jurisdiction among different Art III
courts.
i. E.g., Okay to require certain claims only to be brought in Court of Federal Claims (CFC)
rather than in fed district court b/c can appeal to Fed Circuit (Art III).
b. Yakus v. US (USSC 1944 Stone)- Yakus convicted of selling beef a prices in excess of regulation
prices; he calaimed the regulations violate Acts pricing standards and were unconstitutional. Act
allowed any person subject ot an order to file protest with administrator, who’s decision was
reviewable in specia Art III court to decide the validity of the regulation. Act basically deprived
federal district court of hearing Yakus’ defense that the egulation was unconstitutional.
i. H- Statute was fine because it allowed an Article III court somewhere (Emergency Court of
Appeals) to hear the claim that the statute was unconstitutional, even though it didn’t allow
the federal district court to hear the issue.
1. “There is no constitutional requirement that test be made in one tribunal rather than in
another”
ii. Rutledge dissent- One thing for cOngress to withhold jurisdiction from Art III courts, but not
okay for them to confer it and direct that jursdiciton must be exercised inconsistent with the
Constitution. He believed that the process provided through the ECA essentially deprived
Yakus of the right to have an Article III case consider his defense.
1. Once court has federal jurisdiction, it has jurisdiction over all of the issues.
c. Jurisdiction channeling hypos-
i. Statute bars all federal courts except one from deciding validity of price controls- okay
because you can get federal court review of your complaint.
ii. Statute bars all courts from considering validity of price controls, but can consider it as a
defnse- okay
iii. sTatute bars anticipatory sutis and consideration of issue in defense- not allowed—interfering
with ability to court to decide the case.
V. Interpretation of Potential Jurisdiction- Stripping Statutes
a. Key point- courts go out of their way to interpret statutes in a way that keeps them from stripping
jurisdiction, usually by turning them into a jurisdiction channeling statute.
b. Principles of interpretation used by court in this scenario
i. Ashwander- Court has the duty to interpret a statute in a way that avoids constitutional
questions.
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ii. Clear and convincing evidence- court will require clear and convincing evidence that
Congress meant to take away any judicial review of agency action.
c. Johnson v. Robison (USSC 1974 Brennan)- Conscientious objecter to Vietnam War sued for
veterans benefits, VA denied his claim, he sued in federal district court. Govt argued that a certain
satuteu prohibited judicial review of the VA administrator’s decisions.
i. H- The statute at issue just precludes judicial review of the Administrator’s decision UNDER
the law, NOT judicial review of the law itself.
ii. Note- under new version of statute, federal district courts prohibited from reviewing the
Secretary’s determination of veteran’s benefits, BUT could appeal to court of veteranclaims,
then to Fed Circuit.
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Part IV – Congressional Control of State Court Jurisdiction
I. Basic Rules:
a. Presumption that state courts have concurrent jurisdiction over federal questions. Congress must
affirmatively act (usually by express statement) to remove jurisdiction over federal questions.
i. Tafflin test for determining when Congress has removed jurisdiction, but Scalia and
Yellow Freight seems to indicate that really need to have express statement of
jurisdiction removal.
b.
II. When State Courts MAY Hear Claims Arising Under Federal Law
a. Presumption of concurrent jurisdiction with federal courts
b. Rationale-
i. Madisonian Compromise- Because of the small size of the Supreme Court’s orginal
jurisdiction and Congress’s discretion not to create any lower federal courts, the
Constitution contemplates that cases involving federal issues would be heard in state
courts
ii. Supremacy Clause/Scalia concurrence in TAfflin- State courts presumed competent to
hear federal issues because of the Supremacy clause which declares the federal law is
state law. Differs from Hamiltonian rationale-
iii. Hamilton Federalist #82- States should retain concurrent jurisdiction over actions that
they would have had jurisdiction over prior to the enactment of the Constitution.
Presumes that if state finds person within its borders, it can exercise jurisdiction and it’s
competent to do so. Allows Congress the power to remove jurisdiction form the states
over certain issues growing out of the Constitution. Even if federal law were as foreign
to the state as the law of Japan, we still presume that state courts can competently apply
it.
c. Power of Congress to make federal question jurisdiction exclusive
i. Source and Limits of that power
1. Necessary & Proper + judicial power- Congress has the ability to make any law
that is necessary to implement the power vested in any branch of federal govt,
BUT can’t strip states of their rightful jurisdiction.
2. E.g., Congress could not make diversity jurisdiction exclusive to federal courts
because that would violate the 10th Amendment (states have always had power
over these types of cases).
ii. When has Congress made federal question jurisdiction exclusive?
1. Three-part Tafflin Test:
a. Explicit statutory directive OR
b. Unmistakable implication from legislative history OR
c. Clear incompatibility between state-court jurisdiction and federal interests
i. Desire uniform interpretation
ii. Fedreal judges have expertise in federal law
iii. Federal judges might be more hospitable to federal claims.
2. Yellow Freight System v. Donnelly (USSC 1990 Stevens)- APPEARS TO
RESTRICT TAFFLIN TO THE FIRST PRONG.
a. H- Congress did not remove jurisdiction over Title VII Civil Rights Act
cases from state courts
b. R-
i. No express statement limiting jurisdiction to state courts or ousting
state courts from jurisdiction- “omission of nay such provision is
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strong and arguably sufficient evidence that Congress had no such
intent” to remove jurisdiction.
ii. Minimizes any thing but direct statements about intent found in
legislative history
iii. Incompatibility with federal interests- ∏s have to go back and
forth btn state and federal systems
3. Scalia view in Tafflin- Only an express statement of exclusive federal jurisdiction
can curtail state jurisdiction.
a. Hates legislative history implication
b. Third prong only onkay if statute expressly mentions only fed court s_ fact
that state-court jurisdiction would plainly disrupt statutory shceme.
III. Removal of Cases from state Courts-
a. Two basic rules: 1441- in general, can only remove civil actions if could have started in fed
court; 1442- for actions/prosecutions against federal officers, can remove as long as there is a
federal defense raised.
b. TN v. Davis ((USSC 1879 Strong)- ASK KATE ABOUT THIS! federal revenue agent killed
moonshiner in the courtse of his federal duties; indicted for murder and petitions to remove case
into federal district court. His defense to the murder charge is that he acted in self-defense while
acting as a federal officer.
i. H- removal proper b/c a case arises under federal law when its correct decision depends
on arguments presented by either party.
ii. Comments- Doesn’t this conflict with the well-pleaded complaint in motley? No, b/c
that case was just about where you could start your case.
iii. Consittuional basis for Congress doing this:
1. Constitutional Arising under clause- federal question defense counts as much as
the original fed question complaint.
2. Via 1442, Congress chose to grant removal jurisdiction to fed courts.
3. If state court refuses to stop processing case, Congress can order them to stop.
c. Two basic rules
i. §1441- Removal proper only if case could have started in federal court originally
ii. §1442- Can remove a civil/criminal prosecution commenced in state court against the
US/agency or officer acting under the color of his office.
1. Mesa v. CA (1992)- USSC interprets 1442 as requiring that there be a federal
defense in the case to justify removal to fed courts. Without the fed defense,
allowing nondiverse case into fed courts is unconstitutional.
2. Criminal cases can be removed because states surrendered their sovereignty over
certain areas.
IV. When State Courts MUST Hear Claims Arising Under Federal Law
a. State Court Obligations to Consider Federal Claims
i. Basic rules- Judicial power is normally mandatory (courts are there to decide cases), so if
a case is properly within state court’s jurisdiction, the state court must hear it is has a
valid (nondiscriminatory) excuse not to hear it.
ii. Rationale- Why can Congress commandeer state judiciary when we don’t let them
commandeer state executive (Printz) or legislatures (NY v. US)?
1. Supremacy clause (federal law is state law) + inherent nature of judicial power
(hear cases that you have jurisdiction over) + Madisonian Compromise (small
original USSC juris +Congress ability to remove all appellate meant most cases
would go to state court).
iii. Cases-
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1. Mondou v. NY- ∏ sued in state court under FELA(precursor to modern worker’s
compensation statute). Federal statute removed employer’s defenses to a worke’s
comp claim- contrib. negligence, assumption of risk, fellow-servant-
Revolutionary statute. State court refused to hear the case b/c FELA contrary to
the state’s policy (expressing a preference for state policy).
a. H- Federal cannot be contrary to state policy because federal law is the
policy of thet state based on the supremacy clause.
2. TEsta v. Katt (USSC 1947 Black)- State courts can only refuse to hear federal
question cases if they have a valid excuse. Here, fact that RI policy is not to
enforce statute of other state and US that it deems penal is not a valid exuse.
a. Definition of valid excuse- nondiscriminatory (not expressing a preference
for state law)
i. Douglas v. New York- NY tatute dismissing suits by nonresidents
against nonresident corporation based on out-of-state activities
valid excuse.
ii. McKnettv. St Louis- nonvalid excuse- law is a federal law
iii. Missouri ex rel Southern Ry – forum non conveniens valid excuse
b. State Court Procedure When Considering Federal Claims
i. Rules: State courts must apply federal substantive law + federal procedures integral to
the purpose of the federal right.
1. Bombolis rule- When state court hears federal cause of action, it must apply
federal substantive law, but can use state procedural law
2. Dice rule- In deciding federal causes of action, state courts must follow the
federal procedures that are such an integral part of the federal law that not
following them will have a tendency to take away the federal right that Congress
has conferred.
3. Brown v. Wester RY (USSC 1949)- Dice requires state court ot follow fed
substantive url AND substantive procedures federal pleading standards
ii. Siegel’s comments
1. Still mysterious where Congress gets the power to tell state courts what to do, but
these cases indicate its okay.
2. Probably okay if Congress said that in every FELA case the stae court must
follow the appropriate federal procedures.
iii. Minneapolis v. Bombolis (USSC 1916)- MN state law didn’t require unanimous verdict,
but 7th A requires unanimous verdict.
iv. Dice v. Akron, Canton & Youngstown RR (USSC 1952 Black)- FELA case in state
court, issue was whether the RR worker released his claim for compensation. Worker
argued that RR lawyers tricked him into signing it. Jury awarded him the verdict, but
state court entered JNOV against him based on state law regarding the validity of such
releases (judge determined factual issues).
1. H- In deciding federal causes of action, state courts must follow the federal
procedures that are such an integral part of the federal law that not following them
will have a tendency to take away the federal right that Congress has conferred.
2. Rationale-FELA says nothing about when a release would be valid (who would
determine release validity), but the entire purpose of FELA is to make it easier for
worker’s to sue their employers for workplace accidents. In this case, allowing a
judge rather than a jury to decide the issue of the release’s validity would directly
contradict that policy. Congress wants a sympathetic jury to hear it.
3. Frankfurter dissent- unfair to tell staets that they have to change their procedures
just to apply federal law
29
Part V – The Applicable Law
I. State Law in Federal Courts

a. Erie rule-
i. Federal courts sitting in diversity must apply state law. State law applies wherever it hasn’t
been displace by federal law- because federal law is limited, state law will often govern.
b. Swift v. Tyson (USSC 1842 Story)- For issues that are matters of general law, in diversity cases,
federal courts can create federal common law to apply to resolve the case. Tyson paid for land with
postdated check, Norton endorsed check to Swift in exchange for debt release, Swift seeks to collect
from Tyson, but Tyson said that Norton defrauded him and he shouldn’t have ot pay Swift. Swift
sued Tyson in SDNY (diversity); should court apply NY state law to the claim?
i. H- Judiciary act only requires federal courts sitting in diversity to use state law as rule of
decision in cases where they apply. Rules of Decision act only mandates application of
LAW (read here as positive law) of states, not state common law (Warren debunked this
later). State laws not meant to apply to general issue like commercial law- instead, allow
federal judge to determine federal general common law.
ii. Import of Swift v. Tyson- Some matters are to be governed by general law, which is the same
everywhere (natural Law), so federal judges should be able to discern and apply that law
rather than be forced to use the state common law
iii. Rationale-
1. Promotes uniformity is have one general federal common law- want law of negotiable
instruments to be the same in NY as in Utah.
2. General law has always included merchant law, martitime and law of nations.
3.
iv. Post-Swift- lots of cases aobut what are matters of general law (amenable to federal common
law).
c. Erie RR v. Tompkins (USSC 1938 Brandeis)- Reverses Swift- in diversity cases, federal courts
must use apply state law to resolve the issue! FUNDAMENTAL SHIFT IN PHILOSOPHICAL
VIEW OF LAW
i. F- Tompkins (PA) injured by passing freight trains while walking along RR right of way;
sued Erie RR (NY) for negligence in SDNY. PA law = RR only liable for injuries to people
using its pathways (deemed trespassers) if RR’s conduct was wanton or willful (not just
ordinary negligence). Fed common law- doesn’t matter if person is trespasser, liability
incurred by ordinary negligence.
ii. H- Where federal court sitting in diversity and a state law issue arises, the federal court must
apply STATE law, not general federal common law.
iii. Rationale- Swift was wrong!
1. Misconstruction of §34 Judiciary Act- in RDA, “Laws of several states” meant both
state statutory and common law.
2. Bad results- led to vertical disuniformity through forum-shopping, but didn’t really
create great horizontal uniformity. Also, put ∆ in position of not being able to
remove.
a. Black & White Taxicab v. Brown &Yellow TAxciab- BY wanted exclusive
concession to pick up people at KY RR station, but knew such a contract
would be void under KY state law. BY reincorporated in TN, and then sued
rival KY company in WDKY to get the better federal rule.
3. Swift rule UNCONSTITUTIONAL- No constitutional basis to create federal
common law in areas that are not within the specific federal power.
a. Law emanates from the sovereign (no natural law), and the constitution limits
the federal governments sovereignty and ability to make law in prescribed
30
areas. For federal common law to be constitutionally applied in diversity
cases, there must be constitutional authority.
b. Diversity clause does not implicitly provide Congress and the fed courts with
the authority to make law for those types of cases. Diversity jurisdiction
meant to provide a neutral forum, not to create new rules of law. Compare to
admiralty clause- framers wanted uniform law, gave jurisdiction to the fed
courts.
d. Choice of Law- Which state’s law to apply?
i. Klaxon v. Stentor Electric (USSC 1941 Reed)- Federal courts sitting in diversity apply the
choice of law rules of the state in which they sit
1. Two types of state law:
a. Internal laws- substantive- torts, property, contracts
b. Choice of laws – when state A or state B’s internal laws will apply
2. Rationale-
a. Achieve vertical uniformity- uniformity in how state and federal courts in the
same state apply the law.
b. Prioritizing vertical uniformity over horizontal uniformity (all federal courts
apply the same choice of law rules) because the nature of a federal system is
that there will be horizontal disuniformity
3. Constitutional basis- no good constitutoina basis for having federal choice of law
rules.
e. Other Applications of state law in federal court- ASK KATE!!!! Missed this class
i. Rule- Even where Congress HAS created federal law, that law may just be interstitial- not
meant to govern all aspects of a situation- in which case you need to adopt the state law to fill
in the gaps.
1. E.g., federal cause of action, with some aspects governed by state law (SOL); Federal
patent or copyright statutes where congress hasn’t created uniform family law.
ii. Agency holding corporation v. Malley Duff & ASsociaties (USSC 1987 O’Connor)- MD
sued AHC under RICO, RICO doesn’t have an express Statute of limitations, but district
court dismissed on SOL grounds. What SOL should federal courts apply?
1. General rule- Where a federal act is silent with respect to a statute of limitations, in
general, the court assumes that Congress intends court to borrow state law.
Sometimes, federal court should decide if a rule from federal law provides a closer
analogy than avialab estate statutes and when the federal policies at stake make the
federal rule more appropriate, court should look at the federal law and apply the SOL.
2. H- Federal Clayton Act is the better analogy to civil rico b.c of its recovery, concept
of private AG, compensate same injury, applys the Clayton Act SOL.
3. Scalia concur- can apply state SOLs b/c the only federal law that you’re worried
aobut being uniform is the actual cause of action; Congress doesn’t mean to disturb
the statute of limitations from each state. State SOLs are not BORROWED, they
apply of their own force.
iii. DeSylva v. Ballentine (USSC 1956 Harlan)- Author died before he could get renewal
copyright; has widow and illegitimate chilled- is the kid entitled to share in the copyrights.
COpyrigth statutes (federal statute)- how should words “widow, widower, or children of ht
author, if the author be not living” be interpreted- to include illegitimate children or not
1. H- adopt state family law to determine the meaning of “children” oin federal statute-
b/c child would be an heir of the author, he’s included in children here.
2. Rationale-
a. What was the purpose of copyright statute- to create definition for word
children, or to regulate copyright laws of nation.
31
i. If you believe congress legislates in specific areas (like copyrights),
and can’t think of everything, then using state law to define children is
fine. Federal law wasn’t meant to determine if bastard children are
children. State law meant to fill in the gaps around major areas where
Congress has acted.
II. Federal Common Law
a. Rules
i. General rule- absent conrolling federal law, the applicable law is state law. But federal
common law can displace state law where federal law governs the rights and duties of the
US.
b. Basic questions about Federal common law
i. Why should we have federal common law?
1. J. Douglas (Clearfield)- Rights and duties of US governed by federal law- source of
originating law
2. J. Jackson ( D’Oench, Dhume & Co. v. FDIC)- congress cannot anticipate every
possibility, so federal courts must be invested with some law-making power in order
to fully implement the federal law.
ii. Why shouldn’t federal courts make federal common law?
1. Federalism/10th A- States retain all lawmaking power that hasn’t been assigned to the
federal govt. States are represented in the federal lawmaking process, but not in the
federal judicial process
2. Limited Federal govt- no constitutional basis for federal courts to make up federal
common law
3. Separation of Powers- only Congress has the lawmaking power, not ethe courts.
Counterpoint- the power to interpret the law carries with it the power to craft common
law- part of the judicial power, and constitution doesn’t specficially prohibit the
judiciary from amking law.
iii. How should federal courts make common law?
1. Look at state law
2. General legal principles
iv. Effect of federal common law of Clearfield trust variety- federal law, supreme and binds
state – if state court hearing the case, must apply the federal common law.
c. Evolution of When Federal Common Law can be Created:
i. Clearfield Trust Co. v. US (USSC 1943 Douglas)- During the depression the US wrote a
check to Barner, but it was intercepted by someone else and used to buy something at JC
Penney. JC Penney signed it over to CLearield Trust, which then turned it over to the US
Treasury office with a guarantee that the prior endorsements were valid. US sued Clearfield
for giving them a forged endorsement with a prior guarantee. Clearfeild responded that
under PA state law, the US should be barred from recovery because it unreasonably delayed
in giving notice of the forgery to Clearfield.
1. H- Federal common law should goven here because the federal agency was acting
pursuant to a federal statute and the federal law must be uniform to ensure a clear
understanding the US rights and duties. Court makes up a rule drawing on general
commercial law stating that the dealy can be a defense but then the party must show
that the drawee’s delay in notification damaged him.
2. Clearfield federal common law rule- When US writes a check, an intermediate bank
can use the US failure to given prompt notice of the forgery as a defense, but the bank
must prove the delay caused the bank damage.
ii. RIGHTS AND DUTIES OF US- US v. Kimbell (USSC 1979 Marshall)- US(via SBA) lent
money to a private party, took a lien out on the property, party failed to pay the money and
32
the US and other parties try to get the money back. Issue is whose lien has priority- which
law to use? State law = first in time gets priority; federal tax lien rule= first in time, but
nonfederal laons must be choate (judgment ofr particular $ amount)
1. Kimbell rule- In federal courts, federal law does govern where the rights and
duties of the US are involved, but that federal law doesn’t always have to be
uniform and in some cases the federal common law rule can be to apply the state
law rule. Three-prong test for when a new federal rule should be created vs just
applying state lwa:
a. Need for uniformity- want to see concrete evidence that uniformity
needed
b. Would state law frustrate the objectives of the federal program?
c. Would applying federal law disrupt private commercial relationship?
KEY FACTOR
2. Applying Kimbell rule here- use state law
a. Need for uniformity- SBA already conforms to state law, not persuasive.
b. Frustration of objectives of program- consensual lien like the one here means
that SBA able to check the creditworthines of the loan recipient; tax liens-
involuntary, more important than SBA loans.
c. Disruption of private commercial relationship- state businessmen conduct
business in reliance on state law and unfair to force to play by different rules.
iii. OTHER FEDERAL INTEREST- Boyle v. United Technologies Corp (USSC 1988 Scalia)-
Marine dies in helicopter crash, dad sues Sikorsky (contractor) in federal court- garden
variety tort action (negligent design) between private parties. Under Kimbell, would expect
state law to govern the result (probably would favor the ∏).
1. H- Federal contractor defense in tort actions in federal courts applies: 1) US
approved reasonably precise specs, 2) equipment conformed to them, and (3)
supplier warned the US about dangers in use of equiprment that were known to the
supplier but not to the US. Court changes the the Kimbell test: In cases between
private parties, where there is a (1) uniquely federal interest and (2) a significant
conflict exists between an identifiable policy or interest and the operation of state
law or the application of state law would frustrate specific objectives.
2. Applying the test here:
a. Unique federal interest- pass-through effect of imposing liability on military
Kr impacts the cost of the US military (no bids or higher K costs to account
for it).
b. Significant conflict- don’t want the govt decisionmakers influenced by specter
of tort liability, direct or indirect tort liability- here once the federal govt for
important federal reasons makes decisions for military reasons, don’t wnt to
let state law undermine it.
3. Brennan dissent-
a. Federal interest onlhy when US is a party, not when it’s indirectly affected.
b. Pass-through assumption is speculative- no matter where you impose liability,
everything hits equilibrium. Giving federal Kr defense might affects person’s
decision to join army, might have to pay soldier more to assume risk of bodily
harm.
c. Congress has chosen NOT to asdopte Military Kr law- fed court cshouldn’t be
doing this.
4. End result- Brennan and Scalia flipflop on desirability of federal courts making
federal common law. Probably b/c Brennan wants to see the little guy here win and
can only do that via the state tort law.
33
5. Views of the military Kr rule
a. Court’s vision of military engineering experts suspect- military really not
telling the contractor what to do.
b. Very unusual case- USSC doesn’t usually invent common law rules in cases
just slightly touching on federal interests.
d. Express Instructions to create federal common law
i. Rare, but can happen: Fed Rule of Evidence 501. But still cannot intrude into areas reserved
to the states.
e. Implicit Instruciton to create federal common law- PERCEIVED PURPOSE OF THE
JURISDICTIONAL PROVISION
i. Textile Workers v. Lincoln Mills (USSC 1957 Douglas)- Under the collective bargaining
agreement in place, mandatory arbitration clause, but employer refused to arbitrate upon the
union’s request. Union sued Lincoln Mills in federal court to force them to arbitrate
1. H- Congress implicitly instructed the federal courts to create federal common law to
compel the employer to arbitrate through the jurisdictional statute (§ 301 LMRA).
2. R-
a. Perceived purpose of the jurisdictional provision
i. Federal actions- perceived purpose of granting the federal courts
jurisdiction is to make arbitration agreements enforceable against
employers (contradicts common law) Relies on the §301(a) leg
history- usual processes of law; Fed policy- fed courts should enforce
agreements on behalf of unions.
ii. Diversity actions (28 USC 1332)- perceived purpose is to create
neutral forum.
f. Statutory interpretation and FEdreal Common Law
i. Where does statutory interpretation end and making common law beging?
III. Rights of Action- Difference between conferring jurisdiction and creating cause of action!
a. Where courts will create private rights of action- federal statute imposes rule of conduct, person
violates statute and harms anoterh private party. No explicit cause of action, but can the court imply
a private right of action?
b. Issues at Stake in this debate – will injured party get a remedy?
i. Centralized enforcement (Sandoval promotes)- injured private party must convince govt to
bring suit. Hard to do b/c 1) resource limitation and 2) executive hostility to enforcing the
law.
ii. Decentralized enforcement (Rigsby)- any injured party can bring suit (Private AG); may
compel compliance with the law; might have overcompliance (economics)
c. Implied rights of actions don’t apply when suing govt officials:
i. 42 USC § 1983- general cause of action when party under color of state law violates and
individual’s federal rights
1. does the federal law create a federal right?
2. Has the right been violated
ii. 5 USC §702 (APA)- “a person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency citon within the meaning of a relvant stuate, is entitled to
judicial review thereof.”
d. Consider effect of assuming that unless Congress explicitly says there is NO private right of action,
there is a right of action- can still screen using ZOI; promotes private AG enforcement.
e. Overall Chart:
Classic 4-Factor Intent/4-Factor Intent Zero-factor
Case Rigsby, Cort v. Ash CAnnon Sandoval- Scalia in
Case v. Borak THIS IS THE Thompson
34
CURRENT
TEST!
Benefits Aggressive Respects Clear-
protection of congressional eliminates
federal rights intent problem of
reading tea
leaves
Leaves policy
determination to
Congress, not
courts
Costs Judicial Malleable- how
lawmaking to decide
congressional
intent?
f. Classic Approach- Ubi Jus, ibi remedium/ Zone of interest

i. Texas & Pacific RR v. Rigsby (USSC 1916 Pitney)- ∏ = RR switchman, fell off of RR car
b/c of a broken handrail while he was moving cars within the state, he sued RR in federal
court based on federal statute (required safety protections like handrails, etc). Fed statute had
not private right of action- only enforcement mechanism was for the govt to bring penal
action against RR if the RR didn’t comply with certain safety features.
1. H- Desptie lack of express language, Congress intended to provide for the safety of
employees in passing this act, so it implicitly created a private cause of action.
2. Rigsby Test
a. Did statute create a right intended to benefit certain class of people?
b. If so, does ∏ belong to that class of people?
ii. JI Case Co v. Borak (USSC 1964 Clark)- HIGHWATER MARK OF CLASSIC
APPROACH; BROAD STATEMENT OF JUDICIAL ROLE. ∆ circulated proxy
agreement prior to shareholder meeting to work on a merger; ∏ = owns shares in ∆. ∏
alleged that proxy statement was false and misleading. Statute- Securities Exchange Act
§14(a) made it unlawful for any person to circulate proxy agreement in violation of SEC
rules and regulations. §27 of SEA grants federal cours jurisdiction of violation of statute and
rules and regs made under it and of all suits brought ot enforce the act and rules/regs. SEC
regulation prohibited circulating false proxy statement like this. Issue is whether §27(a)
creates an implied right of action for a private party to sue another person for violation of
SEC regulations or if it just allows jurisdiction over SEC enforcement efforts?
1. H- Jurisdictional statute creates an implied private right of action because the
whenever Congress passes a statute that sets rules of conduct and conferes rights, it’s
up to the courts to determine the remedy appropriate to protect those rights. Here,
private enforcement (private AGs) necessary to enforce this rule b/c the SEC didn’t
have the resources to enforce it.
g. Four- Factor Test- Reduction of federal courts power to imply private right of action
i. Cort v. Ash (USSC 1975 Brennan)- Corporation violated 18 USC § 610, which banned
corporate contributions to political campaigns; statute provides for criminal sanctions (fines,
prison). ∏ = corporation SH, sued company alleging that §610 created cause of action for
SH derivative suit (corp actions wasted company resources).
1. H- No private right of action created by §610 because the primary purpose of the
statute was to protect integrity of the election process, not to protect SHs (state
corporate law does that).
35
2. New four-factor test- ASK KATE
a. ∏ part of class that Congress intended to specially benefit through statute
enactment?
b. Explicit/implicit Congressional intent to create a remedy?
c. Would remedy sougth by ∏ effectuate primary congressional goal in enacting
statute?
d. Is cause of action traditionally relegated to state law?
3. Differs from Rigsby- no longer just asking if Congress intended to create a right that
would benfit class of person to which ∏ belongs. Now have to ask whether Congress
intended to create a remedy, if that remedy will further congressional goal of staute,
and whether state law should just be used.
h. Intent/Four-Factor Test
i. Cannon v. University of Chicago (USSC 1979)- ∏ sued university for sex discrimination
based on Title IX (prohibits sex discrimination by universities receiving federal financial
assistance).
1. H- Implied private cause of action to enforce Title IX.
2. New approach- use four factors to determine whether Congress intended to make
remedy available to special class of ∏s. Squaring this with Cort v. Ash- 1. Look
and see if Congress said anything about intent to crate remedy. IF not, use remaining
three factors to figure out he intent.
ii. Touche Ross v. Redington (USSC 1979)- No private right of action to enforce §17(a) SEA
(rreuqired companies to file annual reports with SEC). Seemed to reduce the inquiry to
whether Congress intended to create the private right of action.
iii. Thompson v. Thompson (USSC 1988)- contradiction of TOuche- “focus on congressional\
intent does not mean that we require evidence that Members of Congress, in enacting the
statute, actually had in mind the creation of a private cause of action.”
i. Intent – Did Congress intend to create private remedy (this is the new test)!!
i. Alexander v. Sandoval (USSC 2001 Scalia)- AL Dept Transportation gave driver’s license
test only in English. AL DOT gets money from federal DOJ and DOT. §601 Fed civil rights
act prohibits discrimination on grounds of race, color, national origin by any program
receiving federal funds; §602 authorizes DOJ/DOT to issue rule/regs to effectuate §601.
DOJ reg forbid funding recipients to use methods that have the effect of subjecting individs
to discrimination. ∏ (class rep) sued AL for violating DOJ reg b/c English-only policy had
the effect of discriminating aginst non-English speakers bsed on national origin.
1. H- Test for determining if a federal law provides a private right of action boils down
to ONE factor- Did Congress intend to create a private remedy?
2. Clear refutation of Borak’s view that Congress creates rights, courts crate remedies.
Here, Congress creates rights AND remedies.
3. Analysis for finding legislative intent
a. Text- If statute language focuses on the party to be regulated, it suggests that
Congress did not intend to create a private cause of action.
b. Structure- elaborate enforcement structure indicates Congress only meant to
allow govt to enforce the statute.
j. Zero-Factor Test- Never adopted
i. Thompson v. Thompson (Scalia concurring)- If Congress remains silent about a private
remedy, assume that there is NO implied right of action. Rationale is that it is unlikely that
Congress would have intended to create a private cause of action, but not explicitly stated it.
Courts more likely to mess up in implying private cause of action.
36
Part VI – Federal Jurisdiction - Intersystem
I. Theoretical/Practical issues
a. Theoretical- Each time place something within federal court jurisdiction, potentially remove it from
state jurisdiction. Sensitive to concerns about federalism
b. Practical-
II. Judicial Power under Article III- CONSTITUTIONAL BASIS for fed juris
a. Basic rules-
i. Ingredient theory- Any case that has a federal question in it anywhere (∏’s case, ∆’s answer)
if a federal question case for purposes of Article III, and Congress can decide to place it
within the statutory jurisdiction of the federal courts.
ii.
b. Osborn v. Bank of the US (USSC 1824 Marshall) – Ohio levied tax at banks without state charter
(really just the federal bank), but Bank didn’t apy and sued state officials to enjoin the tax. Osborn
told tax collector to collect the tax, which he did by force.
i. H- Case was properly within the federal judicial power because the case had a federal
question in it somewhere.
ii. Rationale-
1. Textual- Art III, §2- Judicial Power of US SHALL extend to “all cases in law and
equity arising under” federal law.
2. Practical reasons
a. Most cases are a mix of federal and state law questions because federal law
rearely governs all aspects of the case. Therefore, if you required a case with
any state law issues to go to state courts, that would gut federal courts power
to hear cases.
b. Don’t want the federal courts just deciding federal questions in isolation-
c. My reason- if we trust state judges to apply federal law, we should trust
federal judges to apply state law.
iii. Dissent- Disagrees with idea that mere possibility of a federal question coming up would be
enough to send it to fed courts. Must start the case in state court, then remove to federal court
if a federal question presents itself
iv. Osborn’s stautotry interpretation- Bank’s incorporation act said Bank “able anc capable in
law to sue and be sued in federal courts.” Marshall interpreted this to mean that federal court
has jurisdiction over all cases in which the bank is a party. Johnson thinks this just means
that the bank is a juridical entity, not that compelte jurisdiction vested over all actions.
c. Planters Banks (1824 USSC )- Contractual dispute between US Bank and private banks- purelty
state law issue, but Bank of US sues in federal circuit court. Marshall says that Osborn governs-
seems to indicate that wherever a feeral question might arise that would be enough to support federal
jurisdiction.
i. Problem with view- federal courts are courts of limited subject matter jurisdiction; allowing
fed court juris over case that hasn’t yet presented a fed question and isn’t diverse usurps state
jurisdiction.
ii. Bellia debunk- AT the time of this case, corporation have to prove their corporate existence;
here, the Bank of the US would have to introduce its federal charter to prove that it was able
to sue Planters Bank
d. Protective jurisdictions
i. Textile Workers Union of America v. Lincoln Mills of AL (USSC 1957)- §301 Labor-
Managemetn Relations Act grants federal jurisdiction over any suit arising out of collective
bargaining agreements between union/employer. Majority holds that §301 implicitly instructs
37
fed court to create federal common law governing collective bargaining agreements,
converting this suit into an ARISING UNDER federal law suit.
1. Protective jurisdiction- If Congress could create the governing law, but chooses to
allow state law to govern, Congress can still create federal jurisdiction in order to
protect one of the parties from unfair state courts. KEY POINT- CASE DOES NOT
DECIDE WHETEHR PROTECTIVE JURISDICTION IS CONSTITUTIONAL.
2. Frankfurter dissent- Protective Jurisdiction like this is unconstitutional because the
Constitution already anticipated the need for protective jurisdiction in certain
situations and created diversity jurisdiction to solve that problem. Constitution
doesn’t authorize this other form of protective jurisdiction.
a. Counterpoint- In cases like this, Congress (via Commerce Power) can create
the federal law to govern. Congress could say the Collective bargaining
agreements will be governed by federal law, and that federal law will be the
state law that would normally apply. Does seem a little tricky, but we allow it
in other case.
ii. Mesa v. California (USSC 1989)- federal employee charged with crime, could only remove
under 1442 if she had a federal defense, but she only alleged that she didn’t commit the
crime.
1. H- 1442 ONLY applies where ∆ raised a federal defense b/c to do otherwise would be
to allow cOngress to create protective jurisdiction.
2. Brennan concur- 1442 should apply where fed officer not asserting fed defense but
claims that charge motivated by state hostility to fed officer’s function.
3. Comment- unclear if Congress could create protective jurisdiction in this scenario-
just the spectre of hostile state courts probably not enough.
III. Statutory Jurisdiction- STATUTORY BASIS for fed juris
a. Well-pleaded complaint rule- Mottley
i. Rule- Under §1331, a claim arises under federal law only if the ∏s cause of action raised the
federal question. Corollary- A ∆ in a state law case may only remove to federal court if the
federal court could have had original jurisdiction over the case.
ii. Louisville & Nashville RR v. Mottley (USSC 1908 Moody)- Mottleys (KY) were injured
while on train; released the RR (KY) from liability in exchange for receiving free RR passes
for the remainder of their lives. ∆ RR stopped giving out passes and ∏s sued for breach of
contract. ∆ alleged that it stopped giving out passes b/c federal Act forbid giving free passes.
Nondiverse parties, complaint alleged state law breach of K claims, defense was a federal
issue. Do federal courts have statutory jurisdiction? 28 USC §1331: “The district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” Issue here is what does arising under mean
1. H- For purposes of §1331, a claim arises under federal law only if the ∏s cause of
action is based on federal law.
2. Rationale- Respects federalism by preventing federal courts from having jurisdiction
over what ends up being a purely state law case.
3. 28 USC §1441- Removal statute- Why can ∆s only remove cases that could have
originally been brought in federal courts? Two views
a. Wechsler- rule should be to allow removal to ∆s once they assert a federal
defense against ∏’s state claim and to ∏s once they assert a federal right.
b. Posner- Respect for federalism- prevent ∆s from raising meritless federal
defenses just to remove. Present the right incentives
iii. Declaratory Judgments
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1. DJA- In case of actual controversy within its jurisdciciton, any court of US may
dclare rights and legal rlations oaf any intereste party seeking such declaration,
wehterh or not further relief is or could be sought.
2. Rule- In declaratory judgment actions, DJA doesn’t’ alter federal statutory
jurisdiction- what would they get for relief if they weren’t asking for a declaratory
judgment?
a. Are they just using the DJA to create jurisdiction?
3. Skelly Oil v. Phillips Petroleum (USSC 1950 Frankfurter)- ∏/∆ has gas purchase
contract conditioned on issuance of certification from federal agency. ∆ tried to
terminate contract b/c certificate not issued, but ∏ borugth declaratory judgment that
K enforceable.
b. State Law Incorporating Federal Law
i. Issue- Mottley requires that there be a federal question in the ∏’s original claim, but many
state law claims incorporate federal questions. When does a state law claim incorporate
enough federal law to be considered a federal question sufficient to get into federal court?
ii. American Wellworks v. Layne & Bowler (USSC 1916 Holmes)- ∏ sued AWW in state court
for libel and slander (AWW claimed ∏’s pump violated its patent). ∆ removed to fed court
b/c case arose under federal patent law.
1. H- If state law creates your cause of action (here, libel and slander done in the state),
it’s irrelevant that federal law kicked off the dispute. “A suit arises under the law that
creates the cause of action”
iii. Smith v. Kansas City Title & Trust CO (USSC 1921 )- ∏ (SH) sued to prevent ∆ from
investing in bonds issued by federal banks under authority of Fed Farm Loan act on the
grounds that fed statute authorizing bond issuance was uncosnittutional and the bonds were
illegal and void. USSC considered federal jurisdiction sua sponte
1. H- Case arose under fed law b/c ∏’s rights depende on constitution.
2. Smith rule – Even if the cause of action is created by state law, if the underlying right
depends on a question of federal law, the case arises under federal law for purposes of
§ 1331.
3. Holmes dissent- cause of action rises entirely under Missouri law- It is the SUIT not
a question in the suit that must arise under th lw of the US.
iv. Moore v. Chesapeake & O Ry (USSC 1934 Hughes)- ∏ sued employer (RR) in fed court
based on work injury. ∏ sued on a state statute (KY Employer’ Liability Act), which
prevented RR from asserting assumption of risk or contrib. neg defenses if the injury resulted
from ∆’s failure to comply with state or federal safety statutes. ∏ alleged that his injury
resulted from ∆’s failure to comply with federal safety appliance Act
1. H- No federal jurisdiction b/c the cause of action was a state law cause of action;
federal statute just prescbied duties
v. NEW RULE- Merrell Dow Pharmaceuticals Inc v. Thompson (USSC 1986 Stevens)- ∏s
sued Merrell dow on state law tort claim alleging that Bendectin was misbranded in violation
of FDCA (no warning about birth defects). Merrell Dow tried to remove the case to federal
court (state courts bad for big company tort claims).
1. ARgumets for and against federal juris:
a. State law claim- underlying cause of action is a state tort claim. Violation of
the federal statute duty to properly label drug simply creates presumption of
negligence that can be asserted in your state law claims.
b. Federal law claim- the FDCA creates a federal right to have the drug properly
labeled; because the state law claim incorporate and underyling federal right,
it’s really a federal cause of action.
39
2. New Merrell Dow test: A complaint alleging a violation of a federal statute as an
element of a state cause of action does not state a claim “arising under” federal law
for the purposes of §1331 when Congress has decided that there should be no private
federal cause of action based on the violation.
3. Rationale- if Congress didn’t want private cause of action, that meant it wanted
centralized enforcement of the act, not private suits by private citizens.
4. Brennan dissent/Siegel’s counter- If Congress wanted centralized enforcement,
makes more sense to at least put these types of cases into federal courts (more
centralized than state courts) rather than allow different state laws to prevail. Siegel
thinks the Holmes test should apply.
vi. Grable & Sons Metal Products v. Darue Eng. & Man (USSC 2005 Souter)- IRS seized
GRable’s property, sold it to Darue. Grable filed state court quiet title action claiming IRS
sale invalid b/c IRS dind’t comply with federal notice statute. Darue removed to fed court.
1. NEW THREE PART TEST- Federal jurisdiction appropriate if:
a. State law claim MUST raise a federal issue
b. Federal issue must be actually dispute and substantial AND
c. Federal forum can hear the issue without disturbing any congressionally
approved balance of federal and state judicial responsibilities
i. Policy factor- would in increase the number of cases doming into fed
courts?
2. H- In this case, federal jurisdiction appropriate b/c federal issue necessary and
actually disputed and substantial (whether IRS taking Grable’s property was invalid
will determine if Grable had the superior title in the state law action) & this won’t
open the gates to huge amounts of cases in federal courts
3. Thomas concur- Just use holmes- look at the cause of action!
4. Siegel- new test is bizarre- court shouldn’t be able to turn down cases just because it
would generate too much work.
IV. Supplemental Jurisdiction
a. Definition- Supplemental jurisdiction is the ability of the federal courts to hear state law claims
between nondiverse parties once the federal law claim has been dismissed
b. Consitutional Basis
i. United Mine Workers of America v. Gibbs (USSC 1966 Brennan) – Gibss sued his labor
union (nondiverse parties) in federal court based on two claims: 1) federal law claim and 2)
state tort law claim (interference with econ relationship). Jury finds for Gibbs on both
claims, but court enters the JNOV for the ∆ on the federal claims
1. H- Federal court has the discretion to hear the leftover state claim.
2. Rationale-
a. Osborn doesn’t help- just one claim with two issues; here, there are two
separate claims, which could be easily separated.
b. Judicial economy- doesn’t make sense to have two separate proceedings to
deal with claims arising out of the same events.
c. FAirenss to litigants- don’t force litigatnts to get inconsistent state/federal
verdicts
3. Constitutional basis- CASE in article III is broader than a CLAIM- case includes
multiple claims. Art III grants federal courts the judicial power over CASES- as long
as a federal claim is in there, federal court constitutionally has jurisdiction.
4. Gibbs test for multiple claims as part of same CASE:
a. Federal Claim in the case
b. Claims arise from common nucleus of operative fact (key factor) AND
c. Claims are such that they would normally be tried together.
40
5. Rationale-
a. judicial efficiency anf fairness- not quite, could bring both claims in state
courts, where state court would have to apply federal law to federal claim.
b. Fed courts are superior in interpreting federal law
ii. Case law development leading to §1367
iii. 28 USC §1367- Supplemental Jurisdiction- codifies Gibbs- GET CIV PRO OUTLINE
STUFF IN HERE!
iv. Exxon Mobil v. Allapttah Services (USSC 2005)- 1367 provides federal jurisdiction over
claims of unnmaed class members. Does away with problem if named class member met
diversity requirements but other unnamed plaintiffs don’t.
41
Part VII – Lawsuits Against the Government
I. Suits Against the Federal Government

a. Rule of Immunity
i. Basic rule- Cannot sue the federal government without the Government’s consent.
Congress has absolute discretion to give that consent
1. Schillinger v. US (USSC 1894 Brewer)- ∏ sues federal governemtn for wrongful
use of patented invention. ∏= patent for concrete pavement improvement. US
entered into contract with another party who laid concrete pavement in way that
infringed ∏’s patent. USSC dismissed the case based on federal sov. At time of
case, Congress only consented to be sued on contracts- 1) encourage people to do
business with govt, 2) unlike torts, govt can plan for being sued on contracts.
ii. Theories of Sovereign Immunity-
1. Constitutional Theory- NO TEXTUAL CONSTITUTIONAL BASIS FOR
FEDERAL SOVEREIGN IMMUNITY! Article III, § 2 implies that federal
government can be sued because it grants fed court jurisdiction over cases wehre
US is a party.
2. Holmesian Theory- practical enforcement problem
a. Sovereign is the entity that makes the laws and is entitled to say it’s not
subject to the law. Even if the sovereign breaks the law, the sovereign
enforces the law, so practically, can only enforce the law against the
sovereign if it allow sit.
b. Huge problem with theory- assumes monolithic federal govt; not tripartite,
coequal branches of govt
3. Hamiltonian Theory- theoretical abstract problem
a. “Inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent.” Contracts with the sovereign have no
pretensions to a compulsive force.
4. Public Policy Theory- Don’t want govt constantly stopped in its tracks as tries to
implement programs.
a. Price v. US (USSC 1899 Brewer)- Indians stole cattle from ∏; ∏ sued the
govt for actual damages (cattle stolen) and consequential damages (loss he
incurred by having to sell his goods and wagons at a loss). Govt assumed
liability for property of citizens taken or destroyed by the Indians. Unlike
Schillinger b/c no intentional act on the part of the government (govt
didn’t cause the harm).
i. H- Where the sovereign has agreed to take on gratuitous liability,
cannot sue them for more liability than they have voluntarily
assumed.
b. Larson v. Domestic & Foreign Commerce Corp (USSC 1949)- “The
Govt as representative of the community as a whole, cannot e stopped in
its tracks by any ∏ who presents a disputed question of preoptery or K
right.”
5. It’s always been this way Theory
a. US v. Lee (USSC 1882)- “While the exemption of the US and of the
several states form being subjected as defendants to orindary actions in the
courts has been repeatedly asserted here, the principles has never been
discussed or the reasons for it given, but it has always been treated as an
established doctrine.”
42
b. Muskopf v. Corning Hospital District – Mystery of legal evolution how
sorveiegn immunity transformed from a rule that allowed the king to grant
belief to a rule that barred ∏s from compensation for injuries caused by
the govt.
c. Jaffe- Transferring sov immunity from English monarch system to US
federal legislative system perverted the concept.
iii. Large corporation v. Govt- why can we sue corporation without its consent?
Criteria Govt Large corporation
purpose  Public responsibilities, even thogh  Profit-seeking, no public
economically inefficient responsibilities
Availability of No substitutes Many subsittutes
substitutes?
Political accountability Very- people vote none
Burden of lawsuit Taxpayers bear the burden Company/shareholders bear burden
How injured party Caused the injury Caused the injury
views them
How entity acts Through agents Through agents
iv. What happens without sovereign immunity?

1. Flood of litigation?
2. Constitutional amendment?
3. Continue as is- eliminate the fiction of nonstatutory review?
v. Pros/Cons of federal sovereign immunity
GOOD BAD
 Consistent with democracy- prevents courts from  Gov tofficeal snot subject to same laws as regular
interfering with political direction of govt. citizens
 Prevents enormous claims from being lodged  No justice- no redress for injuries if govt injures
against govt. you
 Encourages govt service if officials can be  Prevents accountability
immunized.  Inconsistent with democracy- remnant of
monarchical society
 Congress can statutorily confer immunity- should
start with NO immunity.
b. Methods of Avoiding Federal Sovereign Immunity

i. Traditional Methods- Nonstatutory review (Remedial imperative)
1. Theoretical Underpinning
a. Doctrinally- can distinguish between the govt and officer of the govt
(Officer suit fiction)
b. Judicially-created remedy
c. Purpose- fulfil remedial imperative- unjust to have rights with no remedies
d. Procedure- mandamus (court order to gov to do something) or via Lee
case (application of regular common law actions to govt agent).
2. Cases
a. Marbury v. Madison- Marbury allowed to sue Madison b/c officers do
not have the same immunity as the government. When officers cause the
injury, they come before the law like any other private party.
b. US v. Lee (USSC 1882 Miller) – US imposed tax on Lee’s wife, when she
couldn’t pay the tax US confiscated the land and made it into a US fort.
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Lee heirs sue the administrators of the fort/cemetery on common law
action of ejectment (trespass). ∆s argue that they have fede soverign
immunity.
i. H- Ejectment granted. No sovereign immunity because suit is not
against the government, but against the individual officers, so can
pretend it’s a private dispute. Motivation- remedial imperative
ii. Theory- Officer Suit Fiction- The govt is incapable of doing
anything illegal, so if an officer of the govt does something illegal,
he is stirpped of his officer status and treated as a regular
individual. “No man in this country is so high that he is above the
law. No officer of the law may set that law at defiance with
impunity”
iii. Dissent- Officer suit fiction is disingenuous because the govt as an
abstract entity can only act through its officers. When you order
an officer to do something, even in individual capacity, ordering
the govt to do something. Only works in this case b/c the officers
in their individual capacity were trespassing.
iv. In subsequent suits, no res judicata if govt sues b/c it wasn’t a
party.
c. Youngstown Sheet & Tube (Steel Seizure 1952 DDC)- Truman ordered
Sec. Commerce to seize steel mills in order to prevent strike from
disrupting steel during Korean War. Sec. comm. Issued the order. Court
held that no fed immunity b/c they sued the secretary instead of the
President. Case resembled Lee- govt took private property, owners
wanted it back.
i. Troubling implication- judicial interference in executive decisions
aobut what policies are best for country in time of war.
d. Little v. Barreme (USSC 1804 Marshall)- Captain Little seized a Danish
vessel that was actually leaving France. Under a federal act, the US
president could aurhorized US naval captains to seize shitps on the high
seas if they are sailing TO France. Captain was sued by owner of vessels
for damages, but he argued that he was just taking orders.
i. H- Captain liable for damages even though he was following govt
orders because his action violated the law.
ii. In effect, captain will be indemnified so really allowing suit
against the govt.
ii. Details of and Problems with the Traditional Methods
1. Underlying problem- Nonstatutory review fiction collapses once you try to let
people sue the govt.
2. Land v. Dollar (USSC 1947 Douglas)- Contract btn US Maritime Commission
and Dollar SHs - Commision released Dollar SHs from obligations and agreed to
get money for Dollar in exchange for common stock in Dollar. After ∏s paid off
all of their debt, they wanted their stock back from the Commission. Commission
refused to return stock, stating that it was an outright transfer not a temporary
collateral pledge. ∏s sue members of the commission in federal court go get
stock back (common law right to recover possession of specific property
wrongfully withheld- tort action).
a. H- Case may proceed against the members in their individual capacity as
tortfeasors.
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b. Reed concurrence- Paradoxical application of nonstatutory review- court
may proceed against the members of the Commission in their individual
capacity for wrongful possession of the property, but the only way to grant
relief to the ∏s (get their stock back) is to order the ∆s to act in their
official govt capacity.
3. Gnerich v. Rutter (USSC 1924 Van Devanter)- Statutory scheme- National
Prohibition Act allows IRS cmmr to prescribe regulations to carry act out and to
designate agent to do the act for him. Act prohibited mft sale of alcohol for
beverage purpose; required pharmacists to get permits to sell medicinal liquors.
Prohibition cmmr (agent of Cmmr) can issue and sign permits to sell medicines
and local prohibition direct t oisses and sign permits. ∏s sued local directors to
prevent him from enforcing a restriction intheir permits that limits how much
alcohols they can purchase.
a. H- Dismisses case b/c the national IRS cmmr is a necessary party and the
local director is just an agent
b. R- local agent just a private ∆, allowing suit against him deprives the IRS
cmmr of his right to defend the regulations. But, the same lawyers would
defend the Cmmr as would defend the local guy.
c. A little unclear.
4. Secretary v. McGarrahan (USSC 1869) – ∏ sued SEcrtary of Interior seeking
order directing SE to issue him a land patnet. During the case, Secretary replaced.
a. H- Dismiss case and refile suit b/c the INDIVIDUAL originally sued no
longer there. To go along with fiction that suing person in individual
capacity, cannot just continue the suit because you’re ignoring the govt
affiliation.
5. Larson v. Domestic & Foreign Commerce Corp (USSC 1949 Vinson) – During
WWII, govt agrees to sell surplus coal to DFCC, but Govt reneged on its contract
and sold the coal to other people. ∏s sued, not for damages, but for an order for
the govt to give them the actual coal.
a. H- Case dismissed. Nonstatutory review can only be used where ∏
alleges that the govt official has acted unconstitutionally or in violation of
a statute. Otherwise, because of agency law principles, liability runs to the
principal, which means you’re really suing the sovereign, and unless sthe
sovereign has consented, suit cannot proceed.
b. Impact- carved out a huge exception for nonstatutory review.
iii. The Resolution- 5 USC §702- APA
1. 5 USC § 702- “a person suffering legal wrong beause of agency action, or
adversely affected or aggrieved by agency action within the meaning of a relevant
statute, is entitle to judicial reviewe thereof”
a. Limitations- only waives immunity for cases seeking relief OTHER
THAN MONETARY DAMAGES (injunction to tell govt to do or stop
doing something).
2. Tucket Act- Can sue federal govt on contract claims (allows monetary damages)
3. Federal Tort Claims Act of 1946- Waives immunity from tor actions but there are
a bunch of exceptions, notably the discretionary function exception (no wiaver if
govt official committed tort while carrying out his official functions) and flood
control exception.
II. Suits Against the States-
a. Basics of State Sovereign Immunity
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th
i. USSC rule- 11 A bars federal jurisdiction over suits against states based on federal
question and diversity (including admiralty) unless the state consents to be sued in federal
court.
ii. How to Interpret the 11th A
1. Literal Understanding- 11th A bars suit by diverse party against state on both fed
questions and diversity grounds, but does NOT bar citizen of same state from
suing on the basis of a federal cause of action. 11th A does not bar suits by diverse
or nondiverse parties on admiralty/maritime claims.
a. Problem- not exact literal meaning
2. Diversity Understanding- repeals diversity jurisdiction provisions of Article III, §
2 to the extent that the state is an unwilling ∆.
3. Official Theory- THEORY APPLIED BY THE US!!!
Theory Good Bad
Literal- NOT FOLLOWED by SIMPLE Ignores context, not nuanced-
USSC- Bars ALL suits against states Respects the COnstitution intentionalism problem
by citizens of other states, but allows Anomalous result- real reason
state citizens to file federal question why nobody agrees with this
claims.
Diversity (never got 5 votes)- Justice Textural inconsistency- ignores
repeals federal jurisdiction over literal text “ANY suit in law and
diversity cases against states, but has equity”
no effect on federal question cases Precedent
(citizens AND noncitizens can sue
state on federal questions)
Official-THE LAW- 11th A bars all Ignores the text Justice problem- leaves wrongs
suits against states (diversity/federal Simple- See Edelman discussion unremedied
question, citizen/noncitizen) without Consistent precedent Inconsistent with Holmesian
state consent. theory- enforcement is available,
fed govt can tell states what to do
Textual inconsistency
Limits Congress
iii. How are states similar to fed govt?

Same as Fed govt Different than Fed govt
 Politically directed, public responsibility, nonprofit  Holmesian view
 Democratic government o Practical- can use federal govt ot enforce
 Justice federal law against the states.
 Enormous climas  Explicit constitutional text- Art III, §2; 11th A
 Holmesian view- cannot sue states on law state  Federalism- fed sov immunity is about separation
made of powers; state sov immunity aobut federalism.
Scalia- purpose of 11th A is to protect states.

iv. How should sovereign immunity work? See Amar- focus on enforcement
1. State sov immunity
a. Federal question- No sovereign immunity b/c state doesn’t make that law,
fed govt can enforce against the states.
b. State law/Diversity- states make state law so okay if they claim immunity
2. Federal sov immunity
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a. Suits under COnsituttion- people are the sovereigns that created the
constitution, so okay to sue the fed govt.
b. Suits under statutes- Congress/fed govt made this law, so can claim
immunity
b. The Provocation
i. Chisholm v. GA (USSC 1793)- ∏ (SC citizen) sued GA for breach of promise in federal
court.
1. H- GA could be sued for breach of contract in federal court despite its lack of
consent to the act
2. Rationale (Jay/Wilson)
a. Text- Article III, § 2- “The judicial power shall extend to … controversies
between states and citizens of other states.” No explicit limitation of the
federal judicial power to situations where states are ∏s. Also, states are
able to sue each other in federal court, so clearly a state CAN be a
defendant in federal court.
b. Structural- The people of the US are the true sovereigns and they chose to
bind the states to the purpose of the Union through the Constitution. The
people have chosen to remove power originally resident in the state
(ability to not be sued without consent). State sovereignty was
irreversibly reduced by the ratification of the Constitution- Constitution is
agreement among people of US, not a treaty between the states.
c. Fairness and justice – Illogical to allow injured party to sue individual who
caused the harm, but not the state. Harm is the same. Disregarding state
sovereignty fulfils the remedial imperative.
3. Iredell Dissent (remember, Iredell helped write the Constitution
a. Disentangle jurisdiction/substantive law- Federal courts may have
jurisdiction over suits against states, but because Congress only authorized
to create laws in certain enumerated areas, in diversity cases where states
are the ∆s, federal court must apply the substantive law of the states at the
time the constitution was enacted. If the state law prevented suits based
on state sovereignty.
c. The Response
i. 11th Amendment- “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 States.”
d. The Great Debate
i. Louisiana v. Jumel (USSC)- Jumel (citizen of another state) sued Louisiana on Contracts
clause claim (federal question) . Court dismissed on 11th A grounds b/c the textual
reading of 11th Amendment- “ANY suit in law or equity” means ANY- diversity claim or
federal claim.
ii. Hans v. Louisiana (USSC 1890 Bradley) – Hans (LA) sued Louisiana in federal court
claiming that LA failed to pay amount due on coupons of state bonds. LA had changed
its constitution to declare the bonds unpayable. Hans allege state contract claim and
federal question (Contracts clause).
1. H- 11th Amendment bars a citizen of a state from suing its state on a federal law
claim in federal court.
2. Rationale-
a. General purpose of the 11th Amendment- consituttionalizes the principle of
state sovereignty
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b. Longstanding historical presumption- stats have always been sovereign
and not suable without their consent.
c. Intentionalism/Federalist papers (Hamilton, Madison, Marshall)- inherent
in nature of sovereignty not to be suable by individuals without their
consent; Article III just allows case to be heard in federal court if state
consents or wants to sue citizen.
d. Anomalous result- too strange to allow state to assert sov immunity
against diverse party (Jumel), where federal courts SHOULD have
jurisdiction, but not allow it to assert sov immunity against nondiverse
party (where fed courts shouldn’t have diverse jurisdiction).
e. Crystal ball argument- 11th A would never have been passed if this were
understood to be the result.
f. Policy argument- p. 397- good reasons not to allow case to proceed,
doesn’t discuss them.
3. Note- If applied the literal text of the 11th A, Hans should have been allowed to
sue the state in fed court b/c he is not a citizen of another state.
iii. Ex Parte New York (USSC 1921) – 11th A also prevents admiralty actions against states
without their consent. Not consistent with literal interpretation of 11th- “Any suits in
LAW AND EQUITY”
iv. Principality of Monaco v. State of Mississippi (USSC 1934)- 11th also bars suits against
nonconsenting states by foreign governments. Again, not a literal interpretation of the
11th A text, but “behind the words of the constitutional provisions are postulates which
limit and control,” which apparently means the postulate that nonconsenting states cannot
be sued.
1. 11th A also bars suits against states by corporations created by acts of congress
and Indian tribes.
v. Atascadero State Hospital v. Scanlon (USSC 1985 Powell)- BEGINS MODERN ERA
OF USSC 11th A JURISPRUDENCE. ∏ sued hospital for refusing to hire him in
violation of the federal Rehabilitation Act (he was disabled). State asserted sovereignty
defense.
1. H- 11th A bars suits against states unless the state has consented to being sued,
even on federal question cases.
2. Rationale
a. Federalism- states are he counterpoise to power of federal govt and need
sov immunity to do that.
b. Crystal ball- constitution would never have been ratified if the state were
to be stripped of sov immunity
c. Issue isn’t whether states can’t be sued, just whether they can be sued in
federal court.
3. Brennan dissent- embraces the diversity understanding- all the 11th A says is that
you cannot get into federal courts on party alignment alone if the state is the ∆,
but it has no effect on federal courts’ jurisdiction over federal jurisdiction cases.
a. Historical- Madison/Marshall comments made in the context of diversity
jurisdiction. Also, states never had sov immunity against fedral question
claims.
b. Textual- Real language of 11th A supports diversity view b/c it was a
response to the Chisholm case
c. Legislative- prior drafts of amendment much stricter.
d. Precedents- admiralty cases decided after 11th passed, court held states had
no immunity to admiralty cases.
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th
e. USSC appellate jurisdiction- if 11 A phrased as a limitation on federal
judicial power to hear cases against states, might prevent USSC from ever
hearing them.
f. Policy- unfair to allow states to get away with breaking the law.
vi. Welch v. Texas Dept. of Highways and Public Transportation (USSC 1987 Powell) –
POWELL’S RESPONSE TO BRENNAN ATASCADERO DISSENT. Welch injured
int eh court of work, but sues state under Jones Act (worker’s comp for maritime
workers).
1. H- 11th A bars suits in admiralty against the states.
2. Rationale
a. Text- 11th A bars ANY suit, including admiralty (but Powell totally
ignores the LAW AND EQUITY part that follows it.
b. Historical- Brennan misquoted Hamilton/Marshall/Madison- aren’t limited
to cases without any federal question.
c. Precedent- stare decisis is huge (Scalia concurrenc)
d. Policy- Concept of federalism is SOOO important that it demands that
state have immunity from private suit
e. Methods of Avoiding State Sovereign Immunity
i. Nonstatutory review principles apply to state officers
1. Ex parte Young (USSC 1908 Peckham)- OFFICER SUIT FICTION APPLIES
TO STATE OFFICIALS DESPITE THE 11th A. MN state law esatablihse
dmaximum rates for RRs, imposed criminal penalties. ∏s (SH in RR operating in
MN) sued the MN state AG to enjoin him from enforcing the MN statutes on the
grounds that the statutes deprived them of DP and EP and interfered with
interstate commerce.
a. H- Because the MN law was unconstitutional, and because the AG was
trying to enforce an unconstitutional law, he is stripped of his official state
cloak and becomes amenable to suit in his individual capacity. Federal
court can properly order MN AG NOT to enforce the act.
b. Impact of this case- First USSC case approving of the paradox in officer
suit fiction (simultaneously treat him as an individual and an officer of the
state). Harlan notes the pardox in nonstatutory review cases (see also
Land v. Dollar).
2. Edelman v. Jordan (USSC 1974 Rehnquist)- OFFICER SUIT FICTION ONLY
OKAY FOR PROSPECTIVE INJUNCTIVE RELIEF AGAINST STATE; NOT
FOR RETROACTIVE MONETARY DAMAGES. ∆= state official charged with
administerting federal welfare program- cooperative federalism where states
accept federal money in exchange for allowing federal govt to regulate how the
plan works. ∏ alleged that he and class of ∏s were not receiving their welfare
enefits because the state officials were not complying with the federal law.
a. H- Accepts the viability of nonstatutory review/Ex Parte Young, but only
in the context of an injunction to the state official. To the extent that you
sue the state for retroactive monetary relief, state sovereign immunity
doesn’t work.
b. Rationale
i. No fiction in damages- everyone knows the officer isn’t going to
pay the damages; you’re really suing the state.
 Retroactive monetary damages interferes with state ability
to plan
 Eviscerates state sov immunity if allow this
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 Precedent.
ii. Fiction works in injunctive/equitable relief- seems wacky b/c 11th
A applies to suits in law AND equity equally.
3. Hutto v. Finney (USSC 1978)-∏S CAN GET MONETARY DAMAGES IF
STATE OFFICIAL VIOLATES INJUNCTION; DAMAGES RETROACTIVE
TO TIME OF ORIGINAL INJUNCTION. ∏s (AK state prisoners) sued state
officials on grounds that AK prison conditions violated the 8th amendment. DL
agreed- issued injunction AND atty’s fees. State argued that atty’s fees were
inconsistent with 11th a
a. Two key rulings out of case:
i. Rule 1- If federal courts grants injunctive relief against a state
official, but state official fails to comply with injunction, the
federal court can then award the ∏ damages from the time the
initial injunction issued until the time the court awards money
damages.
 Only way to force states to comply witht the injunction;
assessing damages less intrusive than throwing official in
jail for failure to comply.
ii. Rule 2- As long as you bring a valid suit aginst he state or state
official, attorneys fees and costs are awarded and are not barred by
state sovereign immunity
f. A Few More Details
i. Pennhurst State School & Hospital v. HAlderman (USSC 1984)- ∏s = mentally
retarded citizens of PA; sued statte as violating 8th,14th, federal statutes and state statute.
1. H- Federal courts cannot use nonstatutory review to order state officials to comply
with state law because the officer suit fiction only for vindication of federal law
rights. Weird.
ii. Edelman v. Jordan- State sovereign immunity is a sufficient jurisdictional bar to
federal jurisdiction that it can be raised as a defense for the first time on appeal.
1. Criticism- BUT think about jurisdictional bars- normally they are nonwaivable.
But state sovereignty can be waived and a court doesn’t have to raise it sua sponte
(unlike SMJ)
2. Siegel-USSC may be retreating form this notion.
iii. Lincoln County v. Luning (USSC 1890 Brewer)- Subdivisions of states cannot raise
sovereign immunity.
g. Congressional Abrogation of State Sovereign Immunity
i. Basic rule- Three-part analysis:
1. Is there an express Congressional intent to abrogate state sovereign immunity?
2. If so, was the Act passed pursuant to 14§5?
a. What is the exact constitutional violation?
b. If Congress acting beyond the constitutional violation, is the prophylactice
legislation congruent and proportional to the remedial/preventive purpose?
ii. Fitzpatrick v. Bitzer (USSC 1976 Rehnquist) – 14§5 A BASIS FOR ABROGATION;
DOESN’T STATE IT’S THE ONLY BASIS. ∏ sued CT under Title VII claiming that
state discriminated against them on gthe grounds ov gender. ∏s sought monetary and
injunctive relief.
1. H- Congress can abrogate state sovereign immunity when it legislates pursuant to
it 14§5 enforcement power (does not say that 14§5 is the ONLY basis for
abrogation).
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2. Stevens;/Brennan concur judgment- Congress can abrogate state sovereign
immunity when it acts pursuant to any of its enumerated powers (here, commerce
clause).
iii. Penn. v. Union Gas Company (USSC 1989- 4-1-4)- CERCLA (fed statute) allows EPA
to clean up superfund site and recover cleanup costs form parties responsible for
pollution. EPA sued union gas, UG impleaded PA and asserted it was partially
responsible.
1. Brennan plurality (4)- If power has been carved out of state sovereignty and
Congress legislates pursuant to that carved out power, the state has no sovereign
immunity with respect to those suits.
2. White- concurred in judgment- doesn’t agree with reasoning but doesn’t say why.
3. Scalia dissent- Cannot limit the force of the 11th A based on constitutional
provisions passed before the 11th was enacted
iv. Seminole Tribe of Florida v. Florida (USSC 1996 Rehnquist) –TURNING POINT-
ONLY 14§5 CAN BE A BASIS OF CONGRESS’S ABROGATION POWER.
IGRA statutory scheme- Indian tribe wanting a casino must ask its home state to
negotiate. State’s have a duty to negotiate with the tribe in good faith. If no agreement
within 180 days, tribe can sue state in federal district court. Fed court can order state and
tribe to negotiate, but finally, secretary of interior can determine how casino will operate.
∏ sued state, state countered with 11th A sov immunity.
1. H- Overrule Penn v. UGC- state sovereign immunity bars suits against states
under statutes based on any Constitutional provision other than 14 § 5. Basically,
Congress cannot abrogate state sovereign immunity when it acts pursuant to any
Article I power.
2. R
a. Temporal argumnrt-
i. 11th A rperesetned proposition that states immune at that time, but
the 14th followed it later in time and restricted sov immunity in a
certain class of statutes.
ii. 14th A understood to have restructure the relationship between the
states and federal govt with respect to how the states treat its
citizens.
b. Text- 14th A explicitly applies only to states; Article I powers apply to
everyone.
c. Necessary for 14th to have meaning- without enforcement power, 14th had
no meaning. State is still bound by federal law.
d. Abrogation power never brought up- ah, but only a recent expansion in
federal power, where feds stell states what to do.
e. Majority rejects officer suit fiction- where congress has intricate remedial
shcem that implicitly displaces ex parte young (able to issue injunctive
relief)- SIEGEL SAYS THIS IS BOGUS- court wants a way around ex
parte young AND this only applies to indian law.
3. Biggest problem- huge contradiction btn allowing abrogation power, but
enforcing the 11th amendment
4. Dissent- this is totally bogus
a. State sovereign immunity NOT in the Constitution- 11th A did NOT
constitutionalize state sovereign immunity; simply prevented federal
jurisdiction over a certain set of cases involving states. Constitution did
not freeze the common law into place- Court can change it because that’s
what common law is all about.
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v. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank
(USSC 1999 Rehnquist)- WHEN DOES CONGRESS ACT PURSUANT TO 14§5?
Congress passed Patent Remedy Act to abrogate state sov immunity from patent
infringement suits. ∏ sued state for selling annuity KS that infringed ∏’s patent.
1. H- PRA was not a balid exercise of Congress’s power to abrogate state sov
immunity based on 14§5.
2. Two part test for whether valid exercise of 14§5:
a. What is the exact constitutional violation?
b. If Congress acting beyond the constitutional violation, is the prophylactice
legislation congruent and proportional to the remedial/preventive purpose?
3. Applying test here
a. Exact constitutional violation- Deprivation of property (patent rights)
without due process
b. Proportionality- made ALL states suable in fed courts for ALL patent
infringement forever. No attempt to record pattern of violations or add
sunset provisions.
4. Dissent- very unfair to change the rules on congress after the fact
5. Recent cases dealing with whether law is valid exercise of § 5 powers- HUGE
a. Kimel v. FL Bd of Regents (USSC 2000)- ADEA did not validly abrogate
state sov immunity b/c prohibits far more state discrimination than the
Constiuttion.
b. Board of Trustees of U Al v. Garrett (USSC 2001)- Americans with
Disability Act not valid exercise of 14§5.
c. Nevada v. Hibbs (USSC 2003)- Family Medical Leave Act validly
abrogated state sov immunity basd on 14§5
d. TN v. Lane (USSC 2004)- ADA validly abrogats state sov immunity as it
prohibits exclusion from public benefits or services on basi of disability,
as applied to disabled access to courthouses.
i. Scalia- congruence and proportionality test flabby and hard to
predict.
h. Suits Against States in State Courts
i. Rule
ii. Alden v. Maine (USSC 1999 Kennedy)- Maine probation officers sued ME in Maine
federal court vor violating FLSA overtime provisions. DL dismissed, ∏s brought same
suit in state court, state DL
1. Issued- whether state can be sued in state court ona federal cause of action absent
waiver of sov immunity
2. H- No.
a. State sovereign immunity does NOT come from the 11th A,m but is a
constitutional principle grounded in the structure of the Constitution.
States retain sov immunity from private suit in their own courts, and
Congress cannot abrogate that by Art I legislation.
b. States are suable in their own courts if they manipulate immunity in a
systematic fashion to discriminate agisnt federal cause of actions- TEsta
v. Katt doesn’t apply when ∆ = state.
3. Rationale
a. STructura of constitution- crystal ball, 10th A, basic postulate
b. 11th A just a response to Chisholm – narrowness of 11th A indicates that it
was just enunciating a principle already in the constitution.
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Part VIII – Abstention
I. Background-
a. Abstention doctrines are used to preserve the status quo of intersystem relationships. Federal
courts use these doctrines when they have jurisdiction, but choose not to exercise it to avoid
upsetting state-federal relationships
b. Fundamental tension between PRIMARY and SECONDARY role of federal courts:
i. PRIMARY (Mitchum)- federal courts are the primary guardians of federal rights; fed
courts must interpose themselves between states and citizens.
ii. SECONDARY (Atlantic Coast) - State courts are perfectly capable and likely to protect
federal rights, and in the interests of OUR FEDERALISM, federal courts could defer to
state courts. Only federal court involvement = USSC cert power.
c. Theme of Pullman, Burford, Thibodaux- Difficult questions of state law not enough of a reason
for abstention, but difficult/unclear question of state law + something else may justify abstention
i. Pullman- need to avoid premature determination of federal constitutional ?
ii. Burford- need to avoid messing up complicated state admin scheme
iii. Thibodaux- need to avoid interfering with key aspect of state sovereignty (here, eminent
domain power).
d. Two BASES for why federal courts might not enjoin a state court: If you have either one of these
limitations, the federal court may not enjoin the state court proceeding.
i. Anti-injunction Act
ii. Younger abstention-
e. Is Younger abstention appropriate?
i. Yes- state courts equally capable of applying federal law and protecting federal rights.
ii. No- state courts violate federal rights; judges do not have life tenure
f. Younger v. Pullman abstention
i. Pullman- just about letting state courts decide state law issues; reserves federal issues for
federal court
ii. Younger- state court get to decide federal issues; federal reveiew very unlikely b/c cert
granted in very few cases. Younger abstention deprives you of right to hae a life-tenure
judge consider your federal constitutional claim.
II. Anti-Injunction Act
a. 28 USC § 2283- Stay of State Court Proceedings. A court of the US may not grant an injunction
to stay proceedings in a State court except as expressly authorized by Act of Congress, or where
necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
i. Reaction to Kline v. Burke case.
ii. Comments on the exceptions
1. Expressly authorize- does act of congress create a federal right that would be
frustrated if not permitted
2. Necessary in aid of jursi- in rem & preserves removal power of
3. Protect/effectuate judgment- mysterious b/c ∆ should be able to just assert res
judicata. Maybe if state courts reject res judicata, that would be it.
b. Kline v. Burke (USSC 1922 Sutherland)- NO COORDINATION BETWEEN FEDERAL AND
STATE SYSTEMS; NEITHER COURT HAS POWER TO TELL OTHER TO STOP
HEARING CASE. ∏ sued town official in fed court for breach of K; ∆ then sued ∏ in state
court, but added sureties who were nondiverse from ∏, so ∏ couldn’t remove the case to federal
court. Two cases were about the exact same thing, fed ∏ tries to argue that fed court should
enjoin the state court proceeding because he filed federal suit first.
i. H- In in personam cases (in rem might be different), federal court cannot enjoin state
court proceedings.
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ii. R- Only a statutory right, not a constitutional right, to maintain an action in federal court,
but parties have an equal right to proceed in state court.
iii. Pros/cons of Kline
1. Pro- preserves state judicial power
2. Con- inefficient (dual proceedings), race to judgment.
c. Atlantic Coast Line RR v. Brotherhood of Locomotive Engineers (USSC 1970 Black)-
NARROW CONSTRUCTION OF ANTI-INJUNCTION ACT- MUST FIT WITHIN AN
EXCEPTION. Union picketing ACLs switching yard, ACL sued for injunction in federal court
but was denied. ACL went to state court and got injunction. Two years later, USSC decided that
stae courts couldn’t interfere with worker’s rights to picket, so BLE went to state court to
dissolve the earlier injunction against picketing. BLE didn’t follow state appellate guidelines,
but sought an injunction in fed court to tell state court to remove its injunction.
i. H- Federal injunction improper b/c none of the three exceptions to the AIA were
satisfied. AIA meant to be read very narrowly.
ii. Analsyis
1. No express authorization by Congress
2. Protect/Effectuate fed court judgment- Federal court only allowed to enjoin state
court’s action when it intereferes with the federal court’s prior decision. Here,
federal court did not decide whether the Act barred injunction against striking
based on state law.
3. Necessary in aid of fed court’s jurisdiction- Federal courts cannot enjoin state
courts just when necessary to protect federal RIGHTS because those rights are
protected in two ways- 1) supremacy clause requires states to apply federal law
and 2) can appeal state court judgments to the USSC and get fed decision.
Injunciton only proper to protect federal JURISDICTION! E.g., case where there
was NO concurrent jurisdiction, but state court heard case anyway.
iii. Dissent- federal courts are primary guardians of federal rights
iv. Impact of decision-
1. Suggests SECONDARY role for federal courts- only if entire state system screws
up will fed courts step in.
2. Federal courts cannot apply Ex parte young reasoning to order state courts what to
do because state courts considered equal to federal courts in protecting rights
(state executives considered secondary in protecting federal rights).
d. Mitchum v. Foster (USSC 1972 Stewart) – BROAD INTERPRETATION OF “EXPRESSLY
AUTHORIZED” EXCEPTION. FL shut down porn store, owner sued in federal court asking
for injunction of state court action. Owner relied on 42 USC 1983- FL laws being
unconstitutionally applied to him.
i. H- Fed injunction proper b/c 1983 falls within the expressly authorized exceptionto AIA
ii. Fationale- For an act to fall within this exception, look at three issues:
1. Act doesn’t have to expressly refer to AIA (§2283)
2. Act does not have to expressly state that it allows fed courts to issue injunctions
against state courts.
3. Act must create a specific and uniquely federal right or remedy, enforceable in a
federal court of equity, that could be frustrated if the federal court were not
empowered to enjoin a state court proceeding.
iii. Impact- amounts to allowing implicit authorization- hre, 1983 says absolutely nothing
about state court proceedings.
iv. Motivation- court adopts PRIMARY view of federal courts- see discussion that
Reconstruction altered the federal system and moved federal courts to the position of
primary defender of federal rights.
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III. Pullman Abstention/Certification
a. Basics of Pullman-
i. Doctrine- Where a federal court has jurisdiction over a case, it should abstain and refer
the case to the state court when 1) the state law is unclear and 2) state court might
interpret state law in a way that avoids the decision of the federal constitutional issue.
ii. Exception to Pullman abstention-
1. if the state law at issue is state constitutional provision that is duplicative of the
federal constitution, federal court may not abstain. If it did abstain, it would lose
most of its docket.
2. no abstention just because state law is difficult (Meredith v. City of Winter
Haven). Court does allow certification of the issue in diversity cases (Lehman
Bros v. Schein), but not abstention because forcing a ∏ to go into state court
eviscerates the purpose of diversity jurisdiction- to provide a neutral forum. Bias
that motivates diversity jurisdiction is the bias in state TRIAL courts, not state
appellate courts.
iii. Pullman Abstention Applied- Federal court decides to abstain on issue of state law:
1. ∏ files new action in state court
2. ∏ must make England reservation- tell state court about the federal issues in your
case, but reserve the right to return to federal court for the determination of those
federal issues.
a. Windsor- Must inform state court of federal issues nad reserve right to
staek the federal claims back to federal court even if state court decides
the federal issues.
b. Problme- could waive right to go back to federal court if you don’t make
Windsor statement AND do more than Windsor requires (full litigation of
federal issues).
3. Problems with this proceedings
a. Inefficient
b. Risk waiving right to go back to fed court if don’t know what you’re
doing.
iv. Certification- Abstention lite- almost entirely replaced Pullman abstention.
1. Caly v. Sun Ins (USSC 1960)- when federal court encounters an unclear issue of
state law that may preclude the determiniation of a federal constiutionl question, it
can certify the state law question to the state supreme court for decision while
retaining jurisdiction over the case. Some delay, but overall much more efficient.
b. RR Commission of TX v. Pullman (USSC 1941 Frankfurter)- TX RR commissioner issued
order tha required RR conductor (always white), not just a porter (black), on every sleeper train
operated in TX. Pullman sued in federal court asserting that the order violated TX state law
AND federal law (EPC and DPC). Two bases for the case: 1) Order invalid as matter of state
law and 2) even if valid under state law, violates federal constitution.
i. H- DL should have refrained from deciding the case and dismissed the case and told ∏s
to go to state court
ii. Rationale for Pullman Abstention
1. Avoidance of federal constitutional issue- Because USSC decisions on
constitutional issues are binding, courts should avoid deciding the constitutional
question if at all possible. Let state courts decide if action is valid under state lwa
before entertaining the federal constitutional issue.
a. Criticism- DL still could have decided the state law- presume it’s
competent to do that.
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2. State law is unclear- appropriate to abstain when state law is unclear because want
to afford state courts opportunity to interpret state law. If state law totally clear,
then federal courts must keep jurisdiction.
3. Federal court cannot definitively decide state law- only state supreme court
decision is binding with respect to state law.
4. Public policy- AVOID FRICTION btn state and fed courts – bogus because fed
court apply state law all the time in diversity cases.
5. SEnstive social issue- Jim crow law, USSC not ready to deal with it.
a. Never heard about this rationale again
6. State methods available to resolve the issue
7. Equitable discretion- Courts of equity always have discretion to refuse to issue
equitable relief. Implies that federal courts can always deny request for injunctive
relief.
a. Quackenbush v. Allstate (USSC 1996)- Although abstention in cases
requesting equitable relief is NOT appropriate under Pullman, the federal
court may stay its proceedings pending resolution. Essentially amounts to
Pullman abstention.
iii. Comments on the case
1. Federal jurisdiction is MANDATORY- decision by federal court NOT to exercise
that jurisdiction is judicial arrogation of power at the legislature’s expense.
IV. Specialized Abstention Doctrines
a. Burford Abstention- Where the state has a complex administrative scheme involving basic
problems of state policy, federal courts should abstain from deciding state law issues b/c it could
result in contrary instructions.
i. Never heard about again- dissenting justices say the entire point of federal diversity juris
is to get parties out of state court.
b. Thibodaux Abstention- Where federal courts deciding the state law issue would be interfering in
an issue that strikes at the heart of state sovereignty, they should abstatin from deciding that
issue.
V. Younger Abstention
a. Background to Younger
i. Ex parte Young- use of nonstatutory review fiction allowed federal court to enjoin state
official from prosecuting the RR under the draconian state criminal statute (5 yrs jail for
each violation). Injunciton warranted because not practical to tell someone to violate
statute and risk being prosecuted and convicted before federal court would step in. Over
time, though, fed courts issued more injunctions against state criminal proceedings
regardless of whether the penalties imposed were Draconian.
ii. Douglas v. City of Jeannette (USSC 1943 Stone)- Federal court can only enjoin a state
criminal proceeding where the danger of irreparable injury is both GREAT and
immediate. ∏s (Jehovah’s witnesses) went door to door to sell books and pamphlets;
were prosecuted under city ordinance that required solicitors to get license and pay tax.
∏s already convicted, threatened with further proseucitons; sought injucniton from
federal court against further prosecution under the ordinance.
1. Rationale-
a. No irreparable injury to be prosecuted b/c they can assert their
constitutional rights in state court and state court is bound by supremacy
clause to apply the federal law.
b. No immunity from being prosecuted in good faith
2. Impact of case- substantial curtailment of use of ex parte young to hold states in
line; endorsement of secondary role of federal courts in protecting federal rights.
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iii. Dombrowski v. Pfister (USSC 1965 Brennan)- Injunciton of state criminal proceeding
appropriate in 1st A cases with chilling effects. ∏s working for civil rights for black in
LA, state arrested ∏ for violating subversisve activity statutes and ransacked offices.
Even though charges dismissed, state kep threatening prosecution. ∏s sought federal
court injunction.
1. H- Injunction appropriate here b/c there was a danger of irreparable injury-
chilling effect of these statutes on ∏s right to free expression.
2. Clear statement of primary view of federal courts in protecting federal rights.
Dissent diagreed- thought federalism should trump 1st A rights.
b. Younger v. Harris (USSC 1971 Black)- ∏ (socialist/communist) prosecuted for violation of CA
syndicalism act. ∏ filed for federal injunction to prevent CA atty from prosecution him alleging
that prosecution under the Act violated his 1st A rights (§1983 action).
i. H- Federal court may not enjoin a PENDING state criminal prosecution unless one of
two exceptions (prosecution in bad faith or law so flagrantly violative of express
constitutional rights).
ii. Rationale
1. Equity, comity, federalism- OUR FEDERALISM-
a. Equitable relief unavailable to person with adequate remedy at law- here
Harris’s adequate remedy was to raise his constitutionality defense in the
state criminal proceeding.
b. Comity- recognize the competency and authority of state courts and don’t
want ot interfere, especially once state has decided to prosecute.
c. Federalism- the Constitution mandates respect for state courts.
2. Why there wasn’t sufficient danger of irreparable injury
a. Threat to federal rights must be one that cannot be eliminated by defense
against a single crim prosecution
b. Chilling effect in an of itself not enough to justify fed injunction- must be
chilling effect + something else (bad faith harassment and prosecution of
party). Reinterprets Dombrowski
iii. Court completely ignores possibility that §1983 is a proper exception to the anitinjunciton
act. Must pass both Younger test AND AIA to issue injunction.
iv. Brennan concur- no allegation of bad faith, can raise constitutional issue in court.
v. Dougals dissent- absolute BS. 14th A reconstructed federalism to place federal courts as
primary guardians of federal rights, including anytime a state statute is facially
unconstitutional. Thinks that 1983 was a correct basis for injunction.
1.
c. YOUNGER RULE- Federal Court may not enjoin a PENDING state criminal prosecutions
unless (neither of these make sense b/c could address both of these in state court).
i. Prosecution brought in bad faith or as a series of repeated prosecutions OR
ii. Statute flagrantly and patently violative of express constitutional prohibitions in every
clause, sentence and paragraph.
d. Refining Younger
i. Samuels v. Mackell (USSC 1971)- No federal declaratory relief in a pending state
criminal proceeding.
1. Rationale- Declaratory judgment could serve as a basis for injunction under
§2283 AIA exception OR could have res judicata effect on the state court.
ii. Steffel v. Thompson (USSC 1974 Brennan)- Federal declaratory relief appropriate if
there is NO PENDING state criminal proceeding. ∏ handed out handbills at shopping
center, cops threaten to arrest him and actually arrest his friend for criminal trespass. ∏
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filed DJA to get federal statement that the trespass statute as applied violated 1 st/14th
rights.
1. H- declaratory relief appropriate where no pending state proceeding.
2. Rationale-
a. Absent state proceedings, concerns of equity, comity, federalism don’t
really apply
b. DJA gentler form of injunction- persuasive, not mandatory, and no
sanctions for state official.
c. ∏ has no adequate remedy at law.
3. White concur- declaratory judgment should be given res judicata effect in later
state court proceeding AND could serve as the basis for a federal injunciotn under
AIA exception
4. REqhnusit concur- DJ has no res judicata effect, just a statement of rights. But
this turns it into an advisory opinion. NEVER RESOLVED WHETHER DJ HAS
RES JUDICATA EFFECT.
iii. Wooley v. Maynard (USSC 1977)- Federal injunction against future state prosecution
appropriate in exceptional circumstances and where ∏ clearly shows that injunction
necessary to afford adequate protection of constitutional rights.
1. in this case, 3 prosecution s in 5 weeks; risked prosecution every time he left
house in his car (prosecutions dealt with small alteration to his license plate).
iv. Hicks v. Miranda (USSC 1975 White)- Even if no state criminal proceeding pending
before ∏ files for federal relief, Younger abstention kicks in if state files charges before
the federal court begins any proceedings of substance on the merits. Cops seized pron
movies at theater, file dcrim charges aginst employees. Owners sued for declaratory and
injunctive relief in fed court, but state immediately filed criminal charges against the
owner.
1. H- Younger abstention applies
2. RAtonale
a. Alignment of interests
b. Even if DJA properly filed, once stae commences criminal proceedings,
DJA claim terminated.
3. Dissent- this trivializes steffel and takes away fed courts primary guardianship of
federal rights. Really lets ∆ remove case from federal stae court. Gives
prosecutors every incentive to file criminal charges.
v. Doran v. Salem Inn (USSC 1975 Rehnquist)- ON certain facts, if you file a DJA before
state institutes crim proceedings, you can also get a preliminary injunction to stay the
filing of state prosecution during the pendency of your federal DJA claim.
1. Never resolved the question of wehtehr the state can prseocute you for actions
taken during preliminatry injunction phase.
vi. Basic rule- If your client wants to engage in conduct prohibited by state law, but he
believes protected by the Constitution, what do you do?
1. Tell client not to commit the crime, but file DJA in federal court, do not commit
the crime while they are hearing the DJA.
2. Once you get the preliminary injunction, you might be able tot commit the crime,
but if they decide that you shouldn’t get the injunction, then might be prosecuted
for it later.
e. Extension of Younger
i. Huffman v. Pursue (USSC 1975)- When state proceeding is AKIN TO CRIMINAL
PROSECUTION, then Younger abstention applies. Here, civil nuisance proceedings
aginst pornstore owner akin to criminal prosecution
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ii. Nature of state interest- if has to do with interest in sovereignty (courts system procedure,
health and welfare).
1. Trainor v. Hernancez (USSC 1977)- No federal interference in state civil
proceedings where state sought ot compel return of fraudulently obtained welfare
payments.
2. Moore v. Sims (USSC 1979)- no fed interference with state civil proeecing where
state sought cusotyr of abused kids
3. Juidice v. Vail (USSC 1977)- no fed interference in state court’s decision to issue
contempt sanctions
iii. Pennzoil Company v. Texaco (USSC 1987 Powell)- No federal injunction in civil
proceeding between two private parties where stae has an interest in having judgments of
state courts be enforced. Private suit in TX, Pennzoil won and could enforce its favorable
judgment agasint any of Texaco’s assets in TX unless Texaco could come up with $11
billion in cash. Texaco couldn’t and instituted suit in SDNY alleging proceeding violate
Texaco’s constitutional and federal statutory rights.
1. Rationale- Comity principle- federal courts trust state courts to do the right thing.
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Part IX – Habeas Corpus
I. Habeas Basics
a. Purpose of Habeas- to allow someone who alleges that they have been unlawfully detained to
petition a court to review the constitutionality of that detention.
i. Primary purpose- allow persons detained (convicted and imprisoned) under state criminal
law to petition a federal court to review the constitutionality of their detention
b. Rationale for collateral review of state court criminal proceedings
i. No collateral federal court review of state civil proceedings- DL do not sit in judgment of
state court civil judgments, res judicata
ii. Criminal proceedings are different from civil proceedings- people can lose their liberty or
life, willing to give federal courts primary role in protecting these federal rights.
c. Thoughts about habeas
i. Is habeas about justice or fixing constitutional errors?
d. Basis for habeas:
i. Constitutional- All cases and controversies arising under laws of us (federal question)
ii. Statutory- 28 USC §§ 2241, 2243, 2254
1. §2241- Power to grant writ
a. USSC, USSC justices, district and appellate courts can grant it
b. USSC can decline to issue writ, but can transfer to district court
c. Only prisoners who can get the writ – must be in custody
d. Which district court state prisoners should file habeas writ
2. §2243- Issuance of Writ, return; habeas decision
a. Once judge gets the application for the writ, he can decide that application
doesn’t justify issuing the writ OR issue writ or order to the respondent to
show cause why writ shouldn’t be granted.
b. Procedural aspects of response to writ/hearing
3. §2254- State custody; remedies in federal courts
a. State prisoners can only assert that they are in custody in violation of US laws.
b. Exhaustion provisions
i. State prisoner must show that:
1. he exhausted available remedies in state courts OR
2. there was an absence of available state corrective process or
circumstances exist that render such process ineffrective to
protect applicant’s rights.
ii. Fed court can still reach merits of writ even though no exhaustion
iii. Exhaustion reqt only waived by express state waiver
c. NO exhaustion if applicant hs rith under state law to raise the question
d. Federal court can only issue writ wrt claim adjudicated on the merits in state
proceeding IF adjudication
i. Questions of law- resulted in decision that was contrary to, or
involved and unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the US OR
ii. Questions of fact- Resulted in a decision that was based on an
unreasonable determination of the facts in light of evidence presented
in state court proceeding.
e.
i. (e)(1) State court’s determination of factual issues PRESUMED
correct; applicant has burden of rebutting presumption by CLEAR
AND CONVINCING EVIDENCE.
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ii. (e)(2) WHEN COURTS CANNOT DETERMINE THE FACTS-
Court SHALL NOT hold evidentiary hearing on the claim if applicatnt
didn’t develop factual basis of claim in state court UNLESS
1. claim relies on
a. New rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable OR
b. A factual predicate that could not have been previously
discovered through the exercise of due diligence AND
2. the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant
guilty of the underlying offenses.
e. Pros/Cons of Habeas Corpus
GOOD BAD
 Promotes enforcement of federal constitutional  Shows some level of disrespect for state court
rights judgments
 Meritorious cases  Exists in tension with abstention doctrines
 Liberty/life interests are important  Too many cases
 Congressional intent and will- see habeas statute  Federal judges can abuse
 USSC certiorari uncertain; want life-tenure federal  Duplicative proceedings.
judge to pass on politically charged criminal cases
II. Basic Principle of Habeas

a. Brown v. Allen (USSC 1953 Frankfurter)- Rule- If you are in state custody pursuant to a state
criminal proceeding, you can be released on habeas if there was a FEDERAL constitutional error in
your state trial.
i. Rationale- theory of habeas a little fuzzy, but overall, sense that where people are deprived of
liberty or life due to a state court’s violation of person’s federal constitutional rights, we want
a federal judge to have a chance to review the state court decision.
1. Congressional intent- After Civil War, Congress granted habeas power over state
prisoners to the federal courts as part of the realignment in the relationship between
the states and the federal government
2. USSC certiorari happens too infrequently, even though there are not many
meritorious cases, still want to give those prisoners a chance to have their federal
constitutional claim reviewed by a federal (life-tenure) judge who is insulated from
the political pressures that often surround state elected judges.
3. Habeas only lies to enforce personal liberty- doesn’t expunge the state judgment, so
maybe not as intrusive. This remains unclear.
ii. Frankfurter’s key principles of habeas relief
1. Prisoner msut make out prima facie case that his constitutional rights have been
violated
2. Petitioner must exhaust available state remedies
3. Judge has desicretion to decide wehterh to rely on state record of facts or hold a new
evidentiary hearing. Hearing might be appropriate where:
a. No clear state record
b. Getting the record more burdensome than having new hearing
c. Don’t give too much deference to state courts
d. State court procedures vary widely
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4. Fed judge may rely on state court determination of facts unless a vital flaw found in
the factfinding process.
5. Federal judge must determine for himself question of law or mixed questions of law
and fact.
6. Judge can consider prior denial of habeas relief
iii. Jackson concurring in result-
1. doesn’t think writ historically meant to be used to challenge sentence imposed by
court of competent jurisdiction
2. Would sharpluy curtail habeas- district courts should not be considered state appellate
courts.
III. Federal Adjudication of Factual Issues on Habeas
a. Hypo- Prisoner alleges that the confession admitted into evidence was beaten out of him. Law is
clear (no admission of coerced confessions), but facts must be determined. How should federal
judge decide the facts?
b. Evolution in adjudication of factual issues: In reality, factual hearings unusual in habeas.
i. Brown v. Allen (USSC 1953)- HEARING DISCRETIONARY- Fed judge not obliged to
hold an entirely new fatucal hearing/ Judge MAY accept the state’s determination of the
facts UNLESS there was a vital flaw in the state proceedings.
1. Reason- effort in having new hearings, witnesses vanish or forget.
ii. Townsend v. Sain (USSC 1963 Warren)- HEARING MANDATORY federal evidentiary
hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state
court, etiher at the time of the trial or in a collateral proceeding. New hearing mandatory IF
1. merits of factual dispute not resolve din state hearing
2. state factual dtermination not fairly supported by record as whol
3. factfinding procedure used by stae court not adequate to afford full and fair hearing
4. substantial allegation of newly discovered evidence
5. material facts not adequately developed at state-court hearing OR
6. for any reason it appears that state trier of fact did not afford applicant a full and fair
hearing.
iii. Keeney v. Tamayo-Reyes (USSC 1992 White)- Restriction of when Hearing mandatory
1. Petitioner gets evidentiary hearing if he can show cause for his failure to develop the
facts in statecourt proceedings AND actual prejudice resulted from that failure.
2. Exception to the cause/prejudice reqt- Federal evidentiary hearing mandatory only if
petitioner shows that fundamental miscarriage of justice would result from failure to
hold a federal evidentiary hearing.
iv. CURRENT RULE- 28 USC §2254(e)- 1996 amendment – First time Congress BARS
evidentiary hearing in some cases.
1. 2254(e)(2) WHEN COURTS CANNOT DETERMINE THE FACTS- If applicant
FAILED to develop the factual basis of a claim in State court proceedings, the court
SHALL NOT hold evidentiary hearing on the claim UNLESS the applicant shows
that:
a. claim relies on
i. New rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable OR
ii. A factual predicate that could not have been previously discovered
through the exercise of due diligence AND
b. the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offenses.
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2. Michael Williams v. Taylor (USSC 2000)- INTERPRETING 2254(e)(2) “FAIL”
Prisoner sentenced to death for rape and murder, but alleged that stae violated Brady
duty to dislose prosecution witness psychiatric record and allged juror bias that
prosecution knew about. Williams alleged that he didn’t raise claims in state court
b/c he was unaware of the facts.
a. H- Under 2254(e)(2), a failure to develop the factual basis of a claim is not
established unless here is lack of diligence, or some greater fault, attributable
to the prisoner or the prisoner’s counsel.
b. Rationale- don’t punish prisoner with meritorious claim b/c prosecution’s
conduct went undetected in state court.
IV. Claims Cognizable in Habeas
a. Non-guilt-related claims
i. Guilt-related v. Non-guilt related claims
1. Guilt-related coerced confessions, inability to cross-examine witnesses, Brady
violation- anything that goes to the central issue of whether you were actually guilty
2. Non-guilt-relateddouble jeopardy; 4th A violations; Miranda warnings
ii. Stone v. Powell (USSC 1976 Powell)- 4th A claims are not cognizable on habeas review. ∆
allged that murder weapon should have been excluded under the exclusionary rule. Court
disagrees.
1. Rationale
a. No constitutional right to have illegally obtained evidence excluded- Hmm,
but the USSC has decided to incorporate MApp against the states.
b. Purpose of ER not served on collateral review- ER meant to deter original
violation of your rights; police won’t track habeas petitions so enforcing it on
habeas confers a small benefit.
c. Costs of ER on habeas- releases a guilty person (why they’re arguing the ER
in the first place)
2. Brennan dissent- really worried that all nonguilt related claims rejected on habeas.
a. Cost-benefit anlaysis inappropriate- Congress has told courts to hear habeas
cases, but hasn’t made a distinction btn what type of claims can be heard.
Hearing 4th A habeas claims just imposes a cost that should have been
incurred at trial.
b. gIves state courts free reign to violate rights- removes federal oversight.
3. Withrow v. Williams (USSC 1993)- refused to extend Stone v. Powell to Miranda
claims.
iii. Pros/cons of limiting habeas to guilt-related claims
1. Pro- PRIVATE RIGHTS- habeas only about freeing people who are innocent; don’t
let guilty people out on technicalities; Congress could eliminate that part of habeas;
shows respect for state courts
2. Cons- PUBLIC RIGHTS- habeas about vindicating constitutional rights; Congress
hasn’t limited habeas jurisdiction; only way to enforce federal constitutional rights
b/c state judges too swayed by political pressure of criminal cases.
b. Claim of innocence
i. Herrera v. Collins (USSC 1993 Rehnquist)- Claims of actual innocence based on newly
discovered evidence are not cognizable on habeas. ∆ convicted of murder and sentednce to
death in TX; 10 yrs later, he petitions for habes on grounds that he had new evidence that his
now-dead brother committed the crime.
1. H- No dice.
2. Rationale
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a. Habeas is about correcting constitutional errors that occurred at your state
trial, not giving you a second trial on new evidence. Compare this to a claim
that there was insufficient evidence to support your conviction- there, all the
evidence was introduced at trial, you’re just arguing that the state judge
incorrectly allowed you to be convicted on an insufficient quantum of proof.
b. Executive clemency is available to prisoner- he has a remedy, just not a
federal judicial remedy. This is BS b/c politically in TX pardons are never
issued. See Blackmun/Souter dissent
3. Key reservation- Habeas review might be possible in a capital case if “a truly
persuasive demonstration of actual innocence made after the trial would render the
exectuiton of a ∆ unconstitutional” and there were no state avenue open to process
such a claim. STILL UNRESOLVED QUESTION !!!
4. O’Connor/Kennedy- not about the constitutional right of an innocent person not to be
executed. Presumption of innocence disappears after the state court convicts you.
Only have a constitutional right to the process by which guilt is determined.
V. Claims Based on New Rules
a. Normal retroactivity- If USSC decides a case and announces a new rule, it applies the new rule to
the case before it and to all other cases pending on direct review (those that have been appealed and
haven’t had cert petitions denied yet).
i. Rationale- like cases should be treate alike.
b. Teague v. Lane (USSC 1989 O’Connor)- New rules are not applied on collateral habeas review
unless they fit within one of two exceptions. Also, the courts will not create new rules on
collateral habeas petitions.
i. F- ∆ convicted of armed robbery and murder, his prosecutor used all 10 jury strikes to
eliminate blacks from jury pool and ∆ ended up with all-white jury. On habeas, ∆ says that’s
unconstitutional b/c (1) EPC violation for prosecutors to strike jury members based on race
(Batson) and (2) he had a 6th A right to trial by impartial jury.
ii. H- No habeas on either claim
iii. Rationale
1. EPC claim- Batson decided two years after ∆’s conviction became final. Court
decides that won’t apply new rule to cases on collateral review because of need for
finality; unfair to punish state courts for applying what they thought was the correct
law. Question this reasoning b/c if we’re going to do collateral review in the first
place (a huge imposition), do on the correct interpretation of the constitution.
a. Old way- Allen v. Hardy- Linkletter test- When court handed down a new
rule, it had the discretion to dcide whether that rule would apply to collateral
review based on three factors: 1) prupose of rule; 2) state reliance on prior
law; (3) effect on administration of justice of retroctive applicaito.
b. New rule- New rules will not be applied on collateral review UNLESS
i. New rule place certain kinds of primary personal conduct beyond
power of govt to proscribe (person shouldn’t be convicted) OR
ii. New rule announces a watershed rule of criminal procedure- one
that is fundamental to ordered liberty AND improves the accuracy of
the trial.
th
2. 6 A claims- Refuses to render a new rule on habeas b/c it wouldn’t apply to all other
habeas petitioners. Rule- no new rules on habeas petitions unless those rules will be
applied retroactively to ALL defendants on collateral review through one of the two
Teague exceptions.
a. Stevens- backwards, normally decide merits first then decide if it should apply
to case in front of you (harmless error). Nobody has ever suggested that this
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was an advisory opinion.
c. What’s a NEW RULE under Teague?
i. Butler v. McKellar (USSC 1990 Rehnquist)- New rule of criminal procedure is anything
that was not DICTATED by precedent existing at the time of the ∆’s conviction.
1. Practical effect- if judge has to think for a moment whether precedent dictated the
result, it’s a new rule.
2. Legal effect- makes almost everything a new rule, and thus almost never applicable
on collateral review.
VI. Standard for Review of Legal Claims
a. §2254(d)(1)- New standard for review of state court’s application of the law
i. Doesn’t specifically include the Teague exceptions- Siegel thinks the Court would interpret
the statute to allow application of these exceptions.
b. Terry Williams v. Taylor (USSC 2000)- Williams convicted of robbery/murder, sentenced to death.
HE sought habeas from state b/c of ineffective assistance of counsel, denied, then went to federal
court.
i. O’Connor’s opinion- RULE OF WILLIAMS- In cases where the state court judge had to
make a close call on a legal question, but his choice was reasonable, federal district court
must affirm the state court even if they think the state court incorrectly decided the federal
constitutional law issue.
1. Statute shows that Congress wants federal courts to defer to state courts on questions
of federal law- only time habeas can issue is if the state court got it wrong and got it
wrong in a certain way. Similar to Chevron
2. Benefits- faithful to “unreasonable application” of test; deference to stae court shows
respect for federalism
3. Problems- ignores “contrary to”; forces federal court to defer to state court on legal
issues of federal constitutional law- promotes disuniformity and no need to do it b/c
federal judge just as qualified to decide the issue
ii. Stevens opinion- 2254(d)(1) simply codifies Teague, and Teague didn’t require defence to
state court authority
1. Benefits of his view- comports with the purpose of habeas (allow federal courts to
decide questions of federal constitutional law); gives federal courts de novo review
power
VII. Claims Defaulted in State Court Proceedings
a. Rule 1- No habeas appeal until you exhaust your state appellate remedies.
b. What happens if you missed the window for your state remedy? See Wainwright rule- Must show
cauase and prejudice
i. Evolution of the rule:
1. Daniels v. Allen (USSC 1953 Reed)- Federal courts will not review state court
judgment supported on adequate and independent grounds. Would be an advisory
opinion if court decided the federal issue. Here, state law was to refuse review on late
appeals and because time limits not unconstitutional, that’s it.
2. Fay v. Noia (USSC 1963 Brennan)- Habeas available unless the petitioner
DELIBERATELY BYPASSED the stae appellate system. Guy sentence to life for
capital crime, didn’t appeal his sentence on grounds that confession coerced because
he was afraid of being retried and getting the death penalty.
a. Federal courts as primary protectors of federal rights.
b. Serious doubt if USSC applied the rule of Fay to the Fay case correctly- ∆ did
deliberately bypass state appellate system.
c. Problem with Fay v. Noia- how would you ever figure out if atty decided to
deliberately bypass the appellate process? AC privilege would protect all
65
communcations that would tell you this.
3. Wainwright v. Sykes (USSC 1977 Rehnquist)- RULE 2- When a ∆ fails to exhaust
his state remedies, habeas will only be allowed if petitioner can show cause for
failure to exhaust and prejudice
a. Rationale- Fay v. Noia encourages sandbagging by ∆ laywer- hold back
constitutional claims at state trial to get two bites at the apple (chance of
acquittal and chance at habeas).
b. Brennan dissent- majority is stupid. Lawyers not going sandbag; instead,
most procedural default due to lawyer negligence or ignorance.
ii. What is proper CAUSE?
1. External impediment (Murray v. Carrier (USSC 1986))- usually when state itself
caused an impediment to raising your timely claim. Brady violation- state didn’t
hand over exculpatory evidence.
2. New Rules- eliminated by Teague
3. Error by counsel- not cause excusing procedure default b/c it’s its own constitutional
error. VERY HARD TO GET SPRUNG ON THIS.
iii. What is prejudice?
1. US v. Frady (USSC 1982)- No precise content, but claimed error must have “so
infected the entire trial that he resulting conviction” was unconstitutional.
c. ACTUAL INNOCENCE-
i. Herrera v. Collins- Actual innocence just a gateway through which habe petitional must
bpass to get his otherwise barred constitutional claim heard. Actual innocence lets prisoner
show conviction infected with constitutional error.
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Federal Courts - Siegel - Fall 2005 - GWU Law

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Federal Courts - Siegel - Fall 2005 - GWU Law

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Siegel Fed Cts F2005

Federal Courts Outline- Key Themes of the Class

I. Principle of Judicial Review and Its Justification

b. Retroactivity in Judicial Decisionmaking

I. Basics of Justiciability- What makes a conflict into a case?

III. Finality of Judicial Rulings

I. Basics of Jurisdiciton stripping and channeling

IV. Congress’s Power to Channel Jurisdiction

I. State Law in Federal Courts

f. Classic Approach- Ubi Jus, ibi remedium/ Zone of interest

I. Suits Against the Federal Government

iv. What happens without sovereign immunity?

b. Methods of Avoiding Federal Sovereign Immunity

iii. How are states similar to fed govt?

II. Basic Principle of Habeas

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