Federal Courts | Fletcher | Fall 2009 | Ver. 1.

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Blue: Rules | Green: Cases | Purple: Policy & Fletcher's Musings

Introduction
I. Text of Article III: Section 1 (judicial power & life tenure and salary protection) The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their ofces during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in ofce. Section 2 (heads of jurisdiction, appellate/original jdx of USSC, jury trial) The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers and consuls;-to all cases of admiralty and maritime jurisdiction;-to controversies to which the United States shall be a party;-to controversies between two or more states;-between a state and citizens of another state;-between citizens of different states;-between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Section 3 Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. II. What Article III does: ONE. Language in Art. III 1, "the judicial power of the United States shall be vested," creates a federal judicial system. Reasons for Article III and a national judiciary:

To effectively implement the powers of the national government; to respond to the feat that state courts might not fully enforce and implement federal policies Uniform interpretation of the Constitution and laws of the United States For protection of individual liberties (Madison's view) To resolve disputes between the states TWO. Art III 2 vests judicial power "in one supreme Court and in such inferior courts as Congress may from time to time establish." Randolph's view. Lower federal courts would encroach upon the rights of the states, and state courts would be competent to do the work required. Madison's view. State courts were likely to be biased against federal law and could not be trusted; also appeal to the Supreme Court would be inadequate to protect federal interests because the number of such appeals would exceed the Court's limited capacity to hear and decide circumstances. Madisonian Compromise. The constitution would provide for a supreme court, but lower courts would be left to Congress. THREE. Assures the independence of the federal judiciary by according all judges life tenure during good behavior and salaries that cannot be decreased during their time in ofce. FOUR. Denes federal power in terms of nine categories of cases and controversies: 1. Federal Question. arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-2. Ambassadors. to all cases affecting ambassadors, other public ministers and consuls;-3. Admiralty. to all cases of admiralty and maritime jurisdiction;-4. U.S. is a Party. to controversies to which the United States shall be a party;-5. State-State Diversity. to controversies between two or more states;-6. State-Citizen Diversity. between a state and citizens of another state;-7. Citizen Diversity. between citizens of different states;-8. Land Diversity. between citizens of the same state claiming lands under grants of different states, 9. State/Citzen-Foreign Diversity. and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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. Taxonomy: Chemerinsky: breaks C&Cs into (1) power to vindicate and enforce the powers of the federal government (arising under, U.S. as a party, foreign policy through ambassadors, etc.) and (2) insterstate umpiring function, resolving disputes between states and their citizens. Frank: breaks into (1) those relating to an effective national government, (2) to international affairs, and (3) to property and trade. Hart & Weschler: into (1) vindication of federal authority, (2) foreign affairs, (3) interstate umpiring, and (4) controversies between citizens of different states. FIVE. Allocates judicial power between Supreme Court and lower federal courts. 1. USSC has original jdx over cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. 2. USCC has appellate jdx, both as to "law and fact," subject to "such Exceptions and under such regulations as Congress shall make." 3. USSC states that Congress can give lower federal courts concurrent jdx even over those matters where Constitution states the USSC has original jdx. 2

USSC states that Congress can give lower federal courts concurrent jdx even over those matters where Constitution states the USSC has original jdx. SIX. Trial by jury for all crimes except cases of impeachment. WHAT ARTICLE III DOES NOT ADDRESS. 1. no explicit power for federal courts to declare federal and state laws unconsitutional 2. no explicit statement about relationship between federal courts and state courts III. The Judiciary Act of 1789 Important because (1) several portions of it have never been changed (like the Rules of Decision Act) (2) was drafted by the rst Congress, and may of the drafters of the Constitution, so it sheds light on the proper interpretation of the Constitution. No federal question jdx; just jdx for specic topics authorized by Congress. IV. Theories of Legal Philosophies Christopher Columbus Langdell. Law as geology; cases as rocks. Examine and compare the rocks, and see what standard can be drawn out from them. Legal Realism. Analysis of the law requires analysis of (1) intent of judge, (2) motivation of judge, and (3) what judge had for breakfast. Legal Process School. By paying attention to legal processes, one can limit or control the corrosive insight of legal realists.

Cases & Controversies: Justiciability

I. Background A. Policies underlying justiciability requirements: 1. Separation of Powers. Denes the judicial branch, determines when it is appropriate to wield power and when it is necessary to defer to other branches of government 2. Conservation of Judicial Resources. Allow federal courts to focus attention on matters most deserving of review 3. Improve Judicial Decisionmaking. Provide federal courts with concrete controversies best suited for judicial resolution a. Ensure concrete controversies and adverse litigants b. Depend on parties to fully present all relevant information 4. Fairness. Especially to individuals who are not litigants before the court; prevent the courts from adjudicating the rights of those not parties to a lawsuit. 5. Filter out issues that do not lend themselves to judicial adjudication. Limits topics to those the court is "designed" to hear. a. Are there too many parties with different interests and views? b. Is a nal decision desirable? c. Is there a traditional judicial solution to the problem, or does the problem require a complicated scheme? (redistricting, consent decrees, etc.) B. Limitations on Courts' Power 1. Case or controversy limitation. A constitutional limitation 2. Justiciability limitation: not clear if constitutional a. Sometimes seen as part of case or controversy limitation b. BUT often involves careful consideration of non-constitutional prudential factors. C. Judicial Review 1. Marbury v. Madison (1803). "It is emphatically the province and the duty of the judicial department to say what the law is (and other branches must follow our view)" a. FACTS. P was appointed a justice of the peace by Adams before he leaves presidency; Jefferson refuses to deliver appointment. P sues under JA 1789, giving USSC original jdx over writs of mandamus. Justice Marshall interprets Art III to not give Congress the power to add to the court's original jdx, declares portion of 3 the Act unconstitutional, and holds the USSC does not have power to hear the case.

FACTS. P was appointed a justice of the peace by Adams before he leaves presidency; Jefferson refuses to deliver appointment. P sues under JA 1789, giving USSC original jdx over writs of mandamus. Justice Marshall interprets Art III to not give Congress the power to add to the court's original jdx, declares portion of the Act unconstitutional, and holds the USSC does not have power to hear the case. b. Potential Readings of Madison: (1) Narrow Reading. According to Fletcher, probably as Marshall intended. When a question of constitutional law comes before the Court and the Court is asked to apply a statute that is unconstitutional, the court must follow the constitution as it understands the constitution. (a) Under this reading, no limit on what the legislature or executive can do, and no requirement that those branches defer to the USSC. (b) This would lead to a dysfunctional system: legislature will pass unconstitutional laws, executive branch will do unconstitutional things, etc. (2) Broad Reading. The current reading (and inescapable consequence). Not only does the Court say what the law is, the Court's interpretation is superior to any other interpretation. (a) Fletcher: this must be the answer, because if court is not the nal arbiter, (3) Problems with the current interpretation: (a) Antimajoritarian. Gives an unelected body with life tenure a great deal of power to set policy. (b) Slow/Ineffecient. The court must have a case in front of it in which to announce a new interpretation/ policy/rule. I. Overbreadth Issue. Court can introduce a major new rule (Miranda/Goldberg v. Kelly) and then create haywire. II. Piecemeal Issue. Court changes law/policy piece-by-piece in several cases over several years. c. Marbury's Legacy. Court has the power to: (1) declare acts of Congress unconstitutional (2) declare state statutes unconstitutional (3) substitute its constitutional judgment for that of the President and order the President to perform acts that the President claims are constitutionally privileged (4) order state ofcers to perform acts that the Court has concluded are required by the Constitution D. Case or Controversy and Justiciability 1. A question must be presented to the court as part of a judicially cognizable dispute 2. Article III: a. "All Cases" (1) First three heads of jdx: federal question, ambassadors, admiralty (2) Refers to criminal and civil b. "Controversies" (1) Next heads of jdx: diversity and the "referee" heads (2) Refers only to civil cases II. Prohibition Against Advisory Opinions A. Three kinds of advisory opinions: 1. Decisions merely advising other branches of the government (Correspondence) 2. Decisions where plaintiff has no stake in the outcome 3. Decisions that are not nal because other branches can review them (Hayburn's Case) B. Rules: 1. No legal advice. A federal court will not answer inquiries from a coordinate branch of the federal government about the legality of contemplated conduct. 2. Adverse parties. There must be adverse parties seeking the resolution of a concrete and bona de dispute.

C. D.

E.

F.

3. Finality. The federal court will not decide a case if its decision is liable to be overturned by one of the coordinate branches. Source of the Prohibition: Nothing in Article III prohibits judges from issuing advisory opinions. Justications for the Prohibition: 1. Case Load. However, not historically true -- at time of Correspondences, USSC merely heard admiralty disputes and contractual matters. 2. Lack of Expertise. Without two advocates, justices would have to do all the work researching the issues. Perhaps executive is in better position to develop this expertise. 3. Power. Might be more powerful if they answer questions in the form of cases than in the form of advice; no promise from Jefferson that exec will abide by the answers. Jefferson wanted the answers to come from the USSC because they were a prestigious body; USSC says "if you want our prestige, you have to do it our way." RULE 1: No Legal Advice. 1. The RULE: An Article III court will not answer hypothetical questions of law from a coordinate branch of the federal government about the legality of the contemplated conduct. a. Correspondence of the Justices (1793) Justices decline to answer Washington's questions about international law, stating that to do so would provide advisory opinions and violate the limitations on judicial power established by Article III. Arose out of US status as a neutral country during Naploleonic Wars NOTE: this is not the only possible reading of Article III. Does not say "shall extend and will only extend to . . ." Could interpret advisory opinions to be outside "judicial power." Reasons for ban on advisory opinions: 1) Case Load. Might be true now, but was not true at the time. Jay quit USSC to be governor of New York. 2) Expertise. At the time, executive branch had little knowledge about international law. 3) Power. Perhaps they would be more powerful if they answer questions in the form of cases rather than in the form of advice. 4) No adverse parties. Court would not likely to be as well informed about ramications of the actual consequences of their answers. 5) No premature decisions. Court might eventually be called upon to decide cases in which these legal questions arose, unwise to commit to answers it might reject upon more mature reection. b. NOTE: some states allow advisory opinions. In MASS, "upon solemn occasions," legislature may as the SC questions. Court is not bound by the answer they give. c. KEY: suits specically authorized by Congress may lead to similarly advisory opinions. RULE 2: No executive or legislative revision. 1. The RULE: Article III forbids any judgment of a court that is not nal because a legislative or executive branch can review the judgment. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government. 2. Justication: SOP. Would interfere with independence of the judicial branch by depriving the judgments of nality. 3. Executive Revision. It is a threat to the exercise of Article III jdx to have revision by the exec branch. a. Hayburn's Case (1792). Invalid Pensions Act of 1792 gives those claiming to be injured war vets ability to come before Art III judge to make determination of injury and pay; then forwarded to secretary of war who can overturn "in case of imposition or mistake." Court never heard the case, but ve of six justices found the assignment of these tasks to be unconstitutional because it would violate separation of powers because the executive branch had the nal say. Because it's not nal, it's not a judgement, but rather an advisory opinion. 5

come before Art III judge to make determination of injury and pay; then forwarded to secretary of war who can overturn "in case of imposition or mistake." Court never heard the case, but ve of six justices found the assignment of these tasks to be unconstitutional because it would violate separation of powers because the executive branch had the nal say. Because it's not nal, it's not a judgement, but rather an advisory opinion. RAISED both exec and legislative revision issues: LEGISLATIVE. Even if a claimant were approved by the Secretary, Congress could refuse to pay the pension. EXECUTIVE. Secretary of war could disagree with the court's ndings, make changes. Fletcher Note: Hayburn stands for a sort-of turf protection (power grab), but also a form of discipline for the system KEYWORDS: advisory opinion, nality b. Chicago & Southern Airlines v. Waterman (1948). USSC said federal courts could not review Civil Aeronautics Board decisions awarding international air routes because of provision allowing president to disregard or modify judicial rulings. [I]f the President may completely disregard the judgment of the court, it would be only because it is one the courts were not authorized to render. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government. 4. Legislative Revision a. Gordon v. US (1865). Statute governing court of claims provided for form of revision. Gordon holds that if revision is built into the statute, it's too much like Hayburn's case (no nality). IF it is de facto power (due to sovereign immunity, perhaps), that's okay. b. Glidden v. Zdanok (1962). From 1956-77, Congress provided that any judgments of $100K or less were paid by GAO, but those of more than $100K were to be certied by Sec of Treasury. Glidden addressed issue of whether judge sitting on court of claims was an Article III judge whose opinions must be nal, even for judgments over $100K. Court held that they were, because conrmed by senate, even though nality of judgment was in question. Harlan cited historical record and noted that only 15 instances had the US refused to pay. NOTE: court of claims is now designated as an Art III court. Postum Cereal v. California Fig Nut (1927). Pre-Glidden case. D.C. Circuit had through statute jdx on appeals from PTO on certain patent and trademark determinations, but statute stated the DC circuit's opinion shall only affect the parties, with no stare decisis effect. Court held it had no jdx, because lack of stare decisis it was not a judicial judgment, but rather "a mere administrative decision." c. Plout v. Spendthrift Farm (1995). In Lampf, court construes the statute of limitations in securities violations. Congress passes law to extend statute, authorizes cases to be reopened. Scalia says this is an impermissible legislative revision; says framers were trying to "escape ruins of old English structure." As long as a case has gone to nal judgment, any change of rule must be applied by the court. Fletcher thinks this is ridiculous, because Rule 60(b) allows courts to reopen judgements if a court has made a mistake. d. EXCEPTION: While Congress cannot reopen a nal judgment, it has successfully limited existing decrees: Miller v. French (US 2000). Prison litigation reform act sought to limit the court's ability to institute changes in prison system. Limited judicial power to enter decree; decree had to be dissolved after time. Court sustains; this is a change in ongoing regime. O'Connor: nothing in Plaut or Hayburn restricted Congress's authority to alter prospective relief on previously entered injunctions. 5. Judicial Revision a. The RULE: Prohibition against revision does not apply to judicial revision. Congress (or the courts) can require a judicial judgment to be judicially reviewed. Judicial revision of an earlier decision is not fatal to exercise of Article III b. Tutun v. United States (1926). Art III judges regularly preside over naturalization ceremonies. State provides for no res judicata for these ceremonies. Court holds that naturalization ceremonies/decisions may be set aside in later de novo judicial proceedings.

c. Also, Rule 60(b): On motion and just terms, the court may relieve a party or its legal representative from a nal judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satised, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justies relief. G. RULE 3: No feigned cases. 1. The RULE: Article III courts cannot hear feigned cases in which the parties merely pretend to be adversaries. Without adversary parties, the case is not justiciable because there is no case or controversy. a. US v. Johnson (US 1943). Tenant brings challenge to wartime wage and price controls during WWII. L and T collude to create a suit; L charges more than allowed, and T brings suit, L defends on constitutionality. But T doesn't know what the suit is about, never meets lawyer, doesn't know what damages are. But DOJ becomes notied of suit and US joins as a party. Court holds that if the case is feigned, it cannot be healed by later joinder. 2. Congress cannot obtain legal advice by articially setting up a case. However, strength and scope of this prohibition is not clear. a. Buckley v. Valeo (US 1976). Congress passes campaign nance reform bill; with election coming up, questions are raised about rst amendment problems with limiting $ people can spend. Bill includes provision that any person eligible to vote for president may bring suit in court to challenge any provision; provides accelerated direct appeal to the USSC. USSC accepts cert on a number of questions, and issues holdings. Fletcher thinks this was very bad -- the holding of Buckley was very broad, and the courts lacked knowledge of how campaign nance works. NOTE: different from Correspondence because the opinion was binding and there were adversaries, but still shows problems with feigned cases and why justiciability matters. b. Muskrat v. United States (US 1911). Congress had allotted tribal lands to certain Indians, enlarged group of entitled people. Congress passes law providing for lawsuit between specic Ps and Ds to bring declaratory judgment that 5th amendment was not violated; offers to pay atty fees. Court dismisses for want of jurisdiction. Not clear why -- maybe no "case or controversy," maybe because at the time declaratory judgments were not permitted. Interests of the Native Americans and the government were not at all adverse Congress simply had adopted a statute authorizing the federal courts to issue an advisory opinion on the constitutionality of a statute BUT: precise rationale for the court's holding has been hard to determine; it's possible that Muskrat has been abandoned because of Declaratory Judgment Act. c. Declaratory Judgments. Court has found DJA to be constitutional. South Carolina v. Katzenbach (1966). VRA authorizes a state to seek a declaratory judgment that a proposed change in state voting practices does not violate the Act. Aetna Life Ins. v. Hayworth (1937). First case under DJA, upheld constitutionality of the DJA. 3. Exceptions to the Feigned Case? While the Court will not hear cases in which the parties pretend to be adversaries, often the court will tolerate a certain level of shared interest between P and D. 7

Exceptions to the Feigned Case? While the Court will not hear cases in which the parties pretend to be adversaries, often the court will tolerate a certain level of shared interest between P and D. a. Test Cases. In test cases, a P "manufactures" a controversy in order to challenge a law. Courts generally permit these as long as other justiciability requirements are met. As long as the interests of the parties are genuinely adverse, the fact that the case may have been framed as test litigation does not prevent an Art III court from hearing it. Evers v. Dwyer (US 1958). P rides bus once, refused to obey an order to sit in the back, and got kicked off. Brings suit. Court holds case is justiciable even though P only rode bus for the purpose of instigating litigation. b. Institutional Reform Cases. These pose a special problem; D is typically head of a state institution, often will have sought increased funds from legislature to improve the institution's conditions, so he may want the same result the Ps are seeking. Pelican Bay Cases. Judge Henderson hears case about abuse by prison guards. State of CA does not take appeal, because they know Judge is right and there is a problem to solve. Fletcher argues state does this because no one has the political capital in the state to demand prison reform; a feigned or collusive case in a way. The Gay Marriage Federal Case. CA Attorney General does not intend to appeal if the state loses in the N.D. Cal. case, and CA has not been active in litigating the case. III. Standing A. The RULE: Standing is the determination of whether a specic person is the proper person to bring a matter to the court for adjudication. Requirements for standing are (1) cognizable injury (2) resulting from defendants action (3) which is remediable by the court. In addition, the court often exercises a prudential limitation, requiring (4) the plaintiffs own rights to be violated rather than a third party. B. Justications for the Standing Doctrine 1. Ensuring litigants are truly adverse, and therefore likely to present the case effectively. 2. Ensuring that the people most directly concerned are able to litigate the questions at issue 3. Ensuring that a concrete case informs the court of the consequences of its decisions 4. Preventing the anti-majoritarian federal judiciary from usurping the policy-making functions of the popularly elected branches C. Historical Perspective 1. Article III as a separately trans-substantive doctrine (rules that apply in every case) is a relatively new arrival in the law. Standing and the other justiciability doctrines are largely a creation of the second half of the 20th Century. 2. This doesn't mean that earlier, everyone could sue for whatever they want; it was a character of the legal system. A person X had a legal duty, and Y had a right to enforce that duty in a legal proceeding. 3. But with the rise of the administrative state and the enforcement of public values changed our notions of legal rights and duties, and standing has emerged as the doctrine to limit the court. 4. Ashwander v. TVA (1936). Justice Brandeis's concurrence stresses seven prudential "avoidance rules": a. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding b. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it c. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. d. The court will not pass upon a constitutional question, although properly presented on the record, if there is also present some other ground upon which the case may be disposed. e. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by the operation of the statute. f. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benets 8

The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benets g. Even if serious doubt concerning the validity of an act of Congress are raised, the Court will rst ascertain whether a construction of the statute is fairly possible by which the question may be avoided. h. Fletcher: Frankfurter is faithful to these virtues, but Alexander Bickel tries to turn descriptive into normative. In practice, these virtues are erratic, dishonest, and inconsistent. D. Critique of Standing 1. Dissent in Flast v. Cohen: Standing is a word game played by secret rules. 2. Fletcher: standing is in need of an International Shoe-sized unraveling. 3. The Structure of Standing, W. Fletcher a. Intellectual structure of standing law is ill-matched to the task it is asked to perform b. Abandon the idea that Article III requires an injury in fact c. Instead, standing should simply be a question on the merits of the P's claim. d. Standing as docket control. For years, the court had mandatory jdx, and needed a way to avoid hot potato cases. Since 1988, their jdx has been almost totally discretionary. Standing as a docket control mechanism has outlasted its use. e. Fletcher on Statutory v. Constitutional Rights (1) If duty is statutory, Congress should have unlimited power to dene the class of persons entitled to enforce that duty. (2) If duty is constitutional, the constitutional clause should be seen not only as the source of the duty, but also as the primary description of those entitled to enforce it. (a) Congress should have some, but not unlimited, power, to grant standing to enforce constitutional rights. (b) Nature and extent of that power should vary depending on the duty and constitutional clause in question. E. The Requirements 1. Injury in fact: that P personally suffered some actual or threatened injury 2. Causation: that the injury bears a causal relationship to the challenged conduct of the D 3. Redressability: that the proposed relief will redress or remedy the injury in question. 4. NOTE: Standing is determined at the time of the ling of the complaint. Any later-arising defects are properly determined under mootness. (Laidlaw). F. Injury in Fact 1. RULE. P must show that he personally has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged ofcial conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. 2. Purpose. A P's personal stake in the outcome of the controversy assures that concrete adverseness which sharpens the presentation of issues which the court so largely depends on for illumination of difcult questions. (Baker v. Carr). 3. Fletcher Criticism. Cannot be applied in a non-normative way -- there cannot be a merely factual determination of whether P is telling the truth about her sense of injury. In the hands of the court, the injury requirement has become a normative criterion, with the court saying "we choose not to recognize these kinds of injuries." a. Fletcher's Bicycle Example. F gives a bicycle to daughter D1 and nothing to D2. D2 says, "that's not fair." We say, "the gift to D1 didn't hurt you," but it does -- she feels sad and a sense of injustice. Is this injury not real enough to get her into court to challenge the gift? When F says "it doesn't hurt you," he is saying "I am denying that the familial equal protection clause applies to you." Not an injury in fact, but an injury F has chosen not to recognize as a legal injury.

b. Fletcher's Playground Example. P is being called names on the playground. Injury? 4. Personally Suffered Injury. An irreducible minimum of Article III limit of judicial power is the requirement that a party show he personally suffered actual or threatened injury. a. Insufcient personal injury: (1) Fairchild v. Hughes (1922). P seeks to have the 19th amendment declared unconstitutional. Court (Brandeis) says P's "alleged interest in the question submitted is not such as to afford a basis for this procedeeding . . . it is not a case, within the meaning of Art III 2 . . . and no claim of relief is brought before the courts . . ." (2) Allen v. Wright (1984). parents of black children attending public schools, and argued that federal tax exemptions given to racially discriminatory private schools injured them. Claim they were (1) harmed by the fact government aid went to discriminating schools and (2) harmed by inability to have their public schools desegregated. Court says (1) was not a "judicially cognizable injury." However (2) is a cognizable injury -- children's diminished ability to receive an education in a racially integrated school. (a) NOTE: Ps also suffered a stigmatic harm, but this is not enough. (3) Sierra Club v. Morton (1972). SC sued US Forest Service, claiming that its approval of a new ski resort violated federal statutes and regulations. Claimed "a special interest in the conservation of national parks" and project would adversely affect the aesthetics and ecology of the area and thus they were "adversely affected or aggrieved" under 702 of the APA. Court found no standing, because no injury in fact, "no where did the club state that its members use the area for any purpose, much less that they use in a way that would be signicantly affected by the proposed actions of the Ds." (4) US v. Richardson (1974). P lacked standing to challenge whether the CIA was violating Art I 9 cl. 7, requiring "a regular Statement of Account of the Receipts and Expenditures of all public money." P claimed this harmed his ability to intelligently follow actions of Congress and the Executive. Court said because impact was common to all members of the public, he was not in danger of suffering any concrete injury from the activity. (5) Lujan v. National Wildlife Federation (1990). Ps challenged federal policy lessening the environmental protection of certain federal lands which they claimed to have used. Court said the allegation was too general to establish a particular injury; no standing unless they could demonstrate that they used specic federal land that was being mined under the federal regulations. (6) Abstract interest in the government's proper application of the Constitution and Laws. See Lujan, Valley Forge Christian College v. Americans United for Separation of Church and State (1982). b. Sufcient personal injury: (1) US v. SCRAP (1973). Law students bring lawsuit under NEPA, object to railroad rate increase approved by ICC. Argue that increase will make rail transport more expensive, which will make it more expensive to transport recyclables, which will diminish incentive to recycle, which will lead to more trash in their towns, which will harm Ps' ability to enjoy their towns. (2) Heckler v. Matthews (1984). Congress provided larger benets under SSA to certain women than similarly situated men. Man brought due process suit, and court upheld standing because he asserted "right to receive benets distributed according to classications which do not without sufcient justication differentiate solely on basis of sex." Court wrote that "discrimination itself, by perpetuating archaic or stereotypic notions" or by stigmatizing members of the disfavored group, can cause serious noneconomic injuries (3) Friends of the Earth v. Laidlaw (2000). Ps had standing to challenge the alleged mercury discharges under Clean Water Act because they used the affected area for recreational purposes. Environmental Ps adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. 10

Friends of the Earth v. Laidlaw (2000). Ps had standing to challenge the alleged mercury discharges under Clean Water Act because they used the affected area for recreational purposes. Environmental Ps adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. 5. Injury cannot be merely speculative. a. City of LA v. Lyons (1983). P subjected to chokehold by LA police; P had standing to sue for damages but did not have standing to seek injunctive relief banning chokehold because he was no more likely to be subjected to the chokehold in the future than any person. (1) For a person to have standing to seek an injunction, P must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy. (2) Psychological injury is not enough. b. Lujan v. Defenders of Wildlife (1992). Challenge to a revision of federal regulation that provided that the ESA does not apply to activities abroad. Ps were naturalists interested in studying the Nile Croccodile in Egypt and the Endangered Elephant in Sri Lanka. Court found no injury, because they could not show a likelihood that they would be injured in the future by extinction of the species. For Kennedy, all they needed was a plane ticket. 6. Injuries to Statutory Rights a. Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue, even where the P would have suffered no judicially cognizable injury in the absence of the statute. (from dicta in Warth v. Seldin and Sierra Club v. Morton). b. Lujan was the rst case in which the USSC invalidated an act of congress on the ground that it unconstitutionally conferred standing. c. Trafcante v. Met Life Ins. (1972). Two white residents of apt complex accorded standing to challenge the owner's discrimination against black applicants under Civil Rights Act of 1968. Statute dened "person aggrieved" as "one who claims to have been injured by a discriminatory housing practice." (1) Douglas for majority: statute showed a congressional intent to dene standing as broadly as permitted by Art III. (2) White's concurring opinion suggested that without Civil Rights Act, there wouldn't have been standing under Art. III. d. But Lujan v. Defenders of Wildlife (1992): Congress cannot expand Article III standing; just statutory standing. (1) Kennedy-Souter Concurrence: "Congress has the power to dene injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." So perhaps Congress just has to be very specic in dening the right and the remedy. e. FEC v. Akins (1998). Group of voters had standing to challenge decision by FEC that American Israel Public Affairs Committee was not a political committee subject to regulation/reporting requirements. Breyer wrote that "Congress, by statute, could create a right to information and that the denial of such information was an injury sufcient to satisfy Art III. f. Mass v. EPA (2007). Court upheld the standing of a state to challenge a refusal by the EPA to issue regulations governing greenhouse gas emissions by motor vehicles. (1) MAJORITY (Stevens): While the EPA suit authorization statute made no reference to standing, Mass could bring the action because they were "a litigant to whom Congress has accorded a procedural right" and had quasi-sovereign interests at stake deserving of "special solicitude." (2) MINORITY (Roberts): state had alleged no threat of imminent or particularized injury. 7. Standing under the APA a. APA 702: "a person suffering legal wrong . . . within the meaning of the relevant statute" may bring action. (1) Kenneth Culp Davis. Meaning of 702 should not be derived from 702, but from the legislative history that said injury in fact is required.

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(2) Jaffe. 702 means what 702 says. (3) OLD TEST pre-1970: standing to challenge administrative action was based upon the present or threatened ofcial infringement of an interest protected at common law; upon an interest substantively protected by a relevant organic statute, or upon an adverse economic impact when a relevant statute afforded standing to persons "adversely affected" or "aggreived." (4) Data Processing v. Camp (1970). Justice Douglas tries to respond without resolving the Davis/Jaffe debate. Douglas holds that you need injury in fact and have to be within zone of interests of the statute. Douglas says if you are challenging agency action that does not directly control the person's actions, the plaintiff must show that it is within the zone of interests -- that is, the group intended to benet from the statute. (5) Clarke v. Sec. Industries Assn (1987). White claries and limits the Zone of Interests test: "test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Essentially, "we read broadly any statute perporting to give standing of review of admin actions." 8. Other Types of Injury Sufcient for Standing a. Injury may be small. No requirement that the injury be of any particular size. (1) Flast v. Cohen (1968). P challenged expenditure on church/state grounds. Had an injury, even though only a few cents of total tax payment went to expenditure. (2) Injury need not be economic. (a) Trafcante. injury to interest in living in a racially integrated environment (b) Bakke. opportunity injury (denial of change to compete for seats in medical program) I. BUT Bakke was equal protection. In EP, injury is the denial of ability to compete. (3) Injury can be aesthetic or environmental. (a) Lujan: desire to observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for the purposes of standing. (4) Qui Tam Actions. Actions brought on behalf of the government (a) Vermont Agency of Natural Resources v. US ex rel Stevens (2000). Upholds qui tam act under theory that P is acting as the US's assignee. 9. Injuries Not Sufcient for Standing a. Injury cannot be merely general. Cannot be shared generally by population, must affect the P in particular. (1) Allen v. Wright (1984). (2) US v. Hays (1995). Ps live in one district, and bring equal protection challenge to racial gerrymandering of another district. Court says because they were not in the allegedly gerrymandered district, they haven't suffered an injury. (3) Lujan v. National Wildlife Federation (1990) (4) Friends of the Eatth v. Laidlaw G. Causation 1. The RULE: P must show that the injury was caused or is fairly traceable to the D's alleged wrongdoing. 2. Linda RS v. Richard D (1973). State of Texas statute says fathers of illegitimate children are not required to pay child support. In another suit, the USSC says discrimination between legitimate and illegitimate children is violation of equal protection. L brings suit not just to statute, but to practice of Texas prosecutors to only go after fathers of legitimate children. Court nds no standing because of causation problem; even an injunction commanding state prosecutors would not ensure that the mother would receive any additional child support money; relief requested would only result in the jailing of the child's father. Possibility that prosecution would lead to payment of support was speculative.

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a. NOTE: court mixes up redress with causation. 3. Warth v. Seldin (1975). Ps challenge city's zoning practices. Court nds lack of standing; might not be able to live in Penneld even if ordinances were invalidated. 4. Allen v. Wright (1984). IRS doesn't give tax exempt status to schools that discriminate; parents of black children in school districts subject to desegregation orders try to get the IRS to change enforcement policies. Court (O'Connor) holds that causation is wanting; unclear what the practical effect of the policy was; the injury is indirect and results from the independent action of some third party not in court; IRS did not cause the segregation. a. Brennan Dissent: This suit is being dismissed at 12(b)(6) phase, before we even know the facts. Maybe there is a causal relationship; maybe experts can show it. H. Redressability 1. The RULE: P must allege and prove that the personal injury is likely to be redressed by the requested relief. Vindication of the rule of law is not enough to remediate one's injury. 2. Focuses on the degree to which the proposed remedy would eliminate or redress the harm P allegedly suffered. 3. An inherently factual question (hard to make at outset of lawsuit). 4. Also depends on how the court characterizes the injury (Linda RS) 5. Causation and redressability are assessments of probability 6. BUT suits for injunctive relief and declaratory relief can pose a closer question, especially when Ps seek to compel the government to take action against some third party. 7. Redressable: a. Allen v. Wright (1984). Ps did not show how enjoining the exceptions would create a signicant impact for desegregation. Court also refused to remedy that would seek restructuring of apparatus established by Exec Branch to do its legal duties; SOP prevents such a sweeping injunction. b. Simon v. Eastern Ky Welfare Rights Org (1976). Ps challenged IRS ruling that reduced obligation of a hospital to provide care to poor people while still retaining tax status of a charitable organization; no standing because no showing that a different IRS ruling would make the hospital provide more care to the poor. c. Linda RS v. Richard D (1973). Only a speculative connection between desired result (payment of child support) and remedy sought (criminal prosecution of delinquent father). Court misreads what P is asking for -not asking for an interference with prosecutorial discretion through an order they proscute, merely asking that prosecutors do not take into account the legitimacy of the child. (1) Fletcher on Linda RS: wrong and desperately wrong. P's contention is supported that the threat of criminal prosecution will have a signicant effect on the behavior of delinquent fathers. d. Warth v. Seldin (1975). No showing that the invalidation of the challenged zoning laws would have resulted in the construction of the housing that Ps could afford. Declaring the ordinances unconstitutional would not create housing for the Ps. I. Prudential Standing 1. RULE: Even if a P has a sufcient stake in the dispute to satisfy Article III, a federal court may refuse to hear the case because of "prudential rules of standing that, apart from Article III's minimum requirements, serve to limit the role of the courts in resolving public disputes" if Congress has not been explicit. a. FLETCHER: A prudential standing question arises in cases where the plaintiff has Article III standing, but is close to the Article III line, and where Congress has not been explicit in granting standing. The Court has not been systematic in telling us precisely what those things are, but they at least include such things as degree of alleged harm, redressability, etc. b. "Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction." c. Where stake of P is minor, some issue about chain of causation, some issue about the various constitutional components of standing, but Art III standing is not lacking, the court may nd no standing on prudential grounds. 13

Where stake of P is minor, some issue about chain of causation, some issue about the various constitutional components of standing, but Art III standing is not lacking, the court may nd no standing on prudential grounds. 2. Prudential standing under a statute. Ps attempting to sue under implied cause of action can be denied standing if statute is unclear a. Rule is in effect a plain statement rule; somewhat arbitrary fourth standing requirement in statutory standing cases. 3. Taxpayer Standing. a. General RULE: no taxpayer standing. (1) Frothingham v. Mellon (1923). Taxpayers could not rely on their status as taxpayers to confer standing to challenge allegedly illegal federal expenditures (no use of the word "standing" in the opinion). (2) Doremus v. Board of Education (1952). State taxpayer sought to challenge required reading of Old Testament in public schools; court denied standing because no specic expenditure was challenged. b. EXCEPTION: Taxpayer standing is allowed in limited circumstances to challenge Congressionally approved expenditures alleged to be in violation of the Establishment Clause. (1) Flast v. Cohen (1968). Taxpayer has standing to challenge federal expenditures in support of religious institutions. (a) Two part test for taxpayer standing: I. Expenditure must be an exercise of the taxing and spending power under Art I 8 rather than "incidental expenditure" II. Expenditures must be prohibited by some specic constitutional limitation (b) Stewart Concurrence. this is an Establishment Clause case, and there is something unusual and important about this Clause -- it's specic purpose is for those taxpayers who don't want federal money going to religious institutions they don't belong to. (2) Cutbacks on Flast (a) Valley Forge Christian College (1982). Government is giving away federal property to a Christian college. Taxpayers bring suit. Court holds no standing because not a federal spending under Art I 8 (even though still an Establishment Clause case). (b) Hein v. Freedom From Religion Foundation (2007). White House grant program without specic federal statutory authorization, goes to centers within federal agencies that share faith-based activities. No standing because no specic authorization under Art I 8. I. Fletcher: they might as well have overruled Flast. 4. Generalized Grievance as Constitutional Bar a. Lujan: court treated the bar on citizen standing as constitutional b. But AKINS: federal statute created a right to information and the denial of this right was a concrete injury sufcient for standing. J. Congressional Power to Confer Standing to Sue 1. The RULE: Congress cannot confer on Article III federal courts jurisdiction not authorized by Article III 2. Private Attorney General Cases. See Lujan, FEC v. Akins above. K. Third Party Standing 1. The RULE: Only if the person whose right is centrally at stake is somehow impeded from asserting that right and someone else is a protector of that right will the lawsuit be allowed. 2. Three major exceptions to the prohibition against third party standing: a. When Third Party will nd it difcult to assert her own rights. (1) Bush v. Gore (2000). Florida voters are the ones that may have had their right to vote compromised, but they cannot organize to bring a suit. (2) Eisenstadt v. Baird (1972). Doctor distributed contraceptives to non-married couple; court allowed him to assert rights of unmarried persons, even though unmarried persons are not themselves subject to prosecution. 14

Eisenstadt v. Baird (1972). Doctor distributed contraceptives to non-married couple; court allowed him to assert rights of unmarried persons, even though unmarried persons are not themselves subject to prosecution. b. When there is a close relationship between the party and the third party. (1) Doctor-patient, but only when the doctor faces criminal prosecution (a) Tileston v. Ullman (1943). State statute prohibits use or distribution of contraceptives. Court denies doctor standing to assert rights of his patients. Failed to allege a personal economic interest. Fletcher: court misreads P's complaint to get their desired outcome -- P had said in his complaint that he would be criminally prosecuted, so injury would be to him. (2) Teacher-student (a) Pierce v. Society of Sisters. School accorded standing to challenge an Oregon law requiring all children to attend public school: I. close relationship to the parents II. school was part of the regulated activity (3) Vendors-customers. (a) Craig v. Boren (1953). Boy and vendor bring suit to challenge state law permitting women under 21 to buy booze but not men. Boy turns 21 before suit. Court allows vendor to bring suit; vendor also has economic injury. I. MP NOTE: be sure to analyze the relationship; consider the impact on third-party legal interests (b) Barrows v. Jackson (1953). When racially restrictive real estate covenants were permitted, P brought suit on ground it was unconstitutional and involved state action. Court allows seller to assert the rights of a black would-be buyer to bring suit (c) Trafcante (1972). Is this a 3PS case? Both share injury of not being able to live together, but not the same kind of harm; B renter is being denied place to live, and W renter is being denied a diverse community. (d) Havens Realty v. Coleman (1982). Black "tester" who identies realtors discriminating on basis of race, then brings suit. Injury in fact? P does not actually want to live there, this is his job. COURT: P is given right by statute not to be lied to; fact he was lied to is his harm. c. Overbreadth Doctrine. A person generally can argue only that a statute is unconstitutional as it is applied to him or her BUT overbreadth doctrine permits a person to challenge a statute on the ground that it violates First Amendment rights of third parties not before the court. 3. NOTE: Third party ALSO has to meet Art III standing requirements 4. Does it depend on the merits? a. CONTRACT EXAMPLE. In a third-party beneciary contracts case, intended beneciary is allowed to sue to enforce the contract, but an incidental beneciary is not. b. PROPERTY EXAMPLE. Vested remainderman may bring suit against holder for waste; contingent remanderman may not. c. These questions were never thought to be anything but decisions on the merits. But here, court treats them as if they could be decided on 12(b)(6). d. Gary Gilmore's Mother. Court says mother can't intervene to assert death row inmate's constitutional rights. Even thou L. Bearing of State Law on Standing 1. State courts are not bound by Article III, so they may hear suits brought by Ps without Article III standing, including suits based on federal law. a. Tileston v. Ullman (1943). Connecticut Supreme Court reached the merits of doctor's case re: contraception law, but USSC dismissed for lack of standing.

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(1) Fletcher: court wanted to avoid this case: (a) Misdiscribes his interest and what is on the record (b) T said "if I prescribe this, I will go to jail." (c) Mandatory USSC jdx at that time b. If state court issues an opinion interpreting federal law, USSC can hear an appeal by a losing D. (1) ASARCO v. Kadish (1989). Ps without Article III standing obtained state court judgment that leases of state-owned property were illegal under federal law (state court thinks they are sweetheart deals). Ds sought USSC review. Court held that even though Ps would not have standing to bring case in federal court, there was standing; Injury had arisen in the state court's ruling, not from the original grounds of the lawsuit. Thus, federal courts had the power to vindicate federal rights taken away by state courts. (a) Fletcher: this gives us the exact opposite of the situation 1789 JA 25 contemplates I. 25: If federal right is denied, USSC has jdx; otherwise, no jdx II. Here, a federal right is granted, and USSC reviews to overturn c. If a P loses in state court based on a federal claim, the Supreme Court CANNOT hear the appeal (1) Doremus v. Board of Education. State taxpayer brought state court challenge to required bible reading in public schools based on First Amendment. NJ state court held against P on the merits; USSC declined to review because no Art III standing. Leaves NJ decision in tact on the merits. (a) BUT: who has the legal right to enforce the duty? IV. Mootness A. Description of the Mootness Doctrine 1. The RULE: An actual controversy must exist at all stages of federal court proceedings. If events subsequent to ling of the case resolve the dispute, the case should be dismissed as moot. A case will be mooted if (1) P dies, (2) change in events make case unnecessary, (3) parties settle the matter, or (4) change or repeal in the law. 2. Is Mootness an Art III requirement or prudential requirement? a. In early cases (Liner v. Jafco (1964) and DeFunis v. Odegard (1974)), the court characterized mootness as an Art III requirement. If a case is moot, it is no longer of any direct concern to the litigants. Court's decision would only resolve a hypothetical question (court would give an advisory opinion). b. However, more recent cases characterize mootness as a exible doctrine, potentially not reconcilable with Art III limits: (1) Friends of the Earth v. Laidlaw (2000). "Standing in a time frame" argument rejected. (2) Also, the exceptions to the mootness doctrine suggest mootness may not be a constitutional limitation: (a) Cases are not dismissed as moot if there are secondary/collateral injuries (b) If the issue is deemed capable of repetition yet evading review (c) If D voluntarily ceases an allegedly illegal practice but is free to resume it at any time (d) If it is a properly certied class action suit 3. Subconstitutional Doctrine. Cases that are not moot in the Art III sense may nevertheless be dismissed for reasons of prudence or sound judicial administration. a. EXAMPLE NEEDED 4. Mootness at the State Level. Generally, much more relaxed standard in state courts: "if Q of continuing public interest, it is for our purposes no longer moot." Fletcher has not found a state that adopts the USSC mootness standard. B. Relation of Mootness and Standing 1. If a case has been fully litigated and only becomes moot toward the end of trial or on appeal, the court can retain jdx to decide the fully briefed issues.

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2. DeFunis v. Odegaard (1974). P brings suit to challenge law schools afrmative action admission policy, claiming it violated equal protection clause. Lower court nds for P, and school lets him enroll. By the time it gets to Sup Ct, P has almost graduated. Case is moot. a. NOTE: DeFunis is at USSC on cert, not mandatory appeal. Both sides argue it was not moot, but court nds that mootness is Art III limit in this case. b. DOUGLAS's DISSENT. Hated afrmative action; weird back-to-nature dissent discussing Indians in the Northwest. c. BRENNAN's DISSENT. Not moot -- D could get sick and have to take another semester. Cites (1) no want of adversary contest in this case and (2) disservice to public interest -- we should try to avoid repetitious litigation. d. THE OUTCOME. Case is remanded to Washington SC for "proceedings that may be appropriate." WSC rules on the merits that the afrmative action program is constitutional. e. ALTERNATE WORLD PROBLEM. If the Washington Supreme Court had held the statute was unconstitutional and the school continued the program, a P could bring suit in state court, the school could remove to federal court, and the district court would not be bound by the WSC opinion. But it would be barred by 28 USC 1738, nonmutual collateral estoppel, from relitigating the state court judgment. Thus the issue could never make it back to federal court. THE POINT: when there are different standards of justiciability between federal and state court, we run into major problems 3. Friends of the Earth v. Laidlaw (2000). Garbage dump is sued by environmental group for violating standards. In the course of the case, D closes dump, but operates others. Court uses voluntary cessation of harm exception -because D can re-open dump at any time, case is not moot. Court rejects "standing in a time frame" description of mootness; identies several exceptions to mootness that would be unconstitutional if mootness was just "standing in a time frame." a. Renquist: said mootness was not an Art III doctrine b. Ginsburg: mootness at the beginning of the case is different than mootness later in the proceedings. Her justications: (1) Sunk costs of litigation (2) Actual course of conduct in the past frames litigation in a factual context and thereby focuses judicial decisionmaking (3) unlawful cessation of past injury deprives a D from any moral entitlement to freedom from judicial intervention (4) want to stop the "capable of repetition yet evading review" problem (5) important public interest in protecting legal system from manipulation by parties. c. Scalia's Dissent: mootness is standing set in a time frame; it is an Art III limitation C. Exceptions to the Mootness Doctrine 1. Collateral Consequences. The RULE: Case is not moot if a secondary or collateral injury survives after the P's primary injury has been resolved. a. In Criminal Cases, appeal is not merely moot because sentence has been served. There are collateral legal consequences stemming from the conviction; ability to vote, get a job, susceptibility to temporary restraining orders, stigma from criminal record. b. In Civil Cases, a P seeking reinstatement and back pay for alleged discrimination can continue to pursue even if reinstatement is granted or no longer sought. 2. Voluntary Cessation of Activity. The RULE: The fact that a D has voluntarily discontinued a challenged activity does not necessarily render a case moot; D cannot moot and settle a case, then return to D's old ways. a. Narrow exception; only if there is no reasonable change that the D could resume the offending behavior is the case deemed moot.

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b. FOTE v. Laidlaw (2000). Voluntary compliance with permit and closing facilities was not enough; Ds were not legally bound to stop activity. c. Rationale: (1) If D could render a case moot, public interest in adjudicating legality of conduct would be frustrated (2) D, having obtained strategic dismissal based on mootness, could begin the conduct again. 3. Capable of Repetition, Yet Evading Review. The RULE: A case is not moot if the question presented can systematically evade review because it remains a concrete controversy for only a short time; a case need not be dismissed as moot if the situation could repeat as to the now mooted party, and yet again evade review. a. The Standard: unclear. maybe "reasonable expectation" or "demonstrated probability." Not a mere "physical or theoretical possibility." b. Some injuries occur and are over so quickly that they will always be moot before the federal court litigation process is complete. (1) Roe v. Wade (1973). P had baby by the time case was heard, no longer wanted abortion. But could need one again later. c. Requirements: (1) must be unreasonable to expect a challenge to survive the cycle (election cycle, pregnancy, etc.). (a) In newer cases, there is also a requirement that conduct occurs with respect to the specic P. (b) DeFunis (1974). Would not apply here, because Defunis would not be applying to law school again. (c) In older cases, capable of repetition to anyone is enough. I. Southern Pacic Railroad v. ICC (1911). Commission had issued cease and desist order that had expired, no showing that the Commission was going to issue similar orders in the future. (2) similar issues are likely to arise between the parties in the future. d. Evidence of Prudentiality of Mootness Doctrine? Renquist argued that this exception suggests mootness is not an Art III limitation. D. Mootness in Class Actions. The RULE: If a class representative is mooted out, the fact that there is a certied class action saves the case from mootness. 1. US Parole Commission b. Geraghty (1980). P sought parole from federal prison but was denied because he failed to satisfy the criteria of federal parole release guidelines. Brought class action challenging constitutionality of guidelines, but class cert was denied. G challenges class cert decision, but then gets out of prison on an unrelated matter. Court allows the challenge to go forward, citing "exible character" of mootness in class actions. 2. Evidence of Prudentiality of Mootness Doctrine? Court has taken a exible approach to mootness in class action suits. E. Disposition of Mooted Cases in the Federal System 1. Vacatur in Federal Courts a. If a case goes moot while on appeal but before appellate court has time to review, parties are entitled upon request to a vacation of the judgment of the lower court. But you have to ask for it. b. Rationale: District court may have been wrong, so there are adverse consequences coming out of the decision even though the parties are not interested in litigating it. c. US v. Munsingwear (1950). Established practice of the court in dealing with a civil case that has been mooted on appeal is to reverse or vacate the judgment and remand with a direction to dismiss. d. BUT parties cannot collude to get a judgment vacated to escape the precedential effect of a lower judgment (1) US Bankcorp Mortgage v. Bonner Mall (1994). Bankruptcy code question; parties reach settlement that mooted case after USSC accepted petition for review. D asks to vacate judgment below; and court refuses. Scalia: mootness by reason of a settlement does not ordinarily justify vacatur of a judgment under review. Judicial precedents are presumptively valid and valuable to the legal community; they are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by vacatur. 18

mooted case after USSC accepted petition for review. D asks to vacate judgment below; and court refuses. Scalia: mootness by reason of a settlement does not ordinarily justify vacatur of a judgment under review. Judicial precedents are presumptively valid and valuable to the legal community; they are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by vacatur. (a) RULE: Mootness has to arise out of some action "independent of the parties" for court to allow vactur under Munsingwear. 2. Mootness and State Court Decisions. a. RULE: Mootness on a question of federal law is itself a question of federal law. (1) Liner v. Jafco (1964). State court held the federal action was moot; USSC said "mootness is a question of federal law upon which we must pronounce nal judgment." V. Ripeness A. Ripeness Dened 1. Ripeness doctrine seeks to separate matters that are premature or review because the injury is speculative and may never occur from those cases that are appropriate for federal court action. a. Requires that a dispute have progressed beyond the point where a legal question is merely hypothetical b. Designed to ensure that an actual, immediate and concrete controversy is presented to the court. 2. Ripeness History a. The concept of ripeness is new; it does not show up in Art III discussions until the DJA in 1934; prior to the DJA, the only way you could get preenforcement review was an injunction. (1) For injunction, normal equitable rules apply (2) Purpose of DJA -- to get relief for people who couldn't get an injunction (3) EXAMPLE. Apartment rules say "no domestic pets." You want a tiger. Can you get a ruling before you invest in a tiger? This is not a situation where injunctive relief would help you. 3. Constitutional and prudential doctrine: a. Part of the case or controversy limitation of Article III b. If the question is too hypothetical/abstract, then the question looks like an "advisory opinion" c. Some cases may nevertheless be found not ripe for adjudication because of prudential reasons. (1) EXAMPLE. Abbott Labs' "Balancing Test." Fact that you are balancing hardship to the parties makes the test appear to be not Art III. d. Distinguishing from Standing. Standing focuses on whether the type of injury alleged is qualitatively sufcient to fulll the requirements of Art III and whether the P has personally suffered the harm, whereas ripeness centers on whether that injury has occurred yet. 4. Justications for Ripeness a. Ensures judges have facts on which to base opinions b. Stops courts from issuing advisory opinions 5. Critiques of Ripeness a. Impossible to completely separate it from the merits. (1) Scharf Article. Depending on view of the merits, judges will have different views on what law says. Ripeness only appears where the court is unsure about the statute's applicability; that's why the court needs the additional factual developments. b. Implicitly imposes a higher pleading standard. c. Often used to avoid politically challenging questions. Court has used mootness (and standing in general) to avoid interpretations of establishment clause, equal protection clause, etc. B. UPW v. Mitchell (1947). Congress passes Hatch Act to protect federal workers from political pressure; forbade workers from taking political action. Ps are federal workers interested in being politically active. 12 workers, including P, bring suit under DJA challenging statute's constitutionality. Only P has actually performed political actions. Court (Reed) nd only P's case is ripe; "such generality of objection is really an attack on the political expediency of the Act, not the presentation of legal issues." 19

from taking political action. Ps are federal workers interested in being politically active. 12 workers, including P, bring suit under DJA challenging statute's constitutionality. Only P has actually performed political actions. Court (Reed) nd only P's case is ripe; "such generality of objection is really an attack on the political expediency of the Act, not the presentation of legal issues." 1. Critiques of UPW: Rights of the parties would have been determined, and a judgment would have res judicata effect; would not be an advisory opinion (but on the other hand, more facts would have "sharply dened" the controversy. 2. Fletcher's take: Keep in mind that the DJA is brand new, and court was uncomfortable with pre-enforcement review. Also, I think this case was overruled by Steffel v. Thompson (below). C. The Abbott Labs Test. The most widely employed doctrinal formulation for ripeness. 1. Court must evaluate two consideration: a. Fitness of the Issues and Record for Judicial Review b. Hardship to the Parites c. Abbot Labs v. Gardner (1966). FDA rule requires established name of drugs to be printed in half-size type next to trade name every time trade name is used. Statute doesn't say "every time," but regulation does. Drug companies bring action challenging rule before it has been enforced. Court nds ripeness, introduces two-step test: (1) tness of issues for judicial decision and (2) hardship on the parties. (1) The legal issue is clear. do companies have to follow the rule EVERY time? (2) The hardship is present. Will affect packaging decisions; companies will either have to break the rule and risk some agency action. Trust of the public is important (enforcement action could tarnish the brand). (3) Fletcher's note: not an Art III challenge. Court is using a balancing test, which is incompatible with a bright-line Art III determination. d. Toilet Goods v. Gardner (1967). Companion case to Abbott Labs. TG challenges FDA regulation that said manufacturers of color additives give "free access" to FDA inspectors. Court held that case was not ripe; regulation said FDA "may" under certain circumstances order inspection and certication of additives "may" be refused to those who do not allow FDA to inspect. (1) STEP ONE. Court concluded that waiting for application of the rule would put judicial review "on much surer footing." (2) STEP TWO. No hardship -- regulation would not be felt immediately by manufacturers in conducting day-to-day affairs because they were already under a statutory duty to permit reasonable inspections. If Ps refused inspections, they'd be denied certication services, which manufacturer could promptly challenge. e. The TEST: (1) Fitness of the issues and record for judicial review. (a) The more a question is a purely legal issue, the analysis of which does not depend on factual context, the more likely the court will nd ripeness. (b) Abbott Labs. Parties rested this issue on a question of law (did Congress grant the agency this sort of authority to act?) (c) If factual question, may need facts to decide. (2) Hardship to the parties. Factors: (a) direct effect on everyday business (b) failure to comply would result in substantial criminal/civil penalities (c) regulation requires immediate and signicant change in behavior. (d) The more speculative and uncertain the harm, the less likely it is that review will be granted. f. Three situations in which the court has found enough hardship to justify preenforcement review: (1) ONE. Choice between possibly unnecessary compliance and possible conviction. (Individual faces with choice between foregoing allegedly lawful behavior and risking prosecution with substantial consequences. (a) Ex: Abbott Labs (see above) (b) Steffel v. Thompson (1974). P wants to distribute leaets, and his companion has already been arrested for doing the same. 20

Steffel v. Thompson (1974). P wants to distribute leaets, and his companion has already been arrested for doing the same. (c) Adler v. Board of Education (1952). Teachers were challenging New York statutes that required the dismissal of public school teachers who advocated the "doctrine that any government in the US should be overturned by force or violence" or belonged to any organization so believing. Ps brought preenforcement action, arguing statute imposed invalid limitations on freedom of speech, press and assembly and membership list signicance violated due process. Case went to the merits (statute was constitutional, so implictly held it to be ripe), but Frankfurter saw ripeness problem. (d) BUT: UPW v. Mitchell. Ps had to violate the statute to get into court. I. BUT BUT AFL-CIO (1973) (same facts as in Adler, but court found the case ripe). (2) TWO. Hardship where enforcement is certain. (a) Enforcement of the statute or regulation is certain and only impediment to ripeness is simply a delay before the proceedings commence. (3) THREE. Hardship because of collateral injuries; while primary injury is not ripe, other injuries exist to make the case justiciable (a) Duke Power v. CESG (1978). Federal law capped nuclear power plants liability at $500M. Citizens would not actually be harmed until power plant fails, but court held that property value injury had occurred and made case ripe. D. Ripeness and the Merits. In some instances (takings claims), a nding by a federal court of lack of ripeness has the ultimate effect of forcing a claim into state court. 1. Williamson County Regional Planning Comm'n (1985). Ps bring regulatory takings claims, arguing zoning regulations deprive them of property. Court says you can't come into federal court challenging a regulation as an unlawful taking under 5th amendment until you have exhausted your state remedies and are entirely sure this is what state will do; until you have done this, case is not ripe. a. Forces Ps into state court. b. Justication: so much wiggle room in regulatory takings, so much back-and-forth that it's very difcult to know how the regulation will be applied before it is enforced. 2. San Remo Hotel v. City of SF (2005). Court holds that state decision in takings claim has res judicata effect against P. Ps own hotels in SF subject to regulation requiring them to stay "residential." Gets judgment under law from state court that says "no taking," then enter federal court, but barred by 1738. 3. Fletcher: I expect these cases to be overruled, because they've put regulatory takings entirely in the hands of the states, even though it is a federal right. E. Ripeness as a Prudential Doctrine with Political Overtones 1. Court may nd a case unripe because it views a decision as politically inexpedient or does not favor the type of relief sought. a. O'Shea v. Littleton (1974). 19 Ps in Illinois bring complaint against state ofcials, alleging substantial statesponsored discrimination in judicial system; magistrate and judge are discriminating. Court nds no ripeness; no Ps could show they would come before the judge or magistrate in the future, and only allege a general violation of constitutional rights. (1) Underlying structural reason why the court is unwilling to get involved: doesn't want to tell the state court how to do its business. No simple relief here; would require some sort of structural decree, which court is trying to move away from. b. City of LA v. Lyons (1983). P in civil rights case had been subjected to chokehold by police; chokehold had killed a number of people in the past; P sought injunction barring chokehold in the future. Court: no standing to request injunction because no ripeness; P would have to show he was likely to be charged again. (1) Again, underlying structural reason: court doesn't want to apply an injunction telling police how to apply chokeholds 21

Again, underlying structural reason: court doesn't want to apply an injunction telling police how to apply chokeholds 2. Justiciability and Institutional Remedies. When Ps attempt to challenge institutional behavior through injunction, the remedies are expensive, delayed, uncertain, and difcult to police/enforce. In cases like O'Shea and Lyons, we see the Court reluctant to step in when other solutions may exist (in Lyons -- coercion through liability for damage, and in O'Shea -- political upheaval or remedial action at the state level). VI. Political Question Doctrine A. Label applied to a variety of questions that fed courts will not adjudicate. 1. Certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even though all of the jurisdictional and other justiciability requirements are met. 2. Not an Article III "case or controversy" limitation, but rather a constitutional SOP or prudential limitation. A case presenting a political question simply cannot be decided, no matter how ripe or live the dispute and no matter how great the P's personal stake. B. Standard formula from Baker v. Carr: 1. Textually demonstrable constitutional commitment of the issue to a coordinate political branch. a. Two ideas here: (1) Discretion Theory. Textual commitment may serve as shorthand for describing textual assignment of "discretion" to another branch. (Souter's concurrence in Nixon: coin toss would be abuse of this discretion) (2) Interpretive Authority Theory. Could suggest a constitutional assignment of exclusive interpretive authority to a branch other than the judiciary (more like Renquist's view in Nixon). (3) In either case, the court still must interpret the underlying constitutional provision to determine where the relevant discretion or interpretive authority is vested. This may satisfy Marbury's requirement that the court "say what the law is." 2. Lack of judicially meaningful standards for resolving the dispute a. This might mean there is simply no law to apply. Or it might mean that a standard has not emerged yet. (1) Souter's Coin Toss Hypo. Perhaps the court does have meaningful standards for determining if this is a reasonable resolution of the dispute (2) Due Process Alternative Universe. In an alternative universe, courts could have determined that "due process" was a FQ, because of lack of judicially meaningful standards. Instead, they've been making up the standards for the last 150 years. (3) The Gerrymandering Story. (a) Vieth v. Jubelirer (2004). Scalia's plurality opinion cites absence of judicially manageable standards as ground for holding that a challenge to political gerrymander of Pennsylvania was a nonjusticiable political question. "No constitutionally appropriate and judicially manageable standards for determining when state legislatures have gone too far" in designing voting districts. I. Kennedy concurred, but declined to pronounce partisan gerrymandering claims categorically nonjusticiable. II. Stevens dissented, nding same framework for racial gerrymandering acceptable: (1) irregularity of district lines, (2) purpose behind the line drawing, (3) process by which the schemes were enacted, (4) other evidence of improper considerations motivating the decisions. III. Plurality argued Stevens' framework were not "discernable in the Constitution." But book makes argument that strict scrutiny and rational basis review are also not discernible in the Constitution. 3. Impossible to decide without an initial policy determination of a kind clearly for nonjudicial determination 4. Impossible to decide without expressing a lack of respect due coordinate branches of government 5. Unusual need for unquestioning adherence to a political decision already made.

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C.

D.

E.

F.

6. Potential for embarrassment from multifarious pronouncements by various departments on one question Underlying Considerations: 1. Separation of Powers. Compels courts to recognize the limits of judicial competence and to leave certain issues to be authoritatively resolved by the exec and legislative branches. 2. Amenable to Judicial Resolution. Legal process concern; does the court have the tools to make this determination? Is this the sort of thing that an adversarial trial-type system can adduce? 3. Prudence. Is there an unusual need to defer to another branch's decision? Criticisms of the Doctrine: 1. Separation of Powers. Judicial role is to enforce the consitituion; court fails to do its job and play its constitutionally mandated role under Marbury when it leaves constitutional questions to other branches. 2. Confuses deference with abdication. Cases 1. Nixon v. US (1993). Former judge is impeached by House; Senate "tries" him and he is removed from ofce. Judge brings action, arguing procedure used by Senate to "try" him (committee, then vote by Senate) is not "trying" him in sense intended by Impeachment Clause. Court holds that this is a political question. a. Renquist's opinion: Textually demonstrable constitutional commitment to coordinate political branch: Constitution gives Senate the power to "try" a judge, and interpreting "try" has been committed to Senate. This includes judicial review. We will not overturn their judgment. b. White's concurrence: would reach merits and nd that Congress's interpretation of "try" is acceptable (MORE HERE). "Sole power to try" doesn't mean "sole power to decide what a trial is. c. Souter's concurrence: "it seems fair to conclude that Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy this duty to "try" impeachments. But if Senate were to act in a manner seriously threatening the integrity of its results, say by using a coin toss, or simply deciding that an ofcer of the US is a "bad guy," judicial interference might well be appropriate. 2. Baker v. Carr (1962). "The case that started it all (besides Marbury)." No changes to district apportionment from 1900 to 1960s, even though countryside empties out and urban areas ll up. So by time of the case, rural districts have much more power. At this time, the precedent was that reapportionment without involvement of race issue is a political question. Majority by Brennan nds no political question -- federal courts can hear equal protection claims against state apportionment schemes. a. Frankfurter's Dissent: this is a political question! 3. Bush v. Gore (2000). Judges stop a political process. Court had two options: (1) judicial trainwreck, in which it tarnishes its image, or (2) political trainwreck -- a long and messy political ght, but one that is specically set out by the Constitution. Court opted for the rst option. Fletch: "decision of the court to intervene was a terribly awed decision." Specic Subject Matter Areas Where the Political Question Pops Up 1. Guarantee Clause. a. Luther v. Borden (1849). Guaranty Clause, "the US shall guarantee to every State in the Union a Republican Form of Government," could not be used to challenge the validity of Rhode Island state government 2. Constitutional Amendments. a. Coleman v. Miller (1939). Court "afrmed" judgment of SC of Kansas refusing to restrain Kansas Sec. of State from certifying that state has ratied the Child Labor Amendment 3. External Relations a. Goldwater v. Carter (1979). Vacated a lower court judgment holding that president had authority to terminate a treaty with Taiwan without the approval of Senate. Court held it was a political question; Congress and President should duke it out. 23

Goldwater v. Carter (1979). Vacated a lower court judgment holding that president had authority to terminate a treaty with Taiwan without the approval of Senate. Court held it was a political question; Congress and President should duke it out.

Congressional Control of the Distribution of Judicial Power Among Federal and State Courts I. History and Background
A. The Text of Article III 1. Jurisdiction of the Supreme Court: a. Art III 1: The judicial power of the United States, shall be vested in one Supreme Court . . . b. Art III 2: In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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. 2. Jurisdiction of Inferior Courts: a. Art III 1: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. b. The judicial power shall extend to (1) all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-(2) to all cases affecting ambassadors, other public ministers and consuls;-(3) to all cases of admiralty and maritime jurisdiction;-(4) to controversies to which the United States shall be a party;-(5) to controversies between two or more states;-(6) between a state and citizens of another state;-(7) between citizens of different states;-(8) between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. (9) In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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. B. Debate on Congress's Power to Limit Federal Jurisdiction. 1. Justice Story's View in Martin v. Hunter's Lessee. a. Story reads Art III as mandating the vesting in the federal courts of the entire judicial power described in Art II. 2. Professor Amar's View. a. First three "heads" of jurisdiction -- federal question, cases involving ambassadors, and cases of admiralty, include the word "all," and the rest do not. For these rst three, federal power should extend to all cases. But Art III does not require that the full extent of the constitutionally authorized jurisdiction be vested in other categories of cases (like diversity). 3. Fletcher's View. a. "All" just means that Congress has the power if it wishes to make those three heads of jdx exclusive in the federal courts. 4. Meltzer's View a. Case/Controversy Distinction. Federal judiciary power extends to all cases, but not all controversies. (Fletcher disputes this -- believes that cases include criminal matters and controversies do not). 5. Currently Accepted View a. Congress may give federal courts the full extent of jurisdiction under Article III, but it may not and has not.

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(1) Federal Question jurisdiction is limited; under 1331, the federal question must appear in the complaint, not in the answer (well-pleaded complaint rule) (2) Diversity jurisdiction is limited; Congress has always required an amount-in-controversy requirement, and 1332 requires complete diversity. b. Reasons for Current Rule. (1) Madisonian Compromise. Issue in Constitutional Convention about whether to create lower federal courts. (a) Jeffersonians were suspicious of federal courts; viewed them as an instrument of federal power. (b) Federalists wanted a strong federal government (c) The Compromise: PUNT. Allow Congress to decide later. c. Judiciary Act of 1789. This was the original grant from Congress that established a federal court system: (1) Supreme Court: (a) Creates positions for Supreme Court justices and authorized Supreme Court to exercise original jdx described in Art III (b) Conferred appellate jdx on Supreme Court over decisions of inferior federal courts and over certain decisions of the state supreme courts. I. 25: Only conferred Supreme Court jdx over state court decisions when the state court nds adversely to the federal right asserted (2) Inferior Federal Courts: (a) Created two levels of inferior federal courts (district and circuit) (b) Conferred diversity and admiralty jdx (c) Did NOT confer general federal question hdx (3) Signicance of the Act: (a) Congress created a federal court system at the earliest possible opportunity (b) Congress was not content to have merely a federal Supreme Court overseeing state courts (c) Does not suggest Story's later reading of Article III; failed to confer the full extent of the jurisdiction authorized by Art III. II. Congressional Power to Control Federal Court Power A. Congressional Power to Regulate Supreme Court Appellate Jurisdiction 1. Jurisdiction Stripping. Art III 2 gives Supreme Court appellate jdx subject to "such exceptions, and under such regulations as the Congress shall make." Does this mean Congress may strip appellate jurisdiction from the Supreme Court? a. Proponents of Jurisdiction Stripping: (1) Framers intended congressional control as a check on the judiciary's power. (2) First Congress did not vest Supreme Court with appellate jdx over all heads of jdx enumerated in Art III; Judiciary Act of 1789 gave Supreme Court appellate jdx over state's highest court ONLY when it ruled against federal constitutional claim. b. Critics of Jurisdiction Stripping: (1) Framers were only concerned with overturning of fact nding by lower courts and juries. (a) This argument relies on a creative textual reading of Art III; "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." Requires a comma after "law" to be clear. (2) Congress cannot exercise its power to limit jurisdiction, any more than it can exercise any authority, in a manner that violates the Constitution. c. The Modern RULE. Congress can limit the appellate jurisdiction of the Supreme Court to achieve a political result in a particular case (Ex Parte McCardle), but might not be allowed to (1) destroy the Supreme Court's essential role, (2) limit review in a manner that violates specic constitutional rights, (3) violate separation of powers. 25

The Modern RULE. Congress can limit the appellate jurisdiction of the Supreme Court to achieve a political result in a particular case (Ex Parte McCardle), but might not be allowed to (1) destroy the Supreme Court's essential role, (2) limit review in a manner that violates specic constitutional rights, (3) violate separation of powers. (1) Ex Parte McCardle (1869). P is a publisher in Mississippi during Reconstruction arrested for writing articles critical of Restoration. Filed a petition for habeas relief pursuant to statute from 1867. Congress passes law repealing 1867 law, so court drops case for lack of jdx, and purposely waits to issue the opinion until after Congress passes law. Notes about McCardle: (a) central issue in appeal was the constitutionality of the Reconstruction Acts; allowed USSC to dodge constitutionality issue (b) Majority of the USSC was hostile to Reconstruction, to Congress repealed the new statute to prevent the court from invalidating the Reconstruction Acts (c) Express purpose was to remove McCardle from the court's docket (d) Court nds an express grant to Congress of power to make exceptions to appellate jdx in the Constitution (Art III 2). (e) Even after the repeal, the USSC still had the authority to hear McCardle's claims on writ of habeas corpus (didn't stop every route to the court, just one route). Might only stand for the ground that if there are more than one routes to the USSC, Congress can close one of them. (f) Fletcher on McCardle: I. When you have an angry Congress, the USSC understands politics and will roll over. II. Congress has a great deal of control over the judiciary. (2) Limits: (a) Congress may not destroy the Supreme Court's essential role. (Professor Hart). This limit has not been directly tested. Examples: I. ensuring the supremacy of federal law (if Congress restricted USSC review, states would have the nal word and could ignore precedents with impunity. II. checking the legislature (Congress could enact unconstitutional statutes and insulate them from judicial review, overturning Marbury). (b) External Constitutional Rights. Congress may not limit Supreme Court review in a manner that violates specic constitutional rights. I. US v. Klein (1872). Congress attempts to proscribe specic outcome in a Reconstruction case by ordering dismissal of all cases involving presidential pardons, essentially exercising judicial power by specifying rules of decision. A. When an impermissible substantive end is sought to be achieved by prescribing a particular evidentiary or substantive rule under the guise of jurisdictional regulation, the attempt to withdraw jdx may be disregarded as merely a "means to an end." II. Boumediene v. Bush (2008). The court held in Rasul v. Bush that Gitmo prisoners still get habeas review, and in response, Congress passes statute limiting access to federal courts. Court invalidates the statute, holding that it impermissibly interferes with the obligation to have habeas unless formal suspension of habeas under Art I 9. (c) Separation of Powers? I. Plaut v. Spendthrift Farm (1991). Congress overrules new statute as unconstitutional as violating separation of powers (interfered with the nality of judicial determinations). Not a holding on Klein grounds, but can be analogized to Klein -- both cases involve statutes commanding a result in federal court. (3) Arguments for/Against jurisdiction stripping:

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(a) For: I. Congressional power is an essential democratic check on the power of an unelected judiciary II. In a democracy, all value choices should be subject to control by electorally accountable ofcials (b) Against: I. Argument is based on a misdenition of democracy, premised on the idea that democracy equals majority rule II. Correct denition of American democracy must include substantive values such as those contained in the Constitution III. Jurisdiction restrictions may not really achieve the desired effect of a majoritarian check on the federal judiciary (would not overturn precedents, just freeze existing law) (c) The Hart & Weschler Approach: Perhaps it is good that the line here is not clear; it allows Congress to keep the courts in line by threatening jdx stripping, and the courts always have the option of throwing out the statute as unconstitutional. A game of chicken that promotes respect between both branches. B. Congressional Power to Restrict the Jurisdiction of Lower Federal Courts. 1. Congress has discretion as to whether to create inferior courts, and we know from modern interpretations of the Judiciary Act that need not give the full scope of judicial power to the federal courts. The boundary between the legitimate power to restrict jurisdiction and a questionable power to accomplish other aims under the guise of jurisdictional restrictions is not clearly delineated. a. When does Congress clearly have the power to restrict jurisdiction? (1) When Congress is merely regulating the ow of business in the court system, and not abridging any substantive right. (a) EXAMPLE. Diversity jurisdiction has always had an amount in controversy requirement. (b) Sheldon v. Sill (1850). Judiciary Act restricts diversity jdx by requiring court to look not to current owner of note or mortgage, but to assignor. Otherwise, Ps could do end-run around diversity requirement by assigning to someone out-of-state. I. Fletcher: there is a ow-of-business element to Sheldon -- don't want federal courts overrun with debt claims -- but there is also a legal effect here -- Sheldon kept debts within the state decided by statue courts, who would probably be more sympathetic to the debtor. (2) When Congress wants to accomplish a substantive purpose of protecting litigants by means of jurisdiction. It is clear from the debate that diversity jdx arose out of fears of fairness to litigants, so, Congress can set up federal courts to hear diversity cases where Congress thinks the unfairness is sufciently important to address. Article III allows Congress to make this judgment. (3) When there is no external constraint on Congress's action. This is broad, but historically the Court will go out of its way to read statutes so that they do not foreclose all judicial review. C. Congressional Power to Restrict Jurisdiction in all Courts (State and Federal). What are the limits of Congress's power to restrict jdx of both state AND federal courts? 1. The answer to this question is unclear. If Congress were able to restrict all courts from hearing certain claims, it would raise serious separation of powers issues. The court generally avoids this issue through the canon of constitutional avoidance by interpreting the statute to provide some remedy. However, scholars have considered what the hypothetical limits of Congressional action might be. 2. Battaglia v. Gen Motors (2d. Cir. 1948). Court in earlier decisions nds the FLSA to require employers to pay for donning and dofng. This leads to 2000 lawsuits and a potential $5 billion in retrospective relief against employers. Congress passes Portal to Portal Act, which (1) overrules court's earlier interpretation of FLSA and (2) bars all courts, state and federal, from having jurisdiction over actions to enforce liability for failure to pay wages under FLSA. Court upholds the constitutionality of the P2P Act, but only because it affected a statutory right and not a constitutional right. Congress cannot remove jdx to hear cases involving constitutional rights, but there is no constitutional right to back pay, so no problem. 27

donning and dofng. This leads to 2000 lawsuits and a potential $5 billion in retrospective relief against employers. Congress passes Portal to Portal Act, which (1) overrules court's earlier interpretation of FLSA and (2) bars all courts, state and federal, from having jurisdiction over actions to enforce liability for failure to pay wages under FLSA. Court upholds the constitutionality of the P2P Act, but only because it affected a statutory right and not a constitutional right. Congress cannot remove jdx to hear cases involving constitutional rights, but there is no constitutional right to back pay, so no problem. a. Fletcher: key to this case was the fact that the Court got to the merits; Congress eliminated a substantive right, the fact that they call it a limitation on jdx doesn't insulate it from judicial review. 3. Constitutional Avoidance Cases: a. Webster v. Doe (1988). Court interprets statutory provision precluding judicial review of CIA-related action barred non-constitutional challenges but not constitutional challenges; demanded "heightened showing" of intent to deny review of constitutional challenges. b. Bowen v. Michigan Academy of Family Physicians (1986). Court nds statutory bar to judicial review of Medicare awards to not encompass constitutional challenges). c. Johnson v. Robison (1974). Statute which made benets decisions of Veterans Administration "nal" and nonreviewable did not preclude constitutional challenges, since preclusion would "raise serious questions concerning the constitutionality of the provision." 4. The Hart Dialogues. Hart suggests that while Congress might not have the power to deny ALL remedies, it certainly has the power to provide (and exclude) specic judicial remedies. a. POST-DIALOGUES: specic rights provided: (1) First English Evangelical Lutheran Church of Glendale v. LA (1987). "In the event of a taking, the compensation remedy is required by the Constitution." D. Congressional Power to Choose Art I Courts over Art III Courts 1. While the Constitution could be read to hold that if a federal court is established, it should be an Art III court subject to the requirements of Art III (life tenure, salary protection, etc.), this is not the current interpretation. Modern reading of the Constitution provides for the following non-Art III courts: a. Courts Martial. Mentioned in Art I, not Art III. Courts martial have great power, and can order executions for active duty military personel. (1) Core court martial powers: (a) to try those in American uniform (b) to try matters on the battleground. (c) to try American nationals captured on the batteground (Hamdi) (d) to try American citizens acting as foreign combatants (Ex Parte Kieren) b. Territorial Courts. Marshall upholds non-Art III territory courts early on; don't know whether territories will become states, what their judicial needs will be, so it's not practical to create lifetime Art III judgeships. Not as clear from text of Constitution, but territorial courts can be justied by the Congress's plenary power over territories in Art IV. c. Public Rights. Claims for money by individuals against the federal government. Because these claims would be barred by sovereign immunity absent a Congressional abrogation, it makes sense for Congress to have the power to have these rights vindicated in non Art III courts (no enroachment power; Congress is not taking anything away from the federal courts). 2. The Court has approved use of legislative courts for private law matters if: a. tribunal is adjunct of an Art III court b. matter involves private litigation closely related to a public regulatory scheme c. benets of using a legislative court exceed the disadvantages d. CASES (1) Crowell v. Benson (1932). Longshoremen Act sets up employment compensation commission to determine amount to be paid out to injured longshoremen. Suits are between two private parties (worker and employer), so not a public rights dispute. Court nds scheme permissible because commission was subject to substantial oversight by an Art III court; (a) agency's ndings of fact would be reviewed by 28 substantial evidence standard, and (b) questions of jurisdiction would be reviewed de novo. In dissent, Brandeis argued that legislative courts deserved broad discretion, because Congress has broad discretion to control the jurisdiction of federal courts and could have left this power to the state courts

Crowell v. Benson (1932). Longshoremen Act sets up employment compensation commission to determine amount to be paid out to injured longshoremen. Suits are between two private parties (worker and employer), so not a public rights dispute. Court nds scheme permissible because commission was subject to substantial oversight by an Art III court; (a) agency's ndings of fact would be reviewed by substantial evidence standard, and (b) questions of jurisdiction would be reviewed de novo. In dissent, Brandeis argued that legislative courts deserved broad discretion, because Congress has broad discretion to control the jurisdiction of federal courts and could have left this power to the state courts (a) NOTE: de novo review of jdx is no longer good law (Chevron). (2) Northern Pipeline v. Marathon Pipeline (1982). Bankruptcy Act of 1978 gave increased jdx over bankruptcy matters to Art I bankruptcy courts; ability to stay all pending litigation; ability to determine Qs of state law (interpret contracts and nancial interests and prioritize those interests). (a) Brennan Plurality holds that because case is not court martial, territorial, or public rights case, an Art III court is required; bankruptcy judge may serve as an "adjunct" to an Art III judge; as long as Art III judge has substantial power of review, no problem. (b) White + 2 hold that Art I bankruptcy courts are ne as conceived; advocated exible approach; judicial power should be balanced against "competing constitutional values and legislative responsibilities" to see if Art I jdx is permissible. (c) Fletcher's Critique of Northern Pipeline. This is the worst place to draw the line. There is no political pressure the Art III court can protect from, no claim of expertise, etc. (3) Since Northern Pipeline, the Court has upheld the constitutionality of tribunals for matters once labeled "inherently judicial." Courts seem to have adopted White's balancing approach in Northern Pipeline, but it's unclear how the balancing will be done. (a) Thomas v. Union Carbide (1985). FIFRA allows second company seeking licensing to do follow-on registration, provides for binding arbitration for rst and second company to adequately share costs. Court allows this because (1) closely related to government regulatory activities and (2) subject to ordinary appellate review. (b) CFTC v. Schor (1985). S brings action in administrative tribunal, and C brings state counterclaim. Court holds that tribunal can hear matters like this one, subject to following factors: I. whether "essential attributes of judicial power" remain reserved for Art III judges II. whether admin court exercises a range of functions normally given to Art III courts III. origins and importance of the right IV. policy concerns that led Congress to relocate the forum V. Brennan dissents, arguing this is inconsistent with Northern Pipeline; argues that a formal line like the one drawn in Chada and Bowsher v. Synar should be drawn here. (4) Note on Magistrates (a) Adjuncts of Art III judges, appointed for 7-year terms by the judiciary with limited powers: I. CRIMINAL. even w/ consent of parties, they cannot preside over criminal cases. Can do voir dire, and can conduct discovery, issue warrants, set pleas, etc. A. US v. Raddatz (1980). Magistrate can hear motions to supress, propose ndings of fact, make recommendations. B. Peretz v. US (1991). Magistrate may not preside over jury selection without D's consent. II. CIVIL. If parties consent, magistrates can run an entire trial III. HABEAS. some power. IV. POLICY ISSUES on Magistrate Judges and Other Art III adjuncts: A. CONS. 1. not justied by expertise/specialty grounds 2. not justied by combination of adjudicatory/rulemaking functions

29

3. not justied by different procedures (like arbitration) 4. Generally, NO Schor factor justications. Only justication is desire not to create more Art III judgeships. B. PROS. 1. threat to independence is relatively minor: a. selected by Art III jduges b. operate within the Art III structure c. Art III judges review decisions, broad array of levers for supervising them. (b) Review/Oversight by Fed Court Judges. I. Very little review in practice; district court judge writes "I have reviewed the entire record de novo and approve," but as a practical matter, mostly just recitation. But still: A. 1) appointed by Art III judges B. 2) occupy the same building as Art III judges (5) Note on International Tribunals. Can Congress give judicial power to an international tribunal? (a) Fletcher: nothing in Art III prevents Congress from giving power to an international tribunal E. Congressional Power to Enlarge the Power of the Federal Courts. Congress cannot add to the constitutionally authorized jurisdiction of Article III. 1. National Mutual Insurance v. Tidewater (1949). Article III confers diversity jdx over controversies "between citizens of different states;" Congress passed a statute providing citizens of DC would be equivalent of state citizens for purpose of diversity jdx. Court upheld diversity jdx, but no rationale for the decision: a. Jackson: Congress had the power under Art I to confer jdx on Art III courts even if no jdx head of Art III was available. (1) 6 other justices: reject this position. III. Congressional Power to Have State Courts Decide Federal Law Matters A. The RULE: The presumption is for concurrent jurisdiction. The default is that a federal law can create a civil claim in both state and federal courts (Madisonian Compromise). B. When is there exclusive federal court jurisdiction? 1. Tafin v. Levitt (1990). Q is whether civil RICO cases can be brought in state court. Court holds they can, under Clear Statement Rule: a. Explicit Statutory Directive b. Unmistakeable implication from legislative history c. Clear incompatibility between state court jdx and federal interests (1) NOTE: Federal Antitrust claims is the only case where the court has implied exclusive jurisdiction. C. Policy Reasons for concurrent jdx: 1. Advantage Ps by giving more choices of forum 2. No expertise/incompetance issue in state court 3. Volume; lots more state judges than federal judges; don't want to create a run at the courthouse doors. D. When is there an exception to concurrent jurisdiction? 1. Removal From State and Federal Courts for Federal Ofcers a. Tennessee v. Davis (1880). Federal IRS ofcer gets into gunght with moonshiners, kills one. Federal law at the time provided removal when federal ofcial is charged with a crime under state law and federal ofcer is (1) appointed under or (2) acting under federal authority. Q is whether removal is constitutional; there is no FQ in crime, but there is a FQ in defense, and you have ofcer acting under state law. Court nds statute constitutional -- case arises out of federal law because there is a federal defense (D was acting under color of state law at the time). Read narrowly in Mesa.

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b. Mesa v. California (1989). Two US postal service employees are facing state prosecution for bad driving; attempt to remove to federal court. Court construes the removal statute narrowly to require a federal defense (leaves as open question what a "federal defense" is, but merely driving on the job is not one here). (1) POLICY and Davis and Mesa. WF: Practical considerations are what differentiate Davis from Mesa; (1) don't want a whole range of criminal removals when there is no federal question; (2) not the same issues of potential injustice that were present in Davis (fear of an unfair state trial). 2. State Court Proceedings Against Federal Ofcials. Even though state courts are obliged to follow federal law, they have limited power to enter orders directly against federal ofcers. a. Tarble's Case (1872). In aftermath of civil war, T's father seeks habeas relief in state court to get son out of federal military service arguing son was 18 at time of enlistment. Names as D military ofcer holding him. Court holds that a state may never hear a habeas cases directed toward a federal branch. RULE: state courts do not have power to grant writs of habeas corpus against federal ofcers alleged to be holding prisoners in violation of federal law. (1) unclear if the holding is statutory or constitutional; no federal statute at the time authorized state courts to grant habeas. Fletcher thinks this is probably a statutory holding. (2) Tarble is judge-made exception to usual presumption of concurrent jdx. E. Obligation of State Courts to Enforce Federal Law 1. THE RULE: state courts must faithfully follow and apply federal law a. State courts must hear federal law cases when Congress so requires b. When a state court does not have subject matter jdx over, or would dismiss, a certain kind of case, the state court may refuse to hear federal cases of that kind BUT a refusal to hear a federal case may not be based on hostility to federal law. 2. Non-Discrimination. a. A state may not discriminate against rights arising under federal laws. b. Testa v. Katt (1947). During WWII, Congress passed price control statute; overchargers could be sued for treble damages and fees. Statute provided that "any court of competent jdx can hear these cases," but RI refused to hear them, arguing that the law was a "foreign" penal law. Court holds that state courts have a constitutional obligation to hear even penal damage suits based on federal law. c. Felder v. Casey (1988). P brings 1983 suit against the city and police commission. Under state law, a jdx prerequisite is 120-notice to Ds before suit. Even though court treated federal and state courts identically, USSC through out 120-day notice; it discriminated because it would burden civil rights P by serving a purpose -minimizing governmental liability -- that was impermissible under state law. Violated Patsy v. Board of Regents (1982) (exhaustion of administrative remedies is not required in 1983 actions). 3. Valid Excuses. In a few instances, state courts have successfully refused to hear cases a. Not "adequate and appropriate jdx." (1) Herb v. Pitcairn (1945). Illinois Municipal Court was court of limited jdx, limited to jdx of city. Muni court held that it could not hear cases involving act outside city's jdx; USSC allows this as valid excuse of "not adequate or appropriate jdx," notes that there was no discrimination between state and federal actions (would have had to dismiss state court claim as well). 4. Commandeering Cases. Two recent cases have limited the federal government's power to "commandeer" state governments (in New York, state legislatures, and in Printz, state executives). It is an open question as to whether requiring states to hear federal causes of actions is an impermissible "commandeering" of state courts. a. FERC v. Mississippi (1982). Directed state utility regulating commissions to implement executive rules. Are state regulators more like judicial entities or legislative/executive entities? Court holds that Testa controls, and state commissions must implement rules.

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b. New York v. US (1992). Court declared federal statute that commanded states to regulate nuclear waste unconstitutional; impermissible "commandeering" of state legislatures under the 10th Amendment. c. Printz v. US (1997). Court declared law that required state and local law enforcement personnel to perform background checks on handgun applicants unconstitutional; impermissible "commandeering" of state executive under 10thA. d. Why Printz might not apply: The Madisonian Compromise. Because the creation of federal courts is left to Congress, there could be no federal courts; and in that case, if state courts could not hear federal causes of action there would be no courts to bring federal claims. (1) Counterargument: But this argument only works if Congress decides to not create federal courts. These claims are all available in federal court; so no reason to require states to do double duty. F. Substance and Procedure in Enforcement of Federal Rights of Action in State Courts 1. General Rule: states must follow federal law, but may follow their own procedural rules in enforcing substantive federal law just as federal courts may follow their own procedural rules in enforcing substantive law. Exceptions: a. Congress species the procedure for a particular matter b. If the federal procedures are "part and parcel" of the federal remedy (Dice) c. If the application of state procedures would be "outcome determinative" or "signicantly burden the exercise of federal rights (Felder) 2. Part & Parcel Exception. If federal procedures are "part and parcel" of the federal remedy. a. FELA cases. FELA protects and compensates railroad workers injured on the job. Designed to be P-friendly and rural-friendly -- no removal provision in FELA cases (can't force all litigation to Cheyenne). Much overlap with state tort law and labor law; designed to respond to a situation where the state courts were failing to provide adequate relief? (1) Dice v. Akron, Canton & Youngstown RR (1952). P works for railroad, is injured on the job, RR gets him to sign release while in hospital. Brings suit in Ohio court, arguing release was fraudulently induced. In Ohio, fraud is Q for the judge, but under federal law, a Q for jury. USSC holds that state courts trying FELA cases must divide decisionmaking authority between judge and jury in the same manner as fed courts do, even if uniform state practice is otherwise; federal procedures are part and parcel of federal remedy. (2) Brown v. Western Railway (1949). USSC requires states to use notice pleading, not code pleading, when hearing FELA actions. Federal rights cannot be defeated by the forms of local practice. b. In Section 1983. (1) Felder v. Casey (1988). P brings 1983 suit against the city and police commission. Under state law, a jdx prerequisite is 120-notice to Ds before suit. USSC holds rule cannot be applied because it is "part and parcel" of the 1983 remedy that it not be limited by a 120-day notice rule (2) Johnson v. Frankel (1997). P brings 1983 claim against state ofcial in state court. D brings defense of qualied immunity, which court denies. State law does not provide for interlocutory appeal. USSC upholds; interlocutory appeal is to protect state from overzealous applications of federal statute. If state wants to case off this, shat would be state's prerogative. Also found that the issue was not "outcomedeterminative," state method took longer time but would ultimately apply the same legal standard. 3. Outcome Determinative Exception a. Jinks v. Richland County (2003). P brings federal law and 1367 supplemental claims in federal court; federal judge dismisses federal causes of action on SMJ, is left with state law claims. If he dismisses them, they'd be outside state statute of limitations. Court holds that there is tolling for these state law claims.

Review of State Court Decisions by the Supreme Court

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I. History and Background A. Judiciary Act of 1789 25 gave USSC mandatory jdx to review specied state court judgments via writ of error (limited to matters in the record and permitted review only of legal issues). B. Judiciary Act of 1914: 1. authorized review of state court decisions upholding a claim of federal right (previously, review was limited to judgments denying federal rights) 2. introduced discretionary writ of certiorari C. JA 1916: 1. Preserved mandatory review only for state judgments invalidating a treaty or ct of congress or upholding a state statute attacked on federal grounds D. 1988 amendment to 1257: 1. eliminated all appeals as of right, made all state court judgments reviewable only by writ of certiorari. E. Today. 1. In 2007, only 12 full opinions on cases from state courts. 2. Supreme Court rules set out procedure for cert petitions. Court should consider: a. whether state court of last resort has decided an important federal question in way that conicts with the decision of another state court of last resort or a US court of appeals b. whether a state court has decided an important Q of federal law that has not been, but should be, settled by this court c. whether state court decision conicts with relevant decisions of the USSC II. Twin Pillars of Supreme Court Review of State Court Judgments A. No explicit provision in Art III providing for USSC review of state court judgments. Two cases -- Martin v. Hunter's Lessee and Murdock v. City of Memphis -- are the pillars on which USSC review of state court judgment rests. B. Martin v. Hunter's Lessee (1816). VA Supreme Court doesn't want to listen to USSC -- says it does not have appellate jdx. USSC holds that Congress has the power to authorize USSC to exercise jdx over questions of federal law decided by state courts; cites policy of uniformity of federal law 1. Gives Congress discretion over lower federal courts; if Congress chose not to establish them, then USSC would be powerless to hear any cases unless it could review state court rulings. 2. Also based on the recognition that state attachments/prejudicies might sometimes obstruct or control the regular administration of justice. C. Murdock v. City of Memphis (1875). Land was conveyed for establishment of naval depot in Memphis with reversion clause stating that if land was not used as naval depot, it would go to heirs. M is an heir. US makes improvements to land, but does not build naval depot, then gives to city of Memphis. M brings suit under original grant, which requires two interpretations: (1) interpretation of original grant, (2) interpreting deed from US to city of Memphis. Loses in state court; appeals on mandatory writ of error to USSC (the federal question is the interpretation of the federal deed; the other question is a state law estates in land question). Right before case, last sentence of 25 was removed ("if writ of error based on FQ, USSC can decide only that federal question, any other suit is out of bounds.") Issue was whether this removal of the sentence allows USSC to decide estates in land question. Court holds that despite the new 25, the USSC cannot decide questions of state law in cases coming up on appeal from the state courts (state courts are authoritative expositors of their own law). 1. EXCEPTION: court may decide questions of state law when state court has manipulated state law to avoid the command of federal law. 2. NOTE: Murdock does NOT prevent the USSC from deciding Qs of state law in cases coming up from the lower federal courts (diversity cases, supplemental jdx cases, FQ in which issues of state law are involved. 3. OUTGROWTH OF MURDOCK: Independent & Adequate State Ground Principle (see Fox Film, Michigan v. Long) 33

OUTGROWTH OF MURDOCK: Independent & Adequate State Ground Principle (see Fox Film, Michigan v. Long) 4. ASIDE ON ERIE a. Today, we think of law as broken into state law and federal law. But in the 1800s, three bodies of law: (1) Federal Law. Federal law comes from the Constitution, statutes, and treaties. No substantive federal common law at this time (Wheaton v. Peters (1832)). (2) State Law. Law arising from police power of the state; marriage law, divorce law, etc. (3) General Law. Or (common law). General law was a concept of widely held law that did not change by jurisdiction; commercial contract etc. Found in Blackstone, other treatises of the time, a "transcendental body of law." (4) Fletcher's View: in part due to the increase in interstate travel and commerce and the rise of the railroads, general law expanded. Federal courts began to interpret tort law to be considered general law. By the end of the 20th century, there was a disparity between state and federal court; a pervasive and systematic businessfriendly bias. This nally came to a head in Erie v. Tompkins (1938). 5. NOTE: Fletcher thinks that the rules governing the USSC review of state court decisions on appeal should not necessarily be the same as the rules governing where the case should originally be led because at that point you know what the important issues are for the appellate courts. III. Supreme Court's Refusal to Review Highest State Court Decisions if there are Independent and

Adequate State Grounds Supporting the Result

A. The RULE: The USCC will not decide a case coming up from a state court if there is an adequate and independent state ground to support the decision. If the reversal of the state court's federal law ruling will not change the outcome of the case, the court must decline to hear the case. 1. Independent Grounds. An independent state ground exists when a decision is based on state law that is independent of whatever federal law might require. a. In order to constitute an independent state ground, the state's court must have explicitly relied on it as a basis for its ruling. b. Not independent if it incorporates federal law; if state law has adopted a federal standard, then there still is a question of federal law to be decided. (1) If state law is interpreted to make it consistent with supposed command of federal law, or if state law incorporateds federal law, the state law is not independent. (2) Fletcher: this may not be right. The law is still state law, and they may have just voluntarily adopted the federal standard. But this is the way the Supreme Court has viewed it. (3) State Tax Commission v. Van Cott (1939). Utah Supreme Court sustained an exception from state income tax for a federal employee, and appeared to have done so with the understanding that the federal law required the exception. Even though liability for state taxes was at issue, the issue depended on an interpretation of federal law, and thus was not independent. (4) Standard Oil v. Johnson (1942). California statute exempted from state motor tax any fuel sold for ofcial use to a department of the US; state statute incorporated federal law for its denition of a US department and what constituted "ofcial use." Therefore, not independent . 2. Adequate. A decision is adequate if the Supreme Court's reversal of the state court's federal law ruling will not alter the outcome of the case. The decision of the state question must be fully dispositive, so that the decision of the federal question makes no difference. a. GENERALLY, decisions on state procedural grounds are adequate, but the USSC will not allow states to manufacture procedural grounds in order to preclude USSC review. (1) USSC will not allow trivial state rules (where only a minimal state interest) to prevent the vindication of important constitutional rights

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B.

C.

D.

E.

F.

(2) State procedural rule cannot constitute adequate ground for its decision if the rule is discretionary rather than mandatory. Fox Film Corp v. Muller (1935). Suit was brought in pre-Erie general law era. Contract dispute; Minn Supreme Court holds that (1) arbitration clause is invalid and inseparable from contract, thereby invalidating entire contract (state grounds) and (2) the K is illegal under the Sherman Act (federal grounds). Goes to USSC, who hold they have no jdx to hear the case: state court ground of non-severability is adequate and independent; USSC cannot rule on the federal question because any ruling it entered would be moot. State Procedural Rules. 1. The RULE: If a constitutionally permissible state procedural rule is applied in a constitutionally valid way, and if you fail to comply with it, that is an independent and adequate state ground and the USSC does not have jdx. a. Federal Habeas Cases. Because of this rule, it is very difcult for federal courts to provide meaningful habeas actions for state prisoners. Prisoners must exhaust options in state court. (1) OLD RULE. Fay v. Noia (1963). USSC said state procedural bar did not prevent a prisoner from raising a fed Q on habeas unless the state court defendant had deliberately bypassed state procedure. Merely missing a deadline or failing to object is not a bar. (2) NEW RULE. To get around a procedural default in state court, you must show (1) cause for your failure and (2) undue prejudice. Rationale for the Doctrine: 1. No advisory opinions. USSC decision on a federal Q will have no effect on the outcome of a case if state law ground is independent and fully dispositive 2. Avoidance of Unnecessary Adjudication. When a federal constitutional question is posed, the independent and adequate state ground doctrine will help the Court avoid making an unnecessary constitutional decision. 3. Docket Control: the doctrine arose when the court's appellate jdx over state cases was mandatory. 4. Promotes harmony between federal and state systems. Criticism of the Doctrine: 1. Permits inconsistent and incorrect interpretations of federal law to remain unreviewed. 2. Invites courts to try to immunize their decisions from Supreme Court review by manufacturing a state basis for the decision Ambiguities. Should the USSC decide federal question if it is unclear if there is an independent and adequate state ground? 1. Prior to 1983, court remanded to state court, only after state court made clear that no independent/adequate state ground existed would the Court take the case. 2. Present Practice, assume there is no independent and adequate state ground unless the court has clearly indicated it is relying on such a ground. Long. a. Michigan v. Long (1983). Garden variety trafc stop in which L is stopped by police and his car is searched; police nd marijuana. Michigan constitution and US constitution both have identical Fourth Amendment language. Michigan Supreme Court strikes down search, saying it is unconstitutional. But unclear if they meant unconstitutional under state constitution or federal constitution; decision only cited federal cases. USSC holds that to prevent USSC review, state court has to make a plain statement that says it is relying on state grounds; if no clear statement, court can review and answer federal question and remand for the state court to decide the state law question. In dissent, Stevens argues the USSC should not review cases where there is no allegation that the state court prevented the vindication of federal rights. (1) Justications for the Plain Statement Rule: (a) Gives Supreme Court more cases to pick from in shaping policy. With discretionary review under writ of certiorari, the USSC now has more cases to pull from when seeking to clarify a law.

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(b) Easy for State Supreme Courts to follow. If state supremes want to take a stand, they can clearly state that there is an adequate and independent state ground. (2) Criticisms: (a) Risk of advisory opinions. Court can decide federal questions, and have these determinations mooted by later state court action. (b) More political exposure for state courts. To achieve a particular result and protect it from Supreme Court reversal, state courts are obliged to make it clear the state law basis for the decision

Federal Question Jurisdiction of the District Courts

I. History & Background A. Constitutional Source. First head of jdx in Art III 2; "in cases arising under . . . " B. Statutory Source. 1. No General FQ Provision in Judiciary Act of 1789; small grants of jdx so courts could enforce customs rules, federal criminal cases, etc. 2. The Adams administration passed a general FQ statute, but Jefferson appeals it almost immediately. 3. No general FQ statute until 1875; words parallel Art III and intent seems to be to go to limits of Constitution (but this has never been the accepted interpretation). II. The Breadth of the Constitutional Grant of Federal Question Jdx A. Osborn v. Bank of US (1824). Bank of US is unpopular; because of hostility toward the bank, the federal statute creating the bank authorizes bank to sue and be sued without regard to a particular cause of action in federal court. Ohio levies tax on the bank, which clearly raises a federal question (can a state tax a federal instrumentality)? But in a companion case (Planter's Bank), the issue was whether the bank could bring a suit in federal court for enforcement of a contract (a state law or general law claim). Court said they could. 1. Marshall does not say "bank is a federal instrumentality, and so Congress can provide for protection of federal instrumentality." a. Marshall writes that because bank is created by federal law, any suit brought by the bank is somehow dependent on federal law and arising under federal law. Question of the bank's capacity to act "forms an original federal ingredient in every cause." b. The mere possibility of a federal question arising was sufcient to satisfy "arising under" jurisdiction. 2. Marshall's justications for Osborn: a. To allow and facilitate the exercise of power within the federal government 3. Supreme Court has routinely afrmed Osborn: a. American National Red Cross v. SG and AE (1992). Red Cross is created by a federal statute, which authorizes it to sue and be sued in federal courts. When Ps try to sue in federal court for state law claims, USSC holds that fact that Red Cross was federally incorporated was sufcient basis for federal question jdx. b. Narrowed in Mesa. No FQ to hear every case against US postal workers; only applies to: (1) federal instrumentalities (2) that are likely to face local hostility B. Textile Workers Union v. Lincoln Mills (1957). Taft Hartley Act provides that federal courts have jurisdiction over suits to enforce collective bargaining agreements. Issue is whether this is just a jurisdictional grant (court can hear these types of cases) or if Congress intended courts to create federal common law of collective bargaining agreements). Court holds that Congress intended to create a substantive change in the law by giving courts power to create federal common law on the issue. This avoids the jurisdictional question (there is arguably no FQ if federal courts are merely adjudicating labor contracts under state law) by creating a federal question. 1. Frankfurter's Dissent. Argues that this is a bare jdx grant, no federal question, disagrees with the concept of protective jurisdiction. 36

Frankfurter's Dissent. Argues that this is a bare jdx grant, no federal question, disagrees with the concept of protective jurisdiction. C. Protective Jurisdiction. 1. Academic Theory Traced back to Prof. Weschler. a. Weschler's Theory. (Broad Theory). Whenever Congress has the power to legislate in a eld, but has decided not to, if it is not happy with the way the states will enforce the laws in their courts, Congress can give the federal courts jurisdiction. b. Mishkin's Theory. (Narrower Theory). Protective jdx should be available to allow federal courts to decide cases based on state law only when (1) Congress has power to legislate in the eld and (2) there is an articulated and active federal policy regulating a eld. c. The court has refused to embrace protective jurisdiction argument. (1) Mesa v. California (1989). Federal postal workers removed state criminal proceeding without raising federal defense. Court holds that jdx is unavailable unless ofcers raised a substantial federal claim or defense. (2) Verlinden v. Central Bank of Nigeria (1983). Involves Foreign Sovereign Immunities Act. d. Jurisdiction in Bankruptcy Cases. (1) Federal district courts for many years have had power to decide bankruptcy cases in which no question of federal law is at issue. (a) Northern Pipeline. Constitutionality of exercise of jurisdiction over state claims was assumed without discussion. (b) Rationale for bankruptcy jdx: I. Frankfurter in Lincoln Mills Dissent: A. jdx over state claims could be seen as a version of ancillary or pendent jdx (sufciently related to be a single case or controversy) 1. BUT this requires a broad reading of the "case or controversy requirement." Claims of creditors often have no factual connections to other claims; they arise out of different contractual agreements at different times. II. Jackson in Tidewater Plurality: A. Jurisdiction over bankruptcy is not authorized by Art III, but Congress, in exercise of Art I powers, can confer additional jdx over an Art III court B. NOTE: majority disagreed with Jackson and this theory has never been adopted or seriously considered. III. The Breadth of the Statutory Grant of Federal Question Jdx A. Arising Under Jdx Under the Federal Question Statute 1. 28 USC 1331: "the district courts shall have original jdx of all civil actions arising under the constitution, laws, or treaties of the United States." This language appears to mirror Art III language, but has been interpreted to grant less than the full potential grant. 2. Requirements a. STEP ONE. Well-Pleaded Complaint Rule. It must be clear from the face of the plaintiff's complaint that there is a federal question. There can be no federal question jdx in the district court unless that question of federal law appears in a properly pleaded complaint. (1) Louisville RR v. Mottley (1908). Ms are getting free railroad rides for life as part of a settlement. Government passes law that says nobody rides for free. Ms sue railroad in federal court, arguing that the law has caused the railroad to breach the agreement. Court holds that there is no federal ingredient in the complaint -- the federal law issue is the RR's anticipated defense, not part of the claim against them. (2) Applies to Declaratory Judgments.

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(a) The RULE: In declaratory judgment case where P seeks to bring declaratory judgment in complaint and has pled a federal issue that would be a defense, the court looks not to the complaint but to the hypothetical complaint that would have been led by the D if the suit had been brought as a coercive suit for defenses. I. Skelly Oil v. Phillips Petroleum Co. (1950). "If, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to the state-created action, jurisdiction is lacking." II. Franchise Tax Board v. Construction Laborers Vacation Trust (1983). Reafrms Skelly Oil. CLVT administered a fund for paid vacations for construction workers. Issue was whether the fund was an "employee welfare benet plan" subject to ERISA regulation. Board led suit in state court against the three members for unpaid taxes, requested that the trust pay out of vacation funds. Trust claimed that under ERISA, state could not seek payment from the funds. Board led suit in CA court, seeking declaratory judgment about ERISA statute preemption. CLVT removed; district court found for board on the merits , but 9th Circuit reversed, nding state's ability to obtain payment to be preempted under state law. USSC held no SMJ; FQ only arose as a defense. (3) Arguments about the rule: (a) PROS: I. Stops Ds from using it to manipulate venue (removing based on a weak federal defense) II. Allows courts to determine SMJ from the outset of a case, rather than what may come later in a case. (b) CONS: I. Federal courts should be able to decide cases that turn on federal law; the interest in having federal courts adjudicate federal issues is just as great when the FQ arises in a defense. II. Argue that FQ should exist whenever federal law is likely to be dispositive. b. Creation Test. A case arises under federal law if it is based on a cause of action created by federal law. (1) Holmes' Creation Test. A narrow test that only nds a federal question if federal law created the cause of action. Excludes from district courts cases in which causes of action are created by state law, but decision actually depends on the resolution of a question of federal law. (a) American Well Works v. Layne & Bowler (1916). P manufactures pump, claims it is the best. Claims D have slandered P by claiming the pump infringes on their patents. Sues; Holmes writes that "a suit for damages to business caused by a threat to sue under the patent law is not itself a suit under the patent law, so no federal question. While the Q of whether infringement occurred is an ingredient in the libel claim, that is not enough. (b) BUT SEE Shoshone Mining Co. v. Rutter (1900). Federal statute permitted federal courts to resolve disputes among miners concerning conicting claims on federal lands to be resolved "by local customs or rules of miners in the several conicting claims on federal lands." USSC said no federal question -- suit "may not involve any question as to the construction or effect of the Constitution or laws of the US," but may present simply factual Qs (when minerals were found, claim construction, effect of certain rules). c. Essential Federal Ingredient Test. Even if P does not alleged a cause of action based on federal law, there is a federal question if it is clear from the face of the P's complaint that a federal law that creates a cause of action or that reects an important national interest is an essential component of the plaintiff's state law claim. (1) THE TEST. From Grable & Sons v. Darue (2005): (a) is federal issue necessary to/imbedded in the state law claim? Can claim be stated WITHOUT federal ingredient?

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(b) is federal issue actually disputed? Is it contested by the parties? Has the legal issue not been authoritatively determined by the court? (c) is the federal issue substantial? Does the court have an interest in having the issue be resolved uniformly? (d) potential veto. can federal court hear the case without disturbing "any congressionally approved balance of federal and state responsibilities?" (2) Merrell Dow v. Thompson (1986). State law tort actions brought against drug manufacturer for birth defects allegedly caused by its drug. Ps contended the company had violated federal law by failing to include proper warning labels. Violation of federal law would have constituted presumption of negligence under state law. Court held that even though violation of federal law is a critical issue, no FQ jdx. One piece of federal law buried in a mountain of state law action. States a broad rule: if no private cause of action created by the federal rule, then no federal question jdx under 1331. (3) Smith v. Kansas City Title & Trust (1921). Shareholder sued to enjoin corporation from purchasing bonds issued by the federal government, arguing that the bonds were unconstitutional and thus state law delineating permissible investments would be violated. USSC held that the federal question because challenge to federal statute was an integral component of the P's claim. "General rule is that, where is appears from the bill or statement of the P that the right to relief depends upon the construction or application of federal law, the federal court has jdx." (4) Moore v. Chesapeake & Ohio Ry (1934). Injured railroad worker brings negligence action against railroad; state law said an employee could not be found liable of contributory negligence if the employer's violation of any safety law contributed to the worker's death or injury. So Q was whether RR violated the federal safety law. Court said no jdx. d. Federal law must create a cause of action or reect an important national interest. (1) Create a Cause of Action. Merrell Dow; negligence based on violation of FDA act; court held that because FDA act did not create a cause of action, no jdx. "If Congress had wanted the matter in federal court, it would have created a federal cause of action. (2) Reect an Important National Interest. FQ if there is an important national interest to be served by allowing FW jdx. (a) Grable & Sons v. Darue (2005). P brought state court quiet title action, seeking to reclaim property IRS had seized and sold to satisfy P's tax delinquency. P argued that IRS notice was defective, which invalidated D's title. Court (Souter) holds that federal issue was "substantial and disputed" issue of federal law warranting federal jdx. Backs away from Merrell Dow (at least requirement that you need private cause of action), but not going to lead to an inux of cases into federal court system. e. Fletcher on Merrell Dow and Grable. Doesn't like either, because they don't SORT right -- not enough guidance to lower courts on how to make this determination, and as a result, litigants spend a lot of time and money determining whether they can get into court

Suits Challenging Ofcial Action I. The Eleventh Amendment and Sovereign Immunity
A. TEXT of the 11A: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." B. History and Scope 1. Prior to the 11A: a. Chisolm v. Georgia (1793). C, a non-Georgia resident, sues Georgia for payment of bonds. Court nds both Art. III 2 and 13 of the judiciary act satised; this provision of the constitution abrogates the sovereign immunity that existed before. 39

Chisolm v. Georgia (1793). C, a non-Georgia resident, sues Georgia for payment of bonds. Court nds both Art. III 2 and 13 of the judiciary act satised; this provision of the constitution abrogates the sovereign immunity that existed before. (1) Judge Iredell's Dissent. Thought 13 didn't confer jdx; only had jdx "concurrent to the states." Because this suit could not be brought in Georgia state court, no jdx under 13 (no reason to reach constitutional question). 2. Response to Chisolm a. 11A is passed in direct response to Chisolm; response is immediate. 3. Subsequent Extension of Scope. Since the 11th amendment was enacted, its scope has been extended to suits by in-state citizens (Hans), suits against states in admiralty (Ex Parte New York), suits by foreign countries against states (Monaco), suits brought by Indian tribes (Noatec), suits brought against state in the state court (Alden) and suits brought by federal administrative agencies (XXX). a. Hans v. Louisiana (1890). Extends to suits brought by citizens of the state. P is a LA resident; LA issued bonds, P bought them, LA defaulted on them, and now P sues. Court holds that 11A bars the suit, even though P is a citizen of LA. (1) NOTE: Hans did not change the law, but rather clearly stated a proposition that existed in earlier cases. (2) BUT Lincoln County (1890). Unconsented suits against counties are permitted; cities were seen as being analogous to private corporations." (a) BUT Pennhurst: state's immunity DOES extend to local govs when there is so much state involvement in the muni's actions that the relief, in essence, runs against the state I. In Pennhurst, funding for county mental retardation programs came almost entirely from the state b. Ex Parte New York (1921). Bars suits against states in admiralty. c. Principality of Monaco v. Mississippi (1934). Bars suits by foreign countries against states. d. Villiage of Noatec (1974). Bars indian tribes from suing states. e. Alden v. Maine (1999). Bars suits in state courts against states. In doing so, court abandons textual reading of 11A and moves toward Fletcher's reading "11A immunity is convenient shorthand, but a misnomer." C. Theories of the Eleventh Amendment 1. The Fletcher Citizen/State Diversity Theory. a. Chicago Law Review article. (1) Support for the theory: (a) Marshall & Madison in the Federalist Papers. "Do not worry about citizen/state jdx head, shouldn't be read to confer jdx when suit is against the state." (b) Rejected Rutledge Amendment. Would have unambiguously have barred suits against states. (2) Problems with the theory: (a) Requires more words in the statue. Ideally, 11A would end with ""when jdx is premised on identities of the parties." b. Atascadero State Hospital v. Scanlon (1985). Brennan dissent adopts etcher view; only thing 11A does is require a narrow construction of afrmative grant of jdx in Art III 2; only limits the citizen/state diversity jdx head. (1) NOTE: Brennan takes 11A farther than Fletcher would have. Fletcher just says text of 11A doesn't lead to broad sovereign immunity, but this immunity might be found elsewhere (British law, federalism). Brennan says NO sovereign immunity when there is a federal command directing states to do something. 2. The Hans Theory. Bars jdx whenever parties are aligned in a certain way, regardless of cause of action. a. PROBLEM: This doesn't make sense. Hans was decided after the 14A was passed, which imposes obligations on states by name. If Hans imposes a band on all suits against states, then the 14A is eviscerated. D. Exceptions

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1. Stripping Doctrine. If you name a state ofcer in individual capacity, you may bring a suit against the ofcer for certain remedies for certain causes of action. a. The RULE. (1) Ex Parte Young (1910). Minn, an agro state, wants to limit the rates RRs can charge for transport of stuff; sets criminal penalties for violating the limits. Ps want to challenge these rates, but do not want to violate the law and be criminally detained. So they sue Y, Minn's atty general, in federal court, seeking the court to enjoin Y from enforcing the statute. DC hears the suit, enjoins atty general from enforcing the statute. USSC afrms; while 11A creates sovereign immunity for state, court permits legal ction; when D violates the constitution or federal statutes, he is not acting as the state. Only available for injunctive relief, not retroactive monetary relief. (a) NOTE: Principle that you could enjoin a state ofcer predated Young: I. Osborn (1824). Here, Osborn was the Ohio auditor, and suit was for the return of money seized from the bank by Osborn's agents. II. English Common Law. The king had sovereign immunity but the other ofcials could be sued to remedy wrongs done by the government. III. The Virginia Coupon Cases (1886). VA issued state bonds, doesn't want them to to be paid by coupons. Ofcer refuses to accept coupons, citing state statute, and suit is brought against the ofcer. Court did NOT force the ofcial to accept the coupons. (While Ps sought an injunction -forcing state to accept the coupons -- in essence they just wanted the state to honor its bonds. Not overruled by Young, which involved preventing a state ofcer from taking action that would harm a private party, not requiring the state to spend money. b. Availability of Relief. What monetary consequences against a state are permitted? (1) Individual Capacity Suits. 11A does not prevent suits against state ofcers for money damages to be paid out of ofcer's own pockets even when damages are retrospective compensation for past harms. State indemnication policies are irrelevant. (2) Prospective/Ancillary Relief. 11A does not prohibit a federal court form giving injunctive relief against a state ofcer even though compliance with the injunction will cost the state a great deal of money in the future. (3) But No Retroactive Relief. 11A prohibits a federal court from awarding retroactive relief (damages to compensate past injuries) when those damages will be paid by the state treasury (irrelevant that the individual ofcer is the named D). c. Exceptions to the Stripping Doctrine: (1) Edleman distinction between injunctive relief and retroactive relief, (2) Pennhurst limit on state law claims, and (3) Coeur d'Alene crazy "particular circumstances" balancing test. (1) Edleman v. Jordan (1974). Makes distinction between injunctive relief (permitted), and retroactive relief (not permitted). Under cooperative federalism statute, fed gave money to state, state administers program subject to requirements of federal law. Statute said state must process applications within 60 days, but Illinois was taking much longer (180 days). As a result, Ps were not paid for 120 days, Ps bring suit for retroactive relief. Court (Renquist) holds that retroactive relief is not permitted. (a) ALSO: Edleman holds that sovereign immunity can be raised for the rst time on appeal (looks a bit like a mandatory SMJ-style bar). (b) Milliken v. Bradley (1977). Courts are attempting to achieve meaningful desegregation of schools; court nds some unlawful discrimination by munis and state and orders remedial programs that cost money; orders state to pay cost of some programs based on state's past discrimination. This looks like a retroactive award of money, but allowed. Could be because: I. award is not paid directly to Ps (my theory)

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II. award is based on 14A, which was passed after 11A. III. different claim, different remedy (Fletcher's theory). (2) Idaho v. Coeur d'Alene (1997). Indian tribe brings suit against state over tribal boundaries, quiet title action, which looks like a negative injunction (don't come on our land). Court holds that no relief is available under Ex Parte Young, even though relief sought is injunctive. Kennedy says "balancing test" -look to a variety of factors in determining whether suit was permitted (rejected by seven other justices). Majority held that given "particular circumstances" of the case, no jdx -- state's special concern -- deeply routed in English history -- for its sovereign control of submerged lands and extraordinary intrusive effect on state interests that a judgment for the plaintiffs would have. (a) Seminole Tribe of Florida v. Florida (1996). Indian Gaming Regulatory Act requires states to negotiate in good faith with indian tribes about gaming issues. If state does not engage in good faith negotiations, specic statutory scheme provided. Suit brought against Florida and governor. In plurality opinion, Renquist holds that stripping does not work here; "Where Congress has prescribed a detailed remedial scheme for the enforcement against a state of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state ofcer based on Ex Parte Young." Offers no criteria to guide lower courts; White, whose vote was needed to get majority, does not provide his own reasoning. (3) Pennhurst v. Halrderman (1984). No stripping under Young available when remedy is based on state law. Ps bring claim that state-run schools for retarded children violate state and federal law, seek a decree to put a new scheme in place. (a) Fletcher: this produces very awkward results; forces wise litigant to litigate everything in state court. Best way to understand Pennhurst (4) Fletcher's View: it's impossible to make sense of these cases without considering the (1) type of action and (2) the remedy sought) (a) Type of Action. Actions that are more like torts seem to allow stripping; those that are more like Ks seem to not allow it. (b) Remedy. When Ps seek positive injunctions or to implement complicated schemes, courts seem less willing to allow stripping than they are with traditional negative injunctions. 2. Congressional Power to Abrogate State Sovereign Immunity a. The RULE: Current test to abrogate sovereign immunity: (1) Congress must show "clear unequivocal intent" (2) Congress must pass statute under a valid constitutional power that permits abrogation (currently, just 14A and possibly bankruptcy power) b. History of Abrogation (1) Can abrogate under 5 of 14A: (a) Fitzpatrick v. Bitzer (1976). Congress amended Title VII to allow individuals to sue state governments for money damages for discrimination based on race, color, religion, sex, national origin. The plaintiffs, male retirees sued the state of Connecticut for sex discrimination against them in its retirement policies. Connecticut invoked its Eleventh Amendment sovereign immunity, and the District Court, and Court of Appeals both allowed only injunctive relief, denying monetary recovery (although the Court of Appeals permitted attorney's fees). Both of those courts pointed to Edelman v. Jordan, 415 U.S. 651 (1974), a recent United States Supreme Court case which had held that the Eleventh Amendment prohibits a federal court from ordering a U.S. state to pay money to an individual wronged by the state. USSC (Renquist) held that Congress had the power to abrogate the 11A under the 14A.

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(b) But CLEAR STATEMENT RULE: Congress must clearly state that it intends a statute to abrogate state sovereign immunity; there mere fact that a statute was passed under the 14A is not enough to show that Congress intended to nullify state sovereign immunity. However, expression of Congressional intent does not have to be in the text of the statute I. Quern v. Jordan (1979). No clear statement by Congress of intent to abrogate for 1983 actions. (Brennan dissent: unnecessary to reach the question because the Court had already ruled the notice ordered did not violate the 11A; 1983 was meant to override state sovereignty). (c) But limited by City of Bourne v. Flores (1997): must be (1) congruent and (2) proportional. I. City of Boerne v. Flores (1997). Religious Freedom Restoration Act (RFRA) was adopted in in 1993 to overturn a recent USSC that narrowly interpreted the free exercise clause of 1A. Court held that Congress under 5 of the 14A may not create new rights or expand the scope of rights; limited to laws that prevent or remedy violations of rights recognized by the Supreme Court and these must be narrowly tailored -- "proportional" and "congruent" -- to the constitutional violation. II. The congruent and proportional test is not well dened. It is best to compare to cases. Generally, the test seems to be whether Congress identied and responded to to "a history of widespread and persisting deprivation of constitutional rights." A. Cases rejecting suits against states: 1. Florida Prepaid v. College Savings Bank (1999). NJ company sues Florida state agency for patent infringement. Congress had amended patent law in 1992 to permit suits against state governments. USSC said this was not a valid exercise of power under 5 of the 14A; "does not respond to a history of widespread and persisting deprivation of constitutional rights," and Congress identied no pattern of patent infringement by the states "let alone a pattern of constitutional violations." Not like the pattern of racial discrimination confronting Congress in the voting rights cases. 2. Kimel v. Florida Board of Regents (2000). Court holds that Age Discrimination Act could not be used to sue state governments; burdens on state and local governments are disproportionate to any unconstitutional behavior that might exist. Said no "ndings" by Congress of substantial age discrimination by state governments, and thus because of lack of evidence of widespread and unconstitutional age discrimination by states, ADEA not a valid exercise of power under 5 14A. 3. University of Alabama v. Garrett (2001). Court found that Title I of the ADA, which prohibits employment discrimination against the disabled and requires reasonable accommodation by employers, was not congruent and proportional to 14A 5. Five-tofour decision by Renquist; "legislative record fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled." B. Cases allowing suits against states: 1. Nevada Dept. of Human Resources v. Hibbs (2003). Family and Medical Leave Act was valid congressional abrogation of state sovereign immunity. Renquist distinguished from Garrett and Kimel in that gender discrimination receives intermediate scrutiny, not the rational basis scrutiny used in age/disabled discrimination tests. 2. Tennessee v. Lane (2004). Like Garrett, involved ADA, but Title II (access to public facilities). Lane was a disabled criminal defendant who had to crawl on his hands and knees into court. Stevens (in 5-4 decision) wrote that there is well-established fundamental right of access to the courts; said Congress has greater latitude to legislate 5 when dealing with a claim that received heightened judicial scrutiny, whether because of fundamental right or because its a type of discrimination that received heightened scrutiny. 43

knees into court. Stevens (in 5-4 decision) wrote that there is well-established fundamental right of access to the courts; said Congress has greater latitude to legislate 5 when dealing with a claim that received heightened judicial scrutiny, whether because of fundamental right or because its a type of discrimination that received heightened scrutiny. 3. United States v. Georgia (2006). G was a disabled state prisoner in prison not built for those with disabilities. Brings suit under Title II of the ADA. Extends Lane to situations where there is no fundamental right, Scalia (writing for unanimous court) held that G alleged a constitutional violation (cruel and unusual punishment). (2) USED TO BE ABLE TO abrogate under Art I 8. (a) Pennsylvania v. Union Gas (1989). Plurality held that Congress may abrogate sovereign immunity under the commerce clause. (b) Union Gas is overruled by Seminole Tribe. Congress lacks power to abrogate the 11A immunity under Indian and Interstate Commerce Clauses; "the 11A restricts the judicial power under Art III, and Art I cannot be used to circumvent the constitutional restrictions placed on federal jdx." (3) No abrogation for patent power (Florida Prepaid), but breaches in the dyke for Art I bankruptcy power: (a) Central VA Community College v. Katz (2006). Court allows bankruptcy court to void a preferential transfer to a state entity. Bankruptcy is an Art I 8 power, which seems to go against Seminole Tribe. Court did not treat Bankruptcy Clause as a source of power that enabled Congress to abrogate sovereign immunity, but held that the nature of the bankruptcy power was such that states could not claim immunity from suits. Justications for Katz: I. person who would be hurt is not the bankrupt but the other creditors. II. Court is saying the state should not be an advantaged creditor. (b) Tennessee v. Hood (2004). Allows bankruptcy courts to discharge debts to states. To do this, court analogizes to in rem proceedings in admiralty, when issue is salvage of a ship and the state ins one of the claimants, the stat has no sovereign immunity. II. Federal Relief Against Local Governments and State and Local Government Ofcials A. Constitutional Protection Against Unauthorized State Action 1. 14th Amendment 1: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law" a. State Action Requirement. Actions taken by an ofcer in his or her ofcial capacity constitute state action, whether or not the conduct is authorized under state law. (1) Home Telephone v. City of LA (1913). City ordinance regulated rates charged by phone company. Ps argued that they were so low they were conscatory and violated the 14 A. Court held that Ps were not required to bring case rst in state court to determine if the city's actions violated state law. (a) Rejected Barney, an earlier case that held that if something violates state law, it can't be a violation of the 14A because it's not a state action. (2) BUT SEE Williamson County v. Hamilton Bank (1985). Court holds that in cases involving physical taking or regulatory taking in land use, there is no mature takings claim until the zoning authority's action has been tested in the court of the state and all state remedies have been exhausted. Requires exhaustion of both (1) state law and (2) state administrative procedures. (a) Justications for Williamson. Maybe property is different; perhaps regulatory takings are inherently uid, regulations offer a lot of exibility and exceptions, and it's hard to see just how the regulation will effect the P until the state causes of actions are exhausted (raises mootness issues). (b) Problems with Williamson. Ps will have to bring suits in state court to to exhaust state law measures but then will be barred by issue preclusion from raising similar issues in federal court. See San Remo Hotel v. SF (2005).

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b. Relation Between the 11th and 14th Amendments (1) Injunctions are permitted against state ofcers who act under the color of state law to violate the 14th Amendment. (2) What is NOT the act of the state for purposes of the 11A IS an act of the state for purposes of 14A B. Statutory Protection Against State Ofcial Action (1983) 1. Text of 1983: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory of the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any person within the jdx thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . " 2. No 11A Abrogation under 1983 a. Quern v. Jordan. Court nds that 1983 does not abrogate the 11A immunity. This makes sense, because under Maine v. Thiboutot (1980), 1983 provides a right of action far beyond the equal rights sphere. If Quern found otherwise, there would essentially be no 11A immunity. 3. Requirements: a. D acts "under color of state law" b. D is a "person" under the act. c. D violates any statutory or constitutional right 4. Requirement ONE: "Under Color of State Law" a. The RULE: 1983 liability exists for all actions taken in an ofcer's ofcial capacity, whether authorized by state law or in violation of it. (1) Monroe v. Pape (1961). 13 Chicago police ofcers break into M's house, make him stand naked, ransack his house, taken to police station, never arrested, no charges, no search or arrest warrant. Court holds that ofcers are acting under color of state law; no requirement that P show ofcers' actions are compliant with state law. (a) Monroe holdings: I. A P may bring a 1983 suit even if the state provides judicial remedies that would appear completely adequate to redress the injuries II. No exhaustion requirement; "the federal remedy is supplementary to the state remedy." III. No liability for municipalities; respondiat superior does not apply (overruled in Monell). Based on a reading that municipalities were not "persons" under the Act and because the legislative history showed a rejected amendment offering limited municipal liability. (b) Justications for Monroe: I. If there was an exhaustion requirement, federal courts might be obliged to accord res judicata and collateral estoppel effect to state court rulings, which could render 1983 actions virtually meaningless. (2) Patsy v. Board of Regents (1982). Court held that in addition to there being no state law exhaustion requirement, there was also no requirement to exhaust administrative remedies. 5. Requirement TWO: Meaning of "Persons" -- Who can be sued? a. Individual ofcers: (1) If municipal ofcers, no 11A problem (2) If state ofcers, damages are available, but only for constitutional torts. (a) MORE HERE!!!! (3) Personal/Individual Capacity Status. This doesn't directly affect the state; state may or may not choose to reimburse the ofcer; does not convert the suit from individual capacity to ofcial capacity. (4) Ofcial Capacity Status. Barred by 11A unless P is seeking prospective relief.

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b. Local Government/Municipal Liability (1) Monell v. Dept. of Social Services (1978). Suit against NY challenging a policy requiring pregnant teachers to take unpaid leaves of absences. Court (Brennan) overruled Monroe, holding that municipal governments may be sued, but only for their own unconstitutional or illegal policies. No theory of respondeat superior. A policy or custom may violate 1983, however. (2) What is a policy or custom under 1983? (a) action of a municipal body. "A single decision by its properly constituted legislative body -because even a single decision y such a body unquestionably constitutes an act of ofcial government policy. Pembaur v. City of Cincinnati (1986). (b) action by a municipal agency or board that exercises authority delegated by the municipal legislative body. (c) individuals with nal decisionmaking authority. I. Pembaur (1986). Court held that a order by a prosecutor to break down a doctor's door constituted a city's ofcial policy. (d) Policy of inadequate training or supervision. Only where a failure to train reects a "deliberate" or "conscious" choice by a municipality. City of Canton, Ohio v. Harris (1989). (e) Custom. Customs that cause constitutional violations, even if haven't received formal approval from the ofcial legislative body. Custom develops from the "bottom up." c. NOTE: Attorney's Fees Under 1988. (1) Civil rights suits are very difcult to prove, and often have small damages (2) Without statutory provision for atty fees, many 1983 suits would not be brought (3) Statutory provision under 1988 is asymmetrical: (a) If P prevails in judgment, P receives atty fees (P even receives atty fees if P receives a favorable settlement) (b) If D prevails, D receives atty fees only if suit was frivolous 6. REQUIREMENT THREE. "Deprivation of Rights" under 1983. What are "rights" under 1983? a. Statute says "rights secured under the Constitution and Laws," but some pre-Thiboutot cases held that 1983 only included violation of equal rights under 14A or statutes implementing the 14A. Overruled in Thiboutot! b. Statutory Rights (1) Maine v. Thiboutot (1980). Ps led suit against Maine and its ofcers, claiming they had violated federal statutory provisions concerning calculation of welfare benets. State argued that there was no cause of action, because 1983 could only be used to remedy violations of statutes intended to enforce the 14A. Argued that legislative history of 1983 only concerned protecting civil rights (was part of the 1871 Civil Rights Act). Court held that 1983 covers not only constitutional violations, but all federal statutory violations without limitation as to type of cause of action. (seriously limited by later cases). (a) Thuboutot was a MAJOR expansion of the scope of 1983. Seemingly recognized a cause of action for all violations of federal laws by state and local governments and their ofcers. Would do away with the need to read a cause of action into a statute, and through 1988 would provide atty fees in each case. (b) EXCEPTIONS TO THIBOUTOT: I. 1983 may not be used to enforce statutes that explicitly or implicitly preclude 1983 litigation A. Middlesex County v. National Sea Clammers Association (US 1981). Court found congressional intent to prevent 1983 enforcement to be inferred from a comprehensive enforcement mechanism within a federal statute (authorized citizen suits, administrative remedies, and enforcement actions by EPA).

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B. Wright v. City of Roanoke (US 1987). Court found that formal and informal administrative hearings were not the type of comprehensive enforcement mechanism necessary to preclude litigation under 1983. Court places burden on D to demonstrate 1983 litigation is precluded. Also shows admin remedies alone do not preclude 1983 litigation. C. City of Ranco Palos Verdes v. Abrams (US 2005). Issue was whether private remedy under the statute, which provided narrower relief than 1983, precluded 1983. Scalia says to use 1983, plaintiffs must demonstrate "by textual indication, express or implicit, that the remedy is to compliment, rather than supplant, 1983." D. Fitzgerald v. Barnstable School Committee (US 2009). Alito holds that Title IX of the Education Amendments does not preclude a 1983 action alleging unconstitutional gender discrimination, citing congressional intent. In gauging intent, he notes that (1) remedies provided by Title IX are not elaborate or restrictive enough to preclude 1983 and (2) divergence between scope of protections provided by Title IX and by 1983 (ability to sue different people, etc). II. federal statute must create a right A. Pennhurst State School and Hospital v. Halderman (US 1981). Renquist holds that Developmentally Disabled Assistance Act appeared merely to declare policy and not to create substantive rights. B. Gonzaga University v. Doe (US 2002). Court holds that a law adopted under the spending power may be enforced through a 1983 action only if Congress clearly intended to create a private right of action, and so 1983 may not be used to enforce provision of Family Educational Rights Act. Sole remedy was the withholding of federal funds. C. Golden State Transit Corp v. City of Los Angeles (US 1989). Court says federal statute is enforceable under 1983 if (1) statute creates a binding obligation, (2) if the interest created by the statute is sufciently specic as to be judicially enforceable, and (3) the provision was intended to benet the plaintiff. c. Constitutional Rights (1) Any judicially recognized constitutional right can serve as the basis of a 1983 claim, but if the P seeks to vindicate a procedural due process right, he must show there is no adequate state remedy. (a) Parratt v. Taylor (1981). P is state prisoner; prison loses his mail ($25 hobby kit). Brings suit, alleging 14A due process violation -- deprivation of property without due process. Court says P is entitled to due process, but given nature of the deprivation, due process rights are protected by a postdeprivation remedy (perhaps an administrative proceeding or action in state court). I. FLETCHER NOTE: Parratt does NOT say "due process does not protect against negligence, just against intentional or knowing violation." Renquist could have written this, but he didn't. (b) Hudson v. Palmer (1984). Prisoner brings suit claiming intentional destruction of property during a prison shakedown. Court says even though it may have been intentional postdeprivation procedures are sufcient. (c) Daniels v. Williams (1986). Prisoner brought 1983 action after he tripped on pillow negligently left by prison ofcial. Court held that there was no constitutional violation because mere lack of due care by a state ofcer cannot constitute a deprivation of liberty or property under the 14A. I. Fletcher: two ways to read Daniels: A. no liability for negligence in deprivation of liberty or property under 14A (thinks this is wrong) B. BROAD READING. State of mind necessarily required for a 1983 action is an intentional act. Fletcher thinks this is an overreading of Daniels. There are cases brought by state prisoners claiming unsafe prison conditions; in these cases, there is no requirement for the Ps to show intent. 47

BROAD READING. State of mind necessarily required for a 1983 action is an intentional act. Fletcher thinks this is an overreading of Daniels. There are cases brought by state prisoners claiming unsafe prison conditions; in these cases, there is no requirement for the Ps to show intent. C. NARROW READING. Regular negligence alone is not enough to support a due process claim, but something less than purpose to deprive might be sufcient. (d) Zinermon v. Burch (US 1990). P walks into state mental hospital, voluntarily commits himself. He is kept longer than he can be committed under state law. Procedure for keeping him for a certain period of time is not followed by Dr. Z. Kept in violation of procedures that are clearly laid out. P brings damages suit under 1983 against doctor. Court claried Parratt: I. Parratt applies to claims of deprivation of liberty as well as for loss of property. II. Parratt only applies when the P is objecting to a failure to provide adequate procedural due process. Parratt does not apply if the P claims a violation of a substantive constitutional right, whether it is a right secured by the Bill of Rights or one protected under substantive due process. III. Parratt only applies when there is an adequate postdeprivation remedy; when there is no adequate postdeprivation remedy; here, the violation became complete at the time of the violation itself. III. Ofcial Immunity A. The Basis for Ofcial Immunity 1. OI, unlike sovereign immunity, is grounded in pragmatism; don't want ofcers to second-guess their actions or be unduly timid. 2. Judge Hand on why Ofcial Immunity is required: justication for OI is "that it is impossible to know whether the claim is well founded until the case has been tried, and to submit all ofcials to the burden of a trial . . . would damper the ardor of all but the most resolute, or the most irresponsible, in the uninching discharge of their duties." From Gregoire v. Biddle (2d Cir. 1949 Hand). 3. Completely Judge-Made Law. Born out of the common law. Fletcher questions whether immunity should be a common-law doctrine. Perhaps Congress intended to move beyond immunity when they passed 1983. 4. Only a Federal Issue. Determining immunity to 1983 is entirely a question of federal law, Wood v. Strickland (1975), even when brought in state court, Howlett v. Rose (1990). 5. A ruling denying immunity is immediately appealable. Mitchell v. Forsyth (1985). This makes litigation more expensive, because of interlocutory appeals. B. Absolute v. Qualied Immunity 1. Absolute: barred at 12(b)(6); eliminates nearly all of possible burden, expense, and anxiety of litigation. 2. Qualied: results in dismissal only if D is not alleged to have: a. violated clearly established b. statutory or constitutional rights c. of which a reasonable person would have known C. Absolute Immunity 1. Presumption is that qualied rather than absolute immunity is sufcient to protect government ofcials. Burns v. Reed (1991). 2. Judicial Immunity. a. The RULE. Unless a judge is acting entirely and clearly outside his/her jdx, he/she has absolute immunity for any actions he/she takes. This protects far beyond the core judicial function. (1) Stump v. Sparkman (1978). Judge orders the sterilization of a 15-year-old girl because she is "somewhat retarded." Girl brings suit against judge. Court holds that judges have absolute immunity for suits for monetary damages for their judicial acts, even if the judge acts maliciously. (2) Nevada Case. Young man has lots of parking tickets, supposed to show up to answer for them, so order physically to appear. Has new job that starts on Monday, calls into clerk's ofce and gets into a backandforth on telephone, clerk says "if you are starting a new job, send someone in on your behalf." 48 sends in his girlfriend. she says "i am appearing in behalf of . . . " judge says "he has to appear in person, i am going to hold you here until he shows up." handcuffed and held in the back of the courtroom until he shows up, then she is released. WF wrote the opinion; found absolute immunity.

Nevada Case. Young man has lots of parking tickets, supposed to show up to answer for them, so order physically to appear. Has new job that starts on Monday, calls into clerk's ofce and gets into a backandforth on telephone, clerk says "if you are starting a new job, send someone in on your behalf." sends in his girlfriend. she says "i am appearing in behalf of . . . " judge says "he has to appear in person, i am going to hold you here until he shows up." handcuffed and held in the back of the courtroom until he shows up, then she is released. WF wrote the opinion; found absolute immunity. 3. Prosecutorial Immunity a. The RULE. Prosecutors performing their litigating functions receive absolute immunity; in non-litigating function they have only qualied immunity. (1) The line between a litigating function and non-litigating function is blurry, but tends to include nonlitigating stuff: (a) knowingly presenting perjured testimony resulting in a wrongful conviction: absolutely protected. (b) issuing search warrants or providing advice to police that is knowingly wrong: qualied immunity (c) failure to turn over Brady material: absolute immunity. (d) McGhee v. Pottawanuie County (2010). Prosecutors help feed witness story; trial goes forward, men are convicted and serve 24 years. WF thinks they will nd absolute immunity. (e) Fletcher's Suggestion: AI unless person has been acquitted or is out on habeas. This would limit bad prosecutorial behavior, but would not open up prosecutors to harassing suits. 4. Legislative Immunity a. Not only do legislators and their aides receive AI against damages, they also can receive immunity against injunctions (this comes up often). b. Gravel v. US (1972). Aides of members of Congress have absolute immunity for acts performed for members in relation to their legislative function; this is found in the Speech & Debate Clause. D. Qualied Immunity 1. The RULE: An ofcer is immune from damages UNLESS a reasonable ofcer in the position of D would have known that his conduct clearly violated the constitution. 2. Harlow v. Fitzgerald (1982). Introduces the two step test for QI: a. is the legal rule clearly established? b. if so, would reasonable ofcer have known that his action violated the rule? c. Abandons subjective inquiry from earlier law (too hard to determine from the pleadings) 3. Old method: a. Saucier v. Katz (2001). Court must raise the two inquiries in the following order: (1) taken in the light most favorable to the party asserting the injury, do the facts alleged show the ofcer's conduct violated a constitutional right? (2) If so, was the right "clearly established?" 4. New method: a. Pearson v. Callahan (2009). Lower court judges should exercise their sound discretion in deciding which of the two prongs of the QI test to address rst. 5. Police ofcers get qualied immunity. Test is whether a reasonable ofcer had known this was illegal. E. Policy Reasons for Ofcial Immunity

The Relationship Between the Federal Courts and the States

I. The Anti-Injunction Act A. History and Text 1. Limited the power of federal courts to enjoin state court proceedings. a. An injunction is a use of the court's contempt power to immediately enjoin an act or proceeding.

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2. 1874 TEXT: "The write of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." 3. 28 U.S.C. 2283. 1948 TEXT and current RULE: "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 jdx, or to protect or effectuate its judgments." a. NOTE: applies to both direct injunctions against state courts and indirect injunctions against parties who are pursuing state court action. B. The Rule 1. Atlantic Coast Line RR v. Brotherhood of Loco Engineers (1970). Forbids fed court injunctions of state court proceedings unless: a. injunction is expressly authorized by act of Congress b. injunction is necessary in aid of jdx c. injunction protects or effectuates the federal court's judgments 2. NOTE: unclear if the rule applies to declaratory judgments as well. a. 28 U.S.C. 2202. Declaratory Judgment Act. Allows federal courts to enforce declaratory judgments with "necessary and proper relief." C. The Exceptions 1. Injunction is expressly authorized by act of Congress. But the USSC has interpreted "expressly" broadly to include statutes where the statute can be "given its scope" only if the court has the freedom to enjoin state court proceedings (Mitchum v. Foster). Examples: a. True express authorizations: (1) Bankruptcy. Allows automatic stay of related state court proceedings (2) Removal. Allows injunction of state court proceeding if state court refuses to relinquish power over a properly removed case b. 1983. Mitchum v. Foster (1972). (1) Mitchum v. Foster (US 1972). Court nds 1983 is an exception to AIA, even though nothing express in the statute to that effect. Looks to other statutes that have been found to except AIA and nd that "an Act of Congress must have created a specic 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." (a) Fletcher: "express" just means "express or otherwise clearly indicated, just try to convince us." (2) Mitchum and Younger. Mitchum is puzzling in light of Younger, decided a year earlier. Younger held that the fed court should abstain because of considerations of equity and comity. (a) COURT could have avoided paradoxical relationship between Mitchum and Younger by holding in Younger that the injunction was barred by the AIA because 1983 doesn't contain express authorization. If court had taken this approach, it would not have needed to create an independent bar to federal court injunctions and could have avoided separation of power concerns in Younger. (3) Effect of Younger and Mitchum: (a) Two independent barriers to federal court injunctions of state court proceedings: I. judicially created abstention doctrine II. Anti-Injunction Act. (b) Both must be overcome (c) Section 1983 constitutes an exception to the AIA, but not to the Younger doctrine (so the case has to t into one of the Younger exceptions).

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2. Injunction is necessary in Aid of Jdx a. Applies in only two circumstances: (1) where a case is removed from state court to federal court (2) where the federal court rst acquires jdx over a case involving the disposition of real property b. Removal. If case is removed from state to federal court and state doesn't relinquish jdx, the federal court may enjoin further state court proceedings c. Real Property. Whatever court initially acquires in rem or quasi in rem jdx over a matter involving property, it can enjoin all other courts from hearing the matter. BUT unclear why injunctions are necessary to avoid inconsistent dispositions because traditional principles of preclusion and estoppel should ensure that the decision of the court that decides rst will be followed. (1) NOTE: has been expanded in some lower courts to extend to certain forms of institutional decrees or class actions because having another court interfere with a form of class action may interfere too much with what's going on. 3. injunction protects or effectuates the federal court's judgments a. Prohibits relitigation of issues decided in federal court. b. Permits federal courts to enjoin state proceedings if necessary to ensure the preclusive effect of an earlier federal court decision c. Meant to overrule Toucey (1) Toucey v. NY Life Ins Co. (1941). Narrowed the exceptions, holding that injunction against state court proceedings was inappropriate. Overturned by 1948 revision of the act. d. Prevents the harassment of federal court litigants by repetitive state court proceedings and ensures the nality of the federal courts' decisions. 4. Speed is important. If there are parallel proceedings and the federal court goes to judgment rst, the winning party must seek an injunction of the state court proceeding quickly. a. Parsons Steel v. Alabama Bank (1986). P sued D in federal and state court on the same causes of action. Fed court nds in favor of D, then P pursues state court decision. D raises res judicata defense in state court, but state court held that the earlier state court decision did not preclude state court proceedings, enters judgment for P. Court holds that if you submit to the state court the res judicata Q, you have to abide by what the state court decides. So better to ask immediately in fed court for injunction to require state to give RJ effect. Relitigation exception is limited to those situations in which the state court has not yet ruled on the merits of the res judicata issue. II. Pullman Abstention A. The RULE: court may abstain when a federal district court must answer a difcult question of state law. 1. Also: a. Thibodaux Abstention. Abstention in diversity cases because of unclear state law. b. Burford Abstention. Abstention because of complex state administrative procedures. B. No longer common due to the increasing availability of certied questions. 1. Certied Questions: state law procedures allowing (or requiring) the state supreme court to answer questions of state law from the district court. 2. In CA, the only fed court that can certify a Q is the 9th Circuit, and the CA SC takes about half of the Qs the 9th Circuit certies III. Younger Abstention A. The RULE: A federal court may not enjoin state criminal proceedings absent bad faith, harassment, and unusual circumstances. 1. Younger v. Harris (1971). D was a quasi-radical in CA, P was then the DA in the city of LA. Brings criminal prosecution against D under CA act which was almost certainly unconstitutional (cannot write or publish "subversive" material). D brings action in federal court to enjoin the state criminal proceeding. Court holds 8-1 that federal court cannot issue injunction due to "our federalism" and "basic considerations of equity and comity." Also 51 dismissed intervenors who had not been indicted, arrested, or threatened as unripe. Court holds no injunction unless (1) bad faith or harassment, (2) patent or agrant unconstitutionality, or (3) other extraordinary circumstances.

B. C.

D.

E. F.

Younger v. Harris (1971). D was a quasi-radical in CA, P was then the DA in the city of LA. Brings criminal prosecution against D under CA act which was almost certainly unconstitutional (cannot write or publish "subversive" material). D brings action in federal court to enjoin the state criminal proceeding. Court holds 8-1 that federal court cannot issue injunction due to "our federalism" and "basic considerations of equity and comity." Also dismissed intervenors who had not been indicted, arrested, or threatened as unripe. Court holds no injunction unless (1) bad faith or harassment, (2) patent or agrant unconstitutionality, or (3) other extraordinary circumstances. Distinguishes from Dombrowski. a. Dombrowski v. Pster (1965). Case in the south in which civil rights organizations were being harassed by the local DA and police. Prosecutor threatens prosecution but never les for information or indictment. Court allows injunction. In Younger, they distinguish over the issue of whether the state court proceeding has commenced. In Dombrowski, no indictment. In Younger, the prosecution had been brought. 2. Also applies to declaratory judgments. Samuels v. Mackell (1971). NOTE: Younger Abstention can be waived by the state. Ohio Bureau of Employment Servs. v. Hodory (1977). Exceptions to Younger. These are basically nonexistent today 1. Bad Faith or Harrassment a. Cameron v. Johnson (US 1968). b. Hicks v. Miranda (US 1975). Police raid theatre, seize copies of "Deep Throat," and arrest projectionists but not owners. Issue order to show cause against owners in state court. Then owners bring suit in federal court, seeking an injunction/declaratory judgment that the lm is not obscene. Then the prosecutor criminally charges the owners in state court. Court (White) holds that the federal court cannot issue relief on two grounds: (1) Owner's case is "too intertwined" with state court proceedings; same facts, same lawyers, etc. Fletcher: this is a dead letter post-Steffel. (2) Criminal proceedings were led before any substantive proceedings in federal court. (a) Saving Dombrowski. Fletcher: this might look like it conicts with Dombrowski, but it doesn't totally kill Dombrowski. If the problem is truly harassing behavior by the police and DA, without any intent to arrest the Ps, then Ps can still get the relief they want in federal court. Similarly, if the problem in Dombrowski is that the Ps can't get an authoritative decision out of a court as to whether or not they are breaking the law (because the prosecutor just wants to harass them), then Hicks solves that issue -- they will get a trial, be it in state or federal court. 2. Patent and Flagrant Unconstitutionality a. Trainor v. Hernandez (US 1977). 3. Other Extraordinary Circumstances a. Gibson v. Berryhill (US 1973). Criticisms of Younger. 1. Younger fails to respect congressional policy by requiring abstention under 1983, whose purpose was to "interpose the federal courts between the States and the people, as guardians of the people's federal rights." Mitchum v. Foster (1972). 2. Parity. Younger relegates Ps claiming constitutional rights violations to state forums that they expect to be less sympathetic to their claims that the federal court in which they would prefer to litigate. 3. Barrier to Prospective and Class Relief. Stops the federal system from offering guidance to state criminal courts (e.g., Pelican Bay cases). What's Left After Younger. Ds still have the possibility of discretionary USSC review, and still availability of federal habeas corpus. The Steffel Window. 1. The RULE: federal courts may issue declaratory relief if state criminal proceedings are threatened, but not pending (Steffel), but may not provide declaratory judgment if a state prosecution is commenced before the federal court procedures are substantially completed (Hicks). 52

The RULE: federal courts may issue declaratory relief if state criminal proceedings are threatened, but not pending (Steffel), but may not provide declaratory judgment if a state prosecution is commenced before the federal court procedures are substantially completed (Hicks). a. Steffel v. Thompson (1974). S and C are distributing yers outside a mall in Georgia. Police say "stop distributing or we will arrest you. C is arrested, S leaves to avoid arrest. C's criminal prosecution begins. S brings suit for declaratory judgment that his conduct is protected. Court nds that declaratory judgment is appropriate, both to challenge statute as applied and a facial attack.

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