FEDERAL COURTS NOTES

JMLS Fall 2009

Professor Jamie Shapiro

What’s the difference between a right of action and a cause of action?

Right of action = license to sue (e.g., a license to drive)
Cause of action = facts of case that give rise or don’t give rise to claim (e.g., car to
drive)

Rights of action can be based on fed/state constitution, fed/state constitution,

fed/state common law
Federal common law can give rise to a cause of action
Substantive rights and rights of action can come from the same source or different
sources
Can’t have a 1983 suit without violation of substantive constitutional rights

Bivens - what kind of right of action did he have?

Respondents: he had no right of action
Petitioner: 42 USC 1983 - gives plaintiffs right to sue for constitutional violations
Can sue municipal organizations/officers but not state entities
Officials acting under the cover of state law, not federal law
Cause of action - unreasonable search without probable cause which caused trauma
Sought $$ damages for tort claim in federal court against federal agents
Before this case, Bivens would have had to sue in state court
Supreme court infers a right of action for Bivens from 4th amendment
What substantive right was violated here? Privacy
Civil actions against federal officers are known as Bivens actions
Must be able to distinguish between rights/causes of action on exam

What is a state statutory right of action in tort (not originally recognized at common
law)?
Wrongful death caused by negligence
What’s the source of law for breach of contract? Common law
UCC also provides source of law for redress

What’s a “common nucleus of operative facts”?

Can give rise to multiple rights of action
Cause of action = operative set of facts
Rise of action = underlying substantive right

Subject matter jurisdiction

1331 - federal question (statutory federal question/ as opposed to constitutional fed
question jurisdiction)
1332 - diversity
1343a3 - superfluous to 1331, kind of - companion jurisdictional statement to 1983

Standing - plaintiff must have some injury to file case (unless suing as class
representative or minor)

Restraints on exercise of jurisdiction

11th amendment - state sovereign immunity
Statutory limitations - e.g., injunction act, etc
Younger doctrine
Abstention doctrines - where courts could assume jurisdiction, but decline anyway
(this is important)

Presumption of concurrent jurisdiction between state and federal courts

Some cases, even 1983 claims, can be heard in state court as well as federal

9-1-09
Testa v. Katt
What was right of action?
What was cause of action?
Plaintiff sued in state court in Rhode Island
Rhode Island courts said the federal law was "foreign" in "private international"
sense?
Full faith and credit clause v. Supremacy clause
Rhode Island had concurrent jurisdiction with federal courts under the statute
involved here
What if: RI legislature created its own statute setting cap for these type of claims at
$1K? Then it could deny jurisdiction
"Valid Excuse" doctrine - where state somehow has sufficient excuse to deny
jurisdiction, e.g., no jurisdiction
however, state courts have general jurisdiction to hear just about any claim not
expressly excepted by federal government
Supremacy clause refers to supremacy of law, not supremacy of courts

Howlett v. Rose
right of action = 1983 claim
cause of action = 4th amendment via 14th amendment incorporation
Court: state courts don't get to say who has immunity under 1983 claims
States can't discriminate against federal laws

Federal laws created under constitution are the same against all citizens of every
state
"Existence of jurisdiction creates implication of duty to exercise jurisdiction"
there can be neutral reasons for declining jurisdiction (like caps on amounts
claimed, etc.)

Federal question jurisdiction

2 kinds of federal question jurisdiction
1. constitutional fed question jurisdiction ("protective" or "rising under" jurisdiction)
2. federal statutory jurisdiction (1331)

Osborn v. Bank of United States

Cause of action = illegal seizure of funds
Right of action = conversion (of fund)
plaintiff was federal government (bank of u.s.)
bank could sue or be sued in any court of the united states, due to its nature
federal question doesn't exist in statutory sense; congress gave fed courts
jurisdiction over any case involving the bank of u.s.
not a 1331 action
Bank of US was "federal ingredient" that gave district courts power to hear the case
"federal ingredient" falls somewhere between 1331 claims and constitutional claims

Verlinden v. Central Bank of Nigeria

Brought under Section 1330 (foreign sovereign immunities act of 1976)
Act created jurisdiction for federal courts (although it doesn't create federal
substantive right)
Verlinden was a Dutch company
Right of action was anticipatory breach of contract (state common law action)
What was the federal ingredient? importance of diplomatic relations
foreign sov immunities act allowed plaintiffs like Verlinden to bring action in fed or
state court; defendants have removal right
congress can create constitutional federal questions simply by passing valid statute

Louisville v. Nashville R.R. Co. & Mottley

Right of action = anticipatory breach of contract
Cause of action = contract claim
anticipated defense = federal statute re: railroad passes that affected validity of
contract
where is the federal question? there was none in the plaintiff's complaint/right of
action
only federal ingredient was in the defendant's anticipated defense
congress could have conferred federal jurisdiction over these cases in that statue
re: tickets
created fed question but without conferring automatic jurisdiction
so fed question was only in the railroad's defense

9-8-09
Franchise tax board:
Plaintiff doesn’t need to plead a defense as part of cause of action
Supreme court - no statutory fed question jurisdiction under 1331
If there’s no original jurisdiction in federal court, why does supreme court have
appellate jurisdiction?
One might assume that sup ct’s jurisdiction is derivative of fed court’s original
jurisdiction
Supreme court has broader jurisdiction - asserts under Constitution
Fed courts can only assert jurisdiction uner 1331 or 1332, 1330, etc

Grable & Sons v. Darue Engineering

What was the right of action? Quiet title
No federal right of action/was exclusively a state law right of action
Federal element = tax issue implicated within claim
why should us supreme court recognize federal jurisdiction here?
has to do with concern over opening fed courts to floodgates of state tort actions
court accepted this because it involved rare type of claim (as opposed to
negligence, e.g.)
it was a policy decision to allow fed question jurisdiction in this case
Grable is somewhat of an anomaly due to the nature of the case

Supplemental Jurisdiction
28 usc 1367
must be common nucleus of operative fact, and form part of "same case or
controversy" under Article III of constitution

*** dual sovereignty doctrine allows fed courts to prosecute people acquitted by
state courts, or vice versa (e.g., Rodney King case)
constitution permits prosecution by one sovereign after acquittal by the other, in
certain cases

What would happen if plaintiff brought 1983 action, without suing for battery,
assault, etc. (state rights of action)
Potential for res judicata to apply; however, if it can be determined that fed court
would not have exercised supplemental jurisdiction, then
state court may still be able to handle other rights of action
OK to split cause of action if, and only if, fed court would not have exercised
jurisdiction over certain state law rights of action

Res judicata applies if federal court would have had supplemental jurisdiction

Migra v. Warren City School District Board of Education

Ethel Migra was school district employee; had year-to-year contract with school
board
Board voted not to renew her contract in 1979
Migra was attempting to comply with desegration policies, and board refused to
renew contract in response
Migra won her contract-related claims in state court; then tried to bring a 1983
action in federal court stemming from same set of facts
Supreme court said she could not bring the 1983 action in fed court, for res judicata
purposes
she split her cause of action and tried to bring in both state and fed court; she
should have brought 1983 claim in state court w/ other claims
state courts have concurrent jurisdiction over 1983 claims
She could have also folded contract claims into federal 1983 case via supplemental
1367 jurisdiction

Allen v. McCurry
"bad facts make bad law"
Cause of action = warrantless entry of defendant's home; he opened fire on cops
and was imprisoned
Defendant filed motion to suppress at trial, but lost and was convicted
Motion to suppress involved litigation of 4th amendment rights (substantive rights)
Lost some portions of motion to suppress, won on some others
Later sued for 1983 claim;
4th amendment issues had been litigated at criminal trial via motion to suppress
McCurry tried to relitigate 4th amendment issues in 1983 civil claim
court said collateral estoppel (issue preclusion) applied because 4th amendment
issues were litigated in criminal trial
This case is flawed because McCurry had no opportunity to bring 1983 claim in
criminal case (unlike Migra situation)
*** motions to suppress are based on preponderance of evidence standard; burden
is on movant to prove constitutional violation
Under Allen v. McCurry rule, is it impossible to sue under 1983 for damages after
succeeding on motion to suppress in criminal trial?
In Haring, there was a guilty plea, followed by 1983 claim; no preclusive effect on
constitutional right issue since it wasn't actually litigated
If issue was not litigated thru motion to suppress, but case went through trial, it's
possible to still bring 1983 claim later
litigation in criminal context can preclude you from relitigating in civil context
* See: Section 1738 *
Full faith and credit - federal courts have to give same preclusive effect to state
court judgments as state courts would;
a "piggybacking" statute - fed courts are piggybacking on state law of res judicata
and collateral estoppel
res judicata/collateral estoppel laws are taken from the state where judgment was
rendered
there is no "federal law of res judicata/collateral estoppel"; it's all drawn from state
law.
Kremer v. Chemical
When state court affirms an administrative ruling, that can have preclusive effect

McDonald v. City of West Branch

Arbitration awards don't have preclusive effect because they're not judicial

9-15-09
Rooker-Feldman Doctrine
Can't challenge a state court judgment that is "putatively unconstitutional" in
federal district court
Federal court review would be tantamount to appellate jurisdiction
Later, the supreme court confined Rooker-Feldman doctrine to its facts, so it's not
frequently invoked anymore
must bring constitutional challenge in state court litigation if that's where you're
going to file.
Rooker-Feldman limited to where state court loser is trying to subsequently file in
federal court

Section 1983 Civil Rights Litigation - Exhaustion

Monroe v. Pape (1961)

*The federal remedy is supplementary to the state remedy, and the state
remedy need not be sought and refused before the federal remedy is
invoked.
Right of action = 1983 claim
Cause of action = 1983 action alleging 4th and 14th amendment violation
stemming from warrantless search of home by police officers
Named City of Chicago and individual police officers as defendants
City of Chicago and other defendants moved to dismiss on basis that it was not
liable under the Civil Rights Act
Brought 1983 claim in federal court (n. district of illinois dismissed, 7th circuit
affirmed dismissal, us supreme court took case on certiorari)
Holding: Municipalities are not "persons" within meaning of Section 1983; however,
officers could still be held liable
"Congress did not intend to bring municipalities within ambit of 1983"

Monroe v. Pape is a seminal case in 1983 litigation

Before Monroe, Section 1983 was largely dormant in civil rights litigation
How does one act "under color" of state law? By virtue of any authority given
through state
Basically, anybody in uniform
indemnification vs. municipal liability - note the difference
just because the city indemnifies its employees, it doesn't mean it is implicated
"under color" of state law is a broader concept than "scope of employment"
Acts can fall under color of state law even if state doesn't authorize
City of Chicago tried to argue that existence of state remedy preempts pursuit of
federal remedy
Court: "federal law is supplementary" - can file in either court
However, res judicata rules apply so plaintiffs should bring state law claims along
with federal claims

Exhaustion of state remedies is required for prisoner litigation

Procedural due process = right can be taken away, but only with adequate
opportunity for notice and hearing
Substantive due process means there is no process by which individual right/liberty
can be taken away
* what process is due?
fundamental rights fall under equal protection doctrine (e.g., right to travel, right to
vote, etc.)

Parratt v. Taylor
Cause of action:
Prison guards lost prisoner's $23 hobby kit; may or may not have been deliberate -
plaintiff asserted negligence
Right of action:
1983 suit for damages
Substantive right = right to private property
Procedural = deprivation of right without proper procedure
Court: when state provides adequate post-deprivation remedy, federal claims are
preempted
why wasn't there a proc due process violation here? because state had adequate
procedure for addressing (e.g., state tort remedy)
for procedural due process issue, plaintiff must not have been given process that
was due
in this case, court looked to state of Nebraska's tort claims act

How does this mesh with Monroe?

Exhaustion requirement only applies to Procedural due process claims, not all due
process claims
1983 claims alleging underlying proc due process right can be preempted if state
law had adequate procedures for such claims
Parratt applies only to PDP claims, not claims like those asserted in Monroe
* Parratt ruling was impacted by fact that it involved a trivial amount of loss

predeprivation remedies differ from postdeprivation because if pre-deprivation

remedies are inadequate, that can allow 1983 claim
predeprivation remedies must comport with federal law

Elements of 1983 claim:

some person deprived of substantive constitutional law
defendant acted under color of state law

what is a "person" for purposes of these claims?

Monell v. Department of Social Services

Municipalities are "persons" for Section 1983 purposes
Court used legislative history to form rationale for holding
No respondeat superior liability for municipal orgs
No punitive damages (Newport v. Fact Concerts)
State is not a "person" (11th amendment)
Personal and official capacity suits
Official capacity suit is tantamount to suit against employer/office
Personal capacity suit is against employee as an individual
*distinction doesn't matter much for municipal liability purposes
*matters for state liability purposes

Retrospective vs. prospective relief

State officials may be "persons" for purposes of prospective relief, but are not
persons for retrospective relief

Rights enforceable through 1983 suits

1983 is a vehicle for enforcing rights created by constitution or other federal
laws/statutes (aka substantive rights)
Statutory rights - supreme court is starting to close off potential causes of action for
some claims (e.g., Gonzaga & FERPA)
there can be implied preclusion of 1983 action by comprehensive statutory
remedial scheme (Middlesex v. Sea Clammers)
- clammers couldn't sue through federal environmental law; only EPA could have
taken action
If you're suing for habeus corpus, that's your exclusive remedy; you can't also sue
for 1983 money damages
(habeus corpus has its own "comprehensive remedial scheme")

State-of-mind and fault requirements

section 1983 lacks these requirements in its own prima facie case
must look to requirements within underlying substantive right

Daniels v. Williams - can no longer sue for negligent deprivations of procedural due
process
there must be intent to sue under 1983
"State action" and "under color of law" are basically synonymous

Causation issues = pretty much the same as in standard tort law

9-22-09

***re police 1983 liability; acts undertaken must be in some way related to police
duties
acts in 'ambit of private personal pursuits' are outside scope of 1983 liability

Defenses/immunity in 1983 cases

immunity is related to function
what are the sources of immunity in these cases?
personal immunity v. official immunity
Dennis v. Sparks
- judicial immunity
defendant conspired with judge (who had absolute immunity); immunity is not
shared with co-conspirator
Owens v. City of Independence (1980)
Police officer was discharged by city/police department without being given proper
notice and opportunity for hearing;
Officer sued city, city council members, and police department members that fired
him;
District Court said defendants had liability from the 1983 suit;
On certiorari, the United States Supreme Court reversed. In an opinion by Brennan,
J., joined by White, Marshall, Blackmun, and Stevens, JJ., it was held that in view of
the developments of the common law surrounding the immunity of municipalities
from suit, the history surrounding 42 USCS 1983, and considerations of public
policy, a municipality which is sued under 42 USCS 1983 for violation of federally
protected rights is not entitled to qualified immunity from liability by asserting the
good faith of municipal officials as a defense to the violation.

Even if an individual official might have qualified immunity, city could remain liable
due to customs & policy
if a city can't be vicariously liable for acts of employees, why should it be able to
assert good faith immunity defense of its office (can't share immunity w/ employee)
the is no "vicarious immunity" for the municipality (same line of thinking as no
vicarious liability for acts of employee)
plaintiff can't get punitive damages when employee gets immunity and city doesn't

supreme court of virginia v. consumers union

judges are entitled to legislative immunity when they perform legislative functions
action brought against virginia supreme court over rule barring lawyers from
advertising
(related to professional code of responsibility rule)
judges had absolute immunity
* until 1996, it was possible to sue judges for injunctive relief; later overruled by
statute

availability of immunity depends upon capacity in which defendant is sued

*never sue state by name since it will be bounced out under 11th amendment
must sue state official in personal capacity to seek damages
if suing a municipality, it doesn't matter whether you sue city/county or individual
official

function, rather than title, determines immunity

legislators acting in that capacity are absolutely immune from 1983 suits

Immunity for participants in state judicial processes

participants in quasi-judicial activities (e.g., arbitration hearings) have absolute
immunity, same as regular judicial participants
* policy rational protects all of these people, including jurors (for actions taken in
court setting)

Presidential immunity
no immunity for pre-presidential acts (Clinton v. Jones)

Immunity for persons who enforce/implement state and local laws

- qualified immunity when sued in individual capacities

What is qualified/"good faith" immunity?

Harlow v. Fitzgerald
* under Wood v. Strickland, "subjective good faith" was the test that courts applied
"Qualified immunity is defeated if an official knows or reasonably should know that
the action he takes within his sphere of official responsibility will violate the
constitutional rights of the plaintiff, or if he takes the action with the malicious
intention to cause a deprivation of constitutional rights or other injury."
"Government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known."

The previously recognized "subjective" aspect of qualified or "good faith" immunity

-- whereby such immunity is not available if the official asserting the defense "took
the action with the malicious intention to cause a deprivation of constitutional rights
or other injury," Wood v. Strickland, 420 U.S. 308, 322 -- frequently has proved
incompatible with the principle that insubstantial claims should not proceed to trial.
Henceforth, government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate
"clearly established" statutory or constitutional rights of which a reasonable person
would have known.

Knowledge/constructive knowledge is imputed to the official

"good faith" is actually not a good term to use because it implies subjective factors

if action violated "clearly established" federal statutory or constitutional rights, then

knowledge is imputed to the official

defendant can say he neither knew nor should have known of the relevant legal
standard, or "clearly established" right

Harlow test is primarily "objective", as opposed to Wood v. Strickland test

* What makes a "clearly established" right?

generally, must have been settled by the US supreme court and have had enough
time (1 yr or so) to trickle down and take effect

Court must grant defendant's motion for summary judgment if the substantive
rights plaintiff seeks to enforce had not yet received
"widespread judicial recognition" when the alleged violation took place

state immunity rules

- inapplicable to 1983 suits (Howlett)

----------

INJUNCTIVE RELIEF
City of LA v. Lyons
461 us 95
Right of action = 1983 action, which also sought injunctive relief
Cause of action = plaintiff suffered chokehold from police officer during arrest
(chokehold tactic was part of LAPD custom and policy)
Plaintiff could win $$ damages, but couldn't get injunctive relief
what justiciability element was key here?
standing
no likelihood of future similar harm
"too speculative"

10-6-09
11th amendment:
"The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State."

Ex Parte Young
Young (Minnesota AG) was held in contempt by federal court in MN for attempts to
enforce allegedly unconstitutional law
Sovereign immunity is dependent on the remedy (can't seek retrospective money
damages)
Prospective (i.e. injunctive relief) claims - can be made against actors in official
capacity
Why should remedy make a difference in attempt to "pierce veil" of sovereign
immunity?
* suing state actor in official capacity is tantamount to suing the state itself
Court in Young: essentially strips Young of his state/official capacity due to
unconstitutionality of acts
It's a legal fiction
Personal capacity suit - only binds the person - doesn't bind the office
Official can be STATE actor for 14th amendment purposes, but PRIVATE actor for
purposes of 11th amendment
Ex Parte Young paradox
State sovereign immunity is different from qualified & absolute immunity
Qualified/Absolute immunity is a judge-made doctrine deriving from common law (to
protect judges, legislators, etc.)
(comes from legislative history of Section 1983)
State sovereign immunity is constitutionally based (11th amendment)
Look at CAPACITY and REMEDY when analyzing these cases

Pennhurst: court held fed court couldn't enjoin state of pennsylvania from action
under pendent jurisdiction
key distinction - actions in Pennhurst alleged to violate state law, not federal
(constitutional) law

* If a suit seeks prospective relief only, state can be held accountable for that

Seminole Tribe v. Florida

What was the substantive right at issue in this case?
Contract dispute between tribe and state
Authority derived from Indian Commerce Clause
and Indian Gaming Regulatory Act (which allowed states to negotiate with tribes re:
gaming)
passed to regulate gaming industry and effectively bring states in on the action
plaintiff Tribe alleged lack of "good faith" dealing on part of state
filed suit in federal court to compel State of Florida to re-negotiate; filed against
Governor as well
to get to the state, you have to sue a state official in official capacity
what's the problem with suing governor in official capacity?

"abrogation" of sovereign immunity - another way of getting around state sovereign

immunity
section 5 of 14th amendment gives congress power to create remedies for
violations, including against states
does congress have power to abrogate sovereign immunity in FEDERAL courts
under commerce clause power?
Supreme Court: no, congress doesn't have power to abrogate under commerce
clause power
Seminole tribe also argued that Gov was acting unconstitutionally (invoking Ex
Parte Young)
Court said "comprehensive remedial scheme" already existed
"comprehensive remedial scheme" can preempt Ex Parte Young argument

Bankruptcy cases - don't fall under state sovereign immunity ambit

states can be brought into cases and under court's jurisdiction
(Bankruptcy falls under Article I of constitution; giving Congress power)
bankruptcy cases not subject to Alden v Maine rule

Idaho v. Coeur d'Alene Tribe

Tribe sued state of Idaho for rights to to submerged land, which state claimed as its
own
Sued state officials in individual capacity for prospective relief;
court said the couldn't do it because states have rights to submerged land (Justice
Kennedy's opinion, relying on Hans v. Louisiana)
- This case bites another chunk out of Young doctrine

Verizon v. Public Service

- invoked telecommunications act of 1996
Verizon sued public service commission (a Maryland state agency) for violation of
the Act
Supreme Court: if plaintiff alleges violation of federal statutory law, OK to sue state
for injunctive relief
* Verizon, like Young, involved rights of corporations suing states, not individuals
if complaint alleges ongoing violation of federal law, specifically seeking prospective
forms of relief, suit may go forward

Frew v. Hawkins
supported Verizon; plaintiffs sought injunctive relief against state officials claiming
11th amendment immunity
enforceable because state actors entered into consent decree relying on federal
law;

States have a lot of power under 11th amendment sovereign immunity

Congressional power to abrogate sovereign immunity

by statute, must contain clear statement of congressional intent to override state
sovereign immunity
must be stated expressly within statutory language
Title VII does pass clear statement requirement
section 1983 does not pass clear-statement requirement
what congressional abrogation does - means you can sue state for damages for
retrospective relief
(has a big effect, which is why this is narrowly construed by supreme court)

Provided a statute passes "clear statement" test, congress can authorize plaintiffs
under section 5 of 14th amendment to bring suit against states
OK to sue for any type of damages
14th amendment "trumps" 11th amendment (since it was passed after 11th
amendment; subsequent amendments apply to earlier amendments as well as body
of original constitution)

Boerne v. Flores
conflict between Congress and Supreme Court; congress can remedy 14th
amendment rights, but can't alter substantive rights under Section 5 of 14th
amendment

discrimination against members of a suspect class can lead to suits against state
there must be "congruence" and "proportionality" of remedy to alleged 14th
amendment violation

Hibbs
FMLA was congruent and proportional to 14th amendment violations for sex
discrimination
congress could abrogate state sovereign immunity under FMLA

what is "congruent and proportional"? whatever supreme court says it is

does congress have power to abrogate state sovereign immunity in their own state
courts? No, under Alden

Does congress have power to abrogate sovereign immunity under Article 5 of 14th
amendment?

distinction from Alden is that it involved abrogation under Congress' Article 1 power,
not 14th amendment power

Most likely, congress still has power to abrogate sovereign immunity under Article 5
of 14th amendment
could be violation of supremacy clause for a state to argue otherwise
supreme court hasn't settled the issue

power to abrogate = Article 5/14th amendment + congruent/proportional remedy +

"clear statement" of intent to abrogate

10-13-09
Tax Injunction Act of 1937
district courts can't enjoin collection of taxes under state law where "plain, speedy,
and efficient" remedy is available in state courts
exhaustion requirement only applies if state remedy is plain, speedy, and efficient
Fair Assessment in Real Estate v. McNary
an important case - suit under 1983 to redress unconstitutional administration of
state property tax system
suit for damages, not injunctive relief (problem: can't sue state actor in official
capacity for damages)
- court saw around attempt to evade 11th amendment prohibitions and Tax
Injunction Act
comity - where federal and state courts are supposed to respect each other's
authority

Johnson Act of 1934

Anti-Injunction Act of 1793

(don't need to remember statute number 2283)
- no injunction proceedings in federal court over state court proceedings
- state court proceedings must already be "pending"
- state court proceedings are "pending" as long as state injunction stays in force

Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers

- Involved railroad workers union vs. railroad
1. railroad sought injunction in federal court to enjoin picketing by railroad workers
(denied on basis of federal labor law - NLRA)
2. railroad then sought injunction in state court to enjoin strikers, on basically same
grounds at the federal claim
3. Jacksonville Terminal case decided by U.S. Supreme Court, which is favorable to
the union
4. union tries to dissolve injunction in state court, citing Jacksonville Terminal (state
court denies, saying Jacksonville not controlling)
5. union then takes claim to federal court, seeking dissolution of injunction (Fed
District Court granted)
6. railroad appealed to supreme court, contesting union's claim that "necessary to
effectuate judgment" exception applied
7. supreme court held that the union's claim did not meet the Section 2283
exceptions

importance of Atlantic Coast Line - state courts have concurrent jurisdiction over
federal issues, so proper procedure is to appeal up through state system
union should have appealed to state appellate court, then state supreme court,
then U.S. supreme court

* could union have brought 1983 claim? where was the state action?

assuming union could have brought state law claims with federal claims, could it
have gone to both courts? no - claim preclusion

* default position is that proper remedy is to raise federal issues in state

court when there's pending state court litigation
(instead of running to federal court when state court litigation comes in)
* if you bark up the wrong tree, you could find yourself without a remedy

Mitchum v. Foster 407 U.S. 225

- involved Section 1983 claim
- sought to enjoin state court from prosecuting state nuisance law
- Section 1983 did not contain an express provision exempting it from anti-
injunction act
however, by authorizing suit in equity, creates exception to anti-injunction act
Court made Section 1983 vehicle for getting around anti-injunction act

Remember Rooker-Feldman doctrine - no lower federal court review of state court

decisions

Kline, et al. (Texarkana Board of Paving) v. Burke Construction Company

Where was the original case brought?
Federal district court (based on diversity)
- Kline brought claim in state court (with additional defendants which destroyed
complete diversity)
- So Kline's Arkansas case couldn't be removed
- State court suit was properly brought; so was the federal suit (not good for judicial
economy, but allowed under principles of federalism)
- what happens if one court reaches verdict before the other? depends on applicable
res judicata law and full faith & credit
- what if arkansas had its own preclusion law
* in rem exception - where it's necessary to federal court's jurisdiction, it's ok to
enjoin state suit involving property
other exceptions:
interpleader, habeus corpus, removal of civil action, bankruptcy

fed court can enjoin relitigation of issue/claim in state court, but only if state would
relitigate same issue under same law
(Chick Kam Choo, 486 us 140 - forum non conviens issue would not have been
precluded under Texas law - fed court could only enjoin choice of law issue)

Federal interference with state criminal prosecutions

Douglas v. City of Jeannette
involved ordinance directed against Jehovah's Witnesses
jehovah's witnesses sought preliminary injunction
if there's an adequate remedy at law (e.g., 1st amendment claim against state
prosecution), harder to enjoin

Dombrowski v. Pfister
involved state prosecution against NAACP protesters (generally used to harass and
cause needless litigation)
sheer multiplicity of suits created inadequate remedy at law
- led to flood of litigation against pending state prosecutions, which led to Younger
v. Harris

- these cases were decided under equitable restraint, not Anti-Injunction Act

Younger v. Harris
What is the right of action?
- 1983 suit alleging 1st and 14th amendment violations
- Younger was district attorney for county, not state (so no 11th amendment
problem)
What is the cause of action?
- Harris was arrested and indicted for violation of "criminal syndicalism act"
- was passing out literature and speaking against capitalism

what about the intervenors?

lacked standing to intervene in suit
fears of prosecution too "imaginary or speculative"
no significant risk of injury, so not good plaintiffs

harris was suing to enjoin criminal prosecution

anti-injunction act - why wasn't it raised in Dombrowski? because you can't enjoin
state courts
it was raised in this case, but court avoided ruling based on Section 2283

if statute was clearly unconstitutional, why can't Harris enjoin the DA from criminal
prosecution?
- Harris had opportunity to defend his rights in state court (adequate remedy at
state law; could have appealed through that system)
* what is the name of that doctrine?
"Equitable restraint" - when federal courts respect the state procedures re: trial
and appeal
- key theme to remember from Younger

"Comity" - another doctrine espoused in Younger - broader than "equitable

restraint" but narrower than "our federalism"
Comity is broad notion of proper respect for state functions and belief that states
should be left free to perform their functions without extensive
federal interference;

"Our Federalism" - this term originates in Younger; term of art created by the
court.
- not necessary for this case; probably added by court to make policy point
- could almost be considered dicta

Does Ex Parte Young survive the holding in Younger?

- Young was primarily 11th amendment case regarding state sovereign immunity
- Attorney general Young sued in official capacity
- there was no pending criminal prosecution in Young; for it to be fought, railroad
workers had to get themselves arrested to fight it.
- key distinction is existence of pending criminal prosecution; for Young to survive, it
must apply to injunctions that prevent "imminent" or "threatened" criminal
prosecutions

But how do you define "pending" prosecution?

Hicks v. Miranda
Was state prosecution "pending" at time federal case was initiated? (no, it was filed
a day later)
involved seizure of films from adult theater
judicial proceedings were begun to have film declared legally obscene
- theater owners and employees beat prosecutor to court, sought declaratory relief
re: constitutionality of obscenity law
1st ground of holding: theater owners' interests were already at stake in criminal
prosecution of its employees (even though they weren't a party in interest)
2nd ground of holding: for Younger v. Harris to apply, pending prosecution doesn't
have to exist on day suit is filed; where proceedings are begun while
federal case exists, but before any proceedings of substance on the merits in the
fed case, the criminal prosecution can't be enjoined - must be allowed
to run its course
"constructively pending" criminal prosecution
- allows state prosecutors to effectively "reverse remove" federal litigants to state
criminal court as long as they do it in time

what about filing for a TRO? Does that count as a proceeding of substance on the
merits of case, to bar "reverse removal" by state prosecutor?

Doran v. Salem Inn

involved topless bar corporations in New York
1983 suit filed in federal court to declare local ordinance invalid
topless bar that resumed topless activities sought preliminary injunction (was still
not decided)
state prosecution initiated
Court: fed case was still in "embryonic" stage, so Younger and Hicks rules applied
and state case retained preference
however, as to the two other bars which sought preliminary injunction, they were
not subject to "reverse removal"
law abiding bars could not have criminal prosecution pending, so they were able to
pursue preliminary injunctive relief
* key thing - supreme court wants to encourage law abiding behavior, so if they go
to fed court and seek TRO/PI and cease activity in question,
they might be able to prevent/enjoin the state prosecution in federal forum

Wooley v. Maynard
plaintiffs sought injunction to prevent future prosecutions of license plate ordinance
- fact that they'd been prosecuted in the past did not bar federal injunction
proceedings (contrast with Lyons)

Younger has been extended to certain types of civil proceedings

(Huffman v. Pursue involved nuisance-abatement proceeding)
middlesex county - involved state administrative proceeding (ARDC hearing in New
Jersey)

See Texaco v. Pennzoil - involved enforcement of state court judgment

Hawaii Housing Authority v. Midkiff 467 us 229

should Younger be extended to damages actions?

see McNary
11-10-09
HABEAS CORPUS
"you have the body"
28 usc 2241
28 usc 2254
Pattern of claims:
circuit court ---> state app court ---> state sup ct ---> fed dist ct ---> ct of appeals
---> us sup ct
direct review (thru state) then collateral review (by different sovereign system -
federal)
Habeus is not a complete dead letter; it remains an escape valve from state court
error
Brown v. Allen; essentially created modern habeas corpus, but was essentially
overruled by anti-terrorism/death penalty act of 1996
Distinction between "relitigation" and "res judicata"
Suspension clause - only congress has right to suspend writ of habeas corpus
Lincoln expropriated this power during civil war, tried to make it an article II power
modern habeas corpus is post-1996
US Sup Ct has original jurisdiction (theoretically) but they don't exercise it
usually kicked down to fed dist court
habeas corpus cases are more likely to be heard in death penalty cases
no constitutional right to counsel after trial court level

if case starts at federal district court level, defendant has right to appeal through us
supreme court, then seek collateral review via 28 USC 2255 (goes back to district
court level, usually same judge that heard case in first place).

28 usc 2254 - can't do federal habeas corpus for state law violations

Stone v. Powell
multiple respondents alleging 4th amendment violations
issue: whether state prisoners that had full and fair adjudication in state courts
could relitigate the 4th amendment claim in fed court on habeas review
Exclusionary rule - policy rationale is to deter unreasonable searches and seizures;
a judicially created remedy
Why couldn't defendants bring the 4th amendment claim on habeas corpus claim
since it was a constitutional argument?
Because they had opportunity to fully litigate the issue in state court system;
Deterrent effect is attenuated if 4th amendment review process goes all the way
through federal collateral review
This case rules out federal habeas review on 4th amendment exclusionary rule
issues
is the exclusionary rule really working?
is this the best way to vindicate 4th amendment rights?
is 1983 a better vehicle for addressing 4th amendment violations?

Jackson v. Virginia
Standard established: "no rational trier of fact could find guild beyond a reasonable
doubt"
appellate court being asked, on habeas, to second-guess a jury's decision (rarely
granted);
must find that no rational trier of fact could have found the same
*** remember for exam

Herrera v. Collins
*actual innocence is not a determinative issue in this case
defendant gathered evidence showing that he did not commit crime
actual innocence not litigable in and of itself (it's not a constitutional issue)
BUT it could be litigated on habeas on a due process argument

Teague v. Lane
Rule: new constitutional rules of law announced by supreme court are very rarely
retroactive for habeas purposes
e.g., Crawford v. Washington - doesn't apply retroactively to people w/ witness
confrontation issues
retroactivity rule only applies on collateral review, not on direct review
example:
defendant convicted of flag-burning in 1987, exhausts all of his appeals by the end
of 1988;
Texas v. Johnson gets decided in 1989, giving constitutional protection to flag-
burning;
can defendant try to fight case on habeas corpus? maybe
only time supreme court has applied exception was in Penry v. Lynaugh (re:
execution of mentally retarded)
execution of juveniles is probably retroactive for collateral review as well, under
new law regarding those cases

new rule = result was not dictated by precedent existing at the time defendant's
conviction became final

11-17-09
AEDPA - 1996
Terry Williams v. Taylor
What does it mean for a decision to be "contrary to" clearly established federal law?

Facts: defendant/claimant received death penalty in capital murder case; argued

that counsel didn't present full range of possible rebuttal evidence, etc.
Cause of Action: alleged errors at trial constituted inadequacy of counsel
Right of Action: 28 usc 2254 and 6th amendment
*effective assistance of counsel if a right under 6th amendment, and this claim is a
common source of habeas claims
this was first supreme court case interpreting AEDPA
What does "unreasonable" mean???
"Under 28 USCS 2254(d)(1)--which provides that a state prisoner's application for a
writ of habeas corpus shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless the adjudication of the
claim resulted in a decision that was contrary to or involved an unreasonable
application of clearly established federal law, as determined by the United States
Supreme Court--an unreasonable application of federal law is different from an
incorrect or erroneous application of federal law, where in 2254(d)(1), Congress
specifically used the word "unreasonable" and not a term like "erroneous" or
"incorrect;" under 2254(d)(1)'s "unreasonable application" clause, then, a federal
habeas corpus court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly; rather, that application must also
be unreasonable. (Stevens, Souter, Ginsburg, and Breyer, JJ., dissented from this
holding.)"

"Contrary to" = state court ruling that contradicts governing supreme court law
(precedent established in federal supreme court holdings), or state court decides
differently from US Supreme Court on materially indistinguishable facts (this wasn't
the case in Williams v. Taylor)
example: Crawford v. Washington (us supreme court) Drew Peterson case (new IL
hearsay law, being argued in IL courts) - involving out-of-court statements offered
for truth of matter asserted, where defendant doesn't have ability to cross-examine
witness giving statement
What if Peterson was convicted under new IL law, that potentially conflicts with
Crawford rule?
Are facts distinguishable, or "materially indistiguishable"?
Peterson facts may be materially indistinguishable from Crawford, and any verdict
against Peterson could be challenged under AEDPA/Williams v. Taylor rule

State courts have a lot of latitude under AEDPA - can't just be wrong, have to be
unreasonable, etc.
See Yarborough v. Alvarado

"Clearly established federal law, as determined by the Supreme Court of the United
States," means holdings, not dicta

28 U.S.C. 2244(d)
1. One-Year Statute of Limitations
runs from the latest of various tolling provisions:
a. date judgment became final
b. date when impediment to filing application created by state action in violation of
constitution or federal laws is removed (e.g., corrections officer impedes inmates
ability to file claim);
c. date on which constitutional right asserted was initially recognized by the
supreme court, and expressly made retroactively applicable to cases on collateral
review;
d. date on which factual predicate of claim/claims presented could have been
discovered through the exercise of due diligence (e.g., discovery of new evidence,
see Herrera v. Collins).
***Need to know these four statute of limitations provisions for final
2. time in which a properly filed application for state post-conviction or other
collateral review with respect to the pertinent judgment/claim is pending does not
count toward any period of limitation under this subsection (s.o.l. tolled by pending
post-conviction proceedings - once they become final, then the statute of limitations
kicks in)

28 USC 2244(b):
b-1: claim presented in second or successive habeas corpus application that was
presented in a prior application shall be dismissed (basically, res judicata)
b-2: Exceptions:
a. applicant shows that claim relies on new rule of con law made retroactive to
cases on collateral review by supreme court (e.g., Teague exception)
b(i) factual predicate for claim could not have been discovered previously through
exercise of due diligence;
b(ii) facts underlying claim, if proven, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable factfinder
would have found applicant guilty of the underlying offense (e.g., Jackson v.
Virginia)
(* hard to make a case under subsection B of this rule)

** we don't need to know all subsections of these statutes by number for exam -
just need to know how 2244 and 2254 work together for habeas purposes

28 USC 2254(d)(2) and (e)(1)

(deference to state court factfinding)
See handout

Evidentiary hearings in habeas cases

28 USC 2254 (e)(2)
Federal courts reluctant to hold evidentiary hearing of habeas claim unless:
- claim relies on new rule of con law;
- factual predicate that could not have been previously discovered through exercise
of due diligence;
- facts underlying claim would be sufficient to establish ... that no reasonable
factfinder would have found the applicant guilty of the underlying offense

* Before bringing federal habeas corpus action, a person in state custody must
exhaust all currently available state remedies
See 28 USC 2254(b)(1)

Exhaustion of state remedies is a matter of convenience for courts; federal courts

can hear and dispose of a habeas case even if it hasn't gone all the way through
state system

Mixed petitions:
federal courts now have limited discretion to stay and hold in abeyance a state
prisoner's habeas petition if it contains unexhausted as well as exhausted claims.
SEE HANDOUT
exhaustion requirement applies even to clear errors (such as Gideon violations)
exhaustion of analogous state constitutional rights is not tantamount to exhaustion
of federal constitutional rights - habeas petitioner must alert state courts that they
are asserting a federal constitutional right

Custody:
Test is whether a person is subject to restraints not shared by the public generally.
Must be in "custody" to use federal habeas corpus to mount a collateral attack on
state court judgments
Custody does not just pertain to actual imprisonment; extends to parolees,
convicted defendants released after sentencing but prior to incarceration, etc.

Procedural Default:

Wainwright v. Sykes
Facts:
Cause of Action: Criminal defendant made inculpatory statements after being
read his Miranda rights; did not object to admission of statements at trial; appealed
through state court system unsuccessfully, then raised habeas claim in federal
district court in Florida; Federal District court held in his favor, supreme court
reversed and remanded
Right of Action: Federal habeas action asserting Miranda/5th amendment rights
against self-incrimination
During respondent's trial for murder, inculpatory statements made by him to police
officers were admitted into evidence. No challenge was made on the ground that
respondent had not understood warnings read to him pursuant to Miranda v.
Arizona, 384 U. S. 436; nor did the trial judge sua sponte question their admissibility
or hold a fact finding hearing. Respondent, who was convicted, did not challenge
the admissibility of the statements on appeal, though later he did so, unavailingly,
in a motion to vacate the conviction and in state habeas corpus petitions. He then
brought this federal habeas corpus action under 28 U. S. C. § 2254, asserting the
inadmissibility of his statements by reason of his lack of understanding of the
Miranda warnings. The District Court ruled that under Jackson v.Denno, 378 U.S.
368, respondent had a right to a hearing in the state court on the voluntariness of
the statements, and that he had not lost that right by failing to assert his claim at
trial or on appeal. The Court of Appeals agreed that respondent was entitled to a
Jackson v. Denno hearing and ruled that respondent's failure to comply with
Florida's procedural "contemporaneous objection rule" (which, except as specified,
requires a defendant to make a motion to suppress evidence prior to trial) would
not bar review of the suppression claim unless the right to object was deliberately
bypassed for tactical reasons. Held: Respondent's failure to make timely
objection under the Florida contemporaneous-objection rule to the
admission of his inculpatory statements, absent a showing of cause for
the noncompliance and some showing of actual prejudice, bars federal
habeas corpus review of his Miranda claim. Davis v.United States, 411 U.S.
233; Francis v.Henderson, 425 U.S. 536. Pp. 77-91.
A rule which, as applied to a state criminal proceeding in a state having a
"contemporaneous objection" rule requiring objection to admission of a criminal
defendant's confession into evidence either before or at the time of the state
criminal trial, bars review in a federal habeas corpus proceeding of any claim based
on the admission of a confession not objected to in conformity with such a rule,
absent a showing of cause for the noncompliance and some showing of actual
prejudice resulting from the alleged constitutional violation, affords an adequate
guarantee, because of its "cause" and "prejudice" exception, that the rule will not
prevent a federal habeas corpus court from adjudicating for the first time the
federal constitutional claim of a defendant who, in the absence of such an
adjudication, will be the victim of a miscarriage of justice.

11-24-09
Procedural default in Habeas cases
Failure to assert federal claim in manner prescribed by state law will prevent him
from obtaining federal habeas relief unless:
a. procedural default not obstacle to direct/collateral review within state system
b. state procedures didn't afford prisoner full and fair opportunity to litigate fed
issue, or
c. prisoner can show good cause for noncompliance and can prove that violation of
federal rights caused actual and substantial prejudice

know difference between waiver and forfeiture - waiver = known relinquishment of

right; forfeit = give up by failing to raise
(see U.S. v. Olano)
Wainwright v. Sykes
Case overruled Fay v. Noia (under Fay, must have shown deliberate choice to
bypass state procedure)
"Deliberate bypass" of rights not the standard anymore

Is there any merit to the idea of "sandbagging" an issue such as a suppression

motion to try and bring up later on appeal?
Not really. Runs risk of forfeiting issue for appeal and habeas
Rehnquists allusion to "sandbagging" may have been empty talk as pretext for
overruling Fay

After Wainwright, new standard is "cause and prejudice"

must show good cause for noncompliance + actual/substantial prejudice

What is "cause"?
- Futility in raising objection = no
- Novelty of constitutional claim = yes, but new law must fit within Teague
exceptions (e.g., death penalty for juveniles, mentally retarded)
- Inadvertence of counsel = no
- Ineffectiveness of counsel = yes (*but failure to timely raise ineffective assistance
can be its own procedural default)

External impediment as cause

Amadeo v. Zant (extreme case of prosecutors collaborating with jury commissioners
to restrict blacks on juries)
Strickler v. Greene (failure to disclose exculpatory information by prosecutor's office

Actual Innocence
Murray v. Carrier - in extraordinary case, where constitutional violation has probably
resulted in conviction of the actually innocent, habeas court may grant writ in
absence of cause for procedural default (supreme court has never found a case
fitting this exception, however)

Syllabus 7
Supreme court authority to review state court judgments (*this stuff will be
on exam)
28 USC 1257
if there's a federal issue lurking in an appeal, but outcome doesn't depend on it
(hinges more on state issues), that might divest court of jurisdiction

Martin v. Hunter's Lessee

involved land dispute stemming from Treaty of Paris - VA court said state law issue
ruled, US Ct said it had power to resolve cases involving treaties
* what if issue of whether treaty applies or not turns on an issue of STATE law??
- once a fed court has jurisdiction over case due to federal issues (has its "hook" in
the case), it can resolve all other issues in case; so even if interpretation of state
law is involved, US Supreme court may be able to delve into those issues when
necessary to decide whole case (including federal issues)
* similar to supplemental jurisdiction
supreme court doesn't have to exercise jurisdiction when state issues are primarily
involved.

Murdock v. Memphis
involved deed of land between private individual and City of Memphis/US under
specific conditions
held reversionary interest in case Memphis changed purpose of deeded land
plaintiff's case:
"expressio unius est exclusio alterius" - the expression of one is the exclusion of the
other
in this case, the other way around - omission of certain statutory clause opened up
entire case for review, including issues of state law
Supreme Court said state court cases revolving around state law will not be subject
to supreme court review just because of related federal statutory issue
* supreme court might have been doing legal gymnastics - this was a time when
supreme court was wrangling with serious federalism issues and changed
relationship between federal and state governments.

*key is whether case really revolves around federal or state issues

Indiana ex rel Anderson v. Brand

Supreme Court: wouldn't be bound by Indiana court's interpretation of contract law;
sup court would review Indiana contract law itself - IN court's opinion
notwithstanding
establishes principle that if state law issue is necessary to decision of federal issue
supreme court is not like a fed district court bound by ERIE, when interpretation of
federal law is predicate to interpretation of state law
e.g., deprivation of property without due process of law - sup ct will interpret state
property law since it is tied up with constitutional deprivation issue
(e.g., if in Parratt v. Taylor, NEB law said hobby kits were not property, then us sup
ct could use that in addressing constitutional issue)

BUSH v. GORE 531 US 98

main event was 2nd appeal to florida supreme court - main issue was whether to
continue ballot counting in 2 counties;
appeal to florida sup court invoked state statutory language
FL Sup Ct interprets statutory language as "to determine clear intent of the voter"
and remands to the counties (on 4-3 vote)
* is that an objective standard? No
Federal issue was equal protection challenge
*fundamental right (voting) in question (some counties' votes to be recounted but
not others)
Bush: recount ordered by FL supreme court threatened fundamental right and
deserved strict scrutiny

* did an adequate independent state law remedy (statute re: clear intent of voter)
exist in this case

Did Supreme Court have jurisdiction to take this case?

Did FL supreme court decision misinterpret state statutory law?
Did Supreme court have beef with FL court's interpretation of state law, or with the
way interpretation of statute could violate US constitution/right to vote?

Rehnquist used civil rights cases against liberals in this case

Should this have been a political question case?

Could have been
But there's a difference between a "political case" and a political question, in terms
of justiciability

Michigan v. Long 463 US 1032

Default presumption is that state court relied on federal con law rather than state
law grounds, when court opinion is ambiguous; unless state court makes "plain
statement" that state-court decision rests on adequate and independent state law
grounds)
e.g., Iowa supreme court decision on gay marriage rested on state constitutional
law, not US constitution, so us supreme court couldn't take it up on certiorari

12-1-09
final exam:
32 questions, 90 minutes
closed book
will cover every major topic area we've covered
know bolded cases by name (at least the important ones), and know the principles
set forth within those cases
read every question and all qualifiers carefully; questions will be deliberately tricky

Prohibition against supreme court review on state-law grounds

Types of state law grounds:
- Substantive
- Procedural
Independence Analysis:
- using labels applied by state court, separate questions into state and federal
issues
* note: supreme court has jurisdiction to reclassify labels applied by other courts

a. Simulation model
state law operates of its own force and simulates federal law, which also operates of
its own force (visualize two parallel lines containing their sets of laws)
e.g., due process clauses of state and federal constitutions
- federal law has only persuasive effect on state ct interpretation of state law
---->state law is independent of federal law

b. Mirror-image model
State law operates of its own force and MIMICS federal law which also operates of
its own force (e.g., right not to incriminate self/right against self-incrimination -
language not identical but states same thing)
State law lacks any distinctive content, however, and thus collapses into federal law
Example: Illinois follows "lockstep" doctrine

c. Mixed Question Model

imagine Venn diagram with state law negligence per se as one circle, with federal
"safety appliance act" as a bubble within the circle - violation of that would
constitute negligence per se under state law; but no private right of action to sue in
federal court for violation of that statute, unless state law incorporates it into its
negligence per se doctrine and allowed a right of action for the violation.

just because right of action exists only by virtue of state law, that does not mean
there's not a federal question and that it's only a state law issue

don't think that Sec. 1331 is co-extensive with Supreme Court jurisdiction - Sup Ct
appellate jurisdiction is much broader than federal district court jurisdiction

when case contains genuine state questions and genuine federal questions, state
law is not independent of federal law

d. Wholly-gratuitous-incorporation model
e.g., federal evidence codes exist on their own, and even if they are incorporated
within state evidence codes, state codes are their own law - no federal issues for
courts to review
wholly gratuitous means = states don't HAVE to incorporate federal interpretations
of rules - they do so gratuitously/voluntarily and it becomes state's own law

* Distinctions between these models won't be tested on closely; they are too fine to
really test on; just need to understand how state law can diverge from federal law,
when it can or cannot do so, etc.
* not like abstention doctrines, which will be tested on

Adequacy analysis
- assuming state-law question is truly independent of the federal question, is the
state-law ground ADEQUATE to support the result?
i.e., even if state court had reached different conclusion regarding the federal
question, would loser still have lost?

State-law predicate for a federal right

When US Sup Ct examines state court's interpretation of a state-law predicate,
Court applies "clearly erroneous" standard - court will merely ask whether the state
court's ruling had a fair and substantial basis in prior law
standards of review:
issues of fact = clear error
issues of law = de novo
issues of evidence = abuse of discretion

bottom line = US Supreme Court has wide jurisdiction - can generally take 70-80%
of all cases if it wants to; see Bush v. Gore - supreme court can find ways to make
things a federal issue