Federal Courts Outline

Table of ContentsJUSTICIABILITY...................................................................................................................................................................... 3

ADVISORY OPINIONS..................................................................................................................................................................................... 3FINALITY AND EXTRAJUDICIAL FUNCTIONS..............................................................................................................................................4STANDING TO SUE......................................................................................................................................................................................... 5MOOTNESS.................................................................................................................................................................................................... 10POLITICAL QUESTION.................................................................................................................................................................................11

CONGRESSIONAL CONTROL OF JURISDICTION......................................................................................................... 12CONGRESS’S POWER OVER JURISDICTION...............................................................................................................................................12CONTROL OF STATE JURISDICTION.......................................................................................................................................................... 15

THE APPLICABLE LAW...................................................................................................................................................... 17STATE LAW IN FEDERAL COURTS............................................................................................................................................................17FEDERAL COMMON LAW........................................................................................................................................................................... 19RIGHTS OF ACTION..................................................................................................................................................................................... 21

FEDERAL JURISDICTION................................................................................................................................................... 22JUDICIAL POWER UNDER ARTICLE III....................................................................................................................................................22STATUTORY JURISDICTION.........................................................................................................................................................................23SUPPLEMENTAL JURISDICTION................................................................................................................................................................. 25

LAWSUITS AGAINST GOVERNMENTS........................................................................................................................... 26SUITS AGAINST THE FEDERAL GOVERNMENT.......................................................................................................................................26SUITS AGAINST STATES............................................................................................................................................................................. 28

ABSTENTION........................................................................................................................................................................ 31THE ANTI-INJUNCTION ACT......................................................................................................................................................................32PULLMAN ABSTENTION............................................................................................................................................................................. 33YOUNGER ABSTENTION..............................................................................................................................................................................34

HABEAS CORPUS................................................................................................................................................................. 35EXTRAJUDICIAL DETENTION..................................................................................................................................................................... 36THE BASIC RULE AND FACTUAL ISSUES.................................................................................................................................................36COGNIZABLE CLAIMS.................................................................................................................................................................................. 38NEW RULES AND STANDARD OF REVIEW..............................................................................................................................................39PROCEDURALLY DEFAULTED CLAIMS..................................................................................................................................................... 40

The Judicial Function1

The Nature of the Judicial Function (Private v. Public Rights)1) Where there is a legal right there is a legal remedy

a) Marbury v. Madison - Essence of civil liberty exists in right of an individual to claim a remedy to wrongs

b) if right is violated, and legal system hasn’t clearly codified what the remedy is, the courts will create onei) Marbury v. Madison - the judicial remedy of mandamus is always available (every

remedy is a judicial one. If there’s no remedy, they’ll make one up.)2) It’s emphatically the court’s duty is to say what the law is

a) The job of the court is to decide cases and controversies; not to uphold the Constitution, etc.

b) However, since it is the court’s job to decide questions under the Constitution, it must “of necessity expound and interpret that rule.”i) once it is deciding, the court is authorized to do everything necessary to decide

the case (involved passing on Qs of law, interpreting the Constitution, etc.)ii) Justifies constitutional review

3) Retroactivity in judicial decision makinga) Changes in rules of judicial decision-making must be applied retroactively (Harper v.

Virginia Dep’t of Taxation)i) Applies to civil and criminal rules

b) Selective prospectivity is forbiddeni) Applying the new rule only to this case but not others pending would be making

impermissible choices like a legislaturec) Pure prospectivity is forbidden

i) Applying a new rule only to future cases and not the case of decision and pending cases would defeat point of bringing suit, would be legislature-like

4) The Supreme Court’s Certiorari Powera) “Review of a writ of certiorari is not a matter of right, but of judicial discretion. A

petition for a writ of certiorari will be granted only for compelling reasons, including: Court of Appeals split; state supreme court split; state court or Appeals Court has decided important federal question that should be decided by the Supreme Court; and rarely when asserted error consists of erroneous fact findings of application of law.”i) More consistent with a “public view”: Court gets to decide if it’s important; this is

not deciding on case-by-case basis5) Constitutional Interpretations Outside the Courts

a) Once the Supreme Court rules, contrary interpretations are not allowed (Cooper v. Aaron)

6) Public Rights v. Private Rights views:a) Private rights

i) The sole function of the federal courts is to decide particular cases about alleged violations of a particular plaintiff’s rights

ii) Holding statutes unconstitutional, ordering government officials to cease unlawful behavior, and other rulings of significance to society that impact others aside from the parties at bar are incidental to the courts’ case-deciding function

b) Public rightsi) The function of federal courts goes beyond simply deciding particular cases

between particular partiesii) Federal courts have special responsibilities that aren’t incidental to their case-

deciding function, but are themselves justification for judicial action, such as:(1) Interpreting and enforcing the Constitution and laws

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(2) Ensuring that federal and state governments behave lawfully7) SC granting Certiorari:

a) Matter of judicial discretionb) Granted only for compelling reasons:

i) Circuit courts have split on the same matterii) A circuit court has decided an important federal question in a way that conflicts

with a decision by a state court of last resort iii) A circuit court has so far departed from the usual course of judicial proceedings

that the Court should exercise supervisory poweriv) A state court of last resort has decided an important federal question in a way

that conflicts with the decision of another state court of last resort or federal court of appeals

v) A state court of last resort or federal court of appeals has decided an important question of federal law that hasn’t been (or should be) settled by the Supreme Court, or has decided a case in a way that conflicts with relevant Court decisions

c) This reflects a public rights view – the Supreme Court only decides the important cases, as opposed to all cases that could potentially come before it

d) SC Rule 46 - If the parties both ask for dismissal, it’s granted (private rights view)

Justiciability

Advisory Opinions8) Rule: The Courts do not issue advisory opinions (Letter from C.J. Jay to President

Washington)a) Exception: federal courts not barred from reviewing state action to determine its

constitutionalityi) SC could review constitutionality of Arkansaws in failing to comply with Brown v.

Board (Cooper v. Aaron)9) Policy (why no advisory opinions?)

a) Instrumentalist answers:i) Beneficial for the judges to have all the arguments in front of them

(1) (could appt. counsel to argue each side, but doctrinal reasons keep us from doing this)

ii) “Council of revision’ argument: proposal that after Congress passed a bill, it would go to counsel which could reject the bill, later became the veto power(1) It’s rejection is evidence that no one wanted courts to issue advisory opinions(2) BUT this may not be a good point; Council of Revision could reject for any

reason, whereas the Court must reject for Constitutional reasons onlyb) Doctrinal answers:

i) The Constitution creates a case or controversy requirementii) Inherent in the nature of judicial power is not to issue advisory opinions

(1) However, this was NOT the rule at English courts (M’Naughten’s Case)(2) English judges can issue advisory opinions, as can judges in Canada, Germany,

ICJ and some US states (MA, FL)c) Other answers:

i) Three branches intended to be checks on each otherii) Court of last resort – may decide questions of law if they come up in cases, but

only then. (Private rights view)iii) Constitutional grant of power to President to call on heads of departments for

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opinions seems to be purposely and expressly given to the executive d) NOTE: Declaratory Judgment NOT an advisory opinion:

i) Declaratory Judgment Act (28 U.S.C. § 2201)ii) Willing v. Chicago Auditorium Association (1928) (Brandeis)

(1) Willing was unsure if his lease permitted him to replace a building it built on its land with a more modern building, and sued for a declaration that he wouldn’t be liable to the Association for doing so

(2) This case did not present a case or controversy under Article IIIiii) Aetna Life Insurance Co. v. Haworth (1937) (Hughes)

(1) Affirmed the constitutionality of the Declaratory Judgment Act(2) The practice of bringing cases solely for legal or equitable relief in 1789 isn’t

the only possible way to present a case or controversy to the courts under Article III

iv) Dicta does not constitute an advisory opinion(1) Monell v. Department of Social Services of the City of New York (1978)

(Brennan)(a) Employees of New York City sought relief under § 1983 on grounds that the

city adopted official policies that violated their rights (b) The Court held that § 1983 permits suit against municipalities, then stated

at length that it wouldn’t have permitted the suit if it hadn’t involved an official city policy or established city custom

(c) Stevens, Concurring – the discussion of official city policy and custom was advisory, and not needed to explain the Court’s opinion

Finality and Extrajudicial Functions10) Rule: Statutes which would render court decisions less than final are invalid

(Hayburn’s Case, 1792)a) Actions which are reviewable by executive officials are not really judicial actions

i) Act allowed veterans to claim pensions by making certain showings to a judge, but made these reviewable by secretary of War, therefore unconstitutional (Hayburn’s case)

ii) Case which would have required Treasury Secretary to submit an appropriation to effectuate a judgment was not a proper judicial case (Gordon v. United States (1864))(1) No more treasury appropriation, no more problem (United States v. Jones)

b) When the judgments of judges are subject to control and review by the legislature they are no longer judicial (separation of powers)

11) Rule: The executive and legislative branches have no power of review over the judicial acts or opinions of a courta) Legislation mandating retroactive review of final decisions violates constitution

i) Statute retroactively lengthening statute of limitations for securities violations was invalid (Plaut v. Spendthrift Farm, Inc. (1995))

12) Rule: the federal courts may not act extrajudiciallya) Statutes which command the court to take extrajudicial action are invalidb) Exception: Judges may act extrajudicially IF

i) They are acting in their individual capacity(1) Distinction: does the statute command a “judge” or the “court”

ii) A particular extrajudicial assignment wouldn’t undermine the integrity of the court(1) Extradition proceedings are fine (Lo Duca v. United States)

iii) The extrajudicial role is optional – judges may simply volunteerc) Common application: extradition commissioners

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i) §3184 vests judges (individuals) with the power to act extrajudicially13) NOTE: “Incompatibility clause” of Constitution prevents members of congress from

serving in judicial or executive rolesa) Clause does NOT apply to judges or executive officials – they can cross over

Standing to Sue14) Doctrinal Foundations

a) Doctrinal arguments:i) “Case and Controversy” requirement of Constitution (Allen v. Wright)ii) separation of powers

(1) Courts may not restrict or restrain the actions of congress when not necessary to decide a case (Frothingham v. Mellon)

(2) Province of legislature to make the laws(3) Some matters better left to the political process (Flast v. Cohen)

b) Instrumental arguments:i) Not requiring standing would “open the floodgates” to too many lawsuits

(Frothingham v. Mellon)ii) We prefer that the legislature has incentives to get the law rightiii) Actual injury insures robust argument on each side

(1) Important for remedy and to ensure no advisory opinions(2) Establishment Clause of constitution is important enough to ensure robust

litigation (Flast v. Cohen)(3) BUT there is no guarantee that those with actual injury will litigate more

aggressively or argue more persuasivelyc) Policy:

i) Pro-restrictive standingii) Anti-restrictive standing

d) Judge Fletcher: standing should go to the meritsi) Should depend on whether statutory or constitutional claim is raised

(1) Congress has duty to define standing for statutory issuesii) Proposed test:

(1) What law is being violated?(a) Straightforward – where is the right coming from?

(2) What is that law trying to achieve?(a) The incompatability clause gives general rights, therefore anyone should be

able to sue on it (Schlesinger v. Reservists)(b) The right to protect national parks from development is similar to nuisance,

should grant users of park legal rights (Sierra Club) e) O’Connor in Allen v. Wright (1984):

i) Standing embraces judicially self-imposed limits on the exercise of federal judicial power

ii) Standing requires that a plaintiff allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief

iii) An injury must be distinct and palpable, not abstract, conjectural, or hypotheticaliv) The standing inquiry requires careful judicial examination of a complaint to

ascertain if the particular plaintiff is entitled to adjudication of the claim assertedv) The standing inquiry must be answered in reference to:

(1) The Article III notion that federal courts exercise power only as a necessity, and only when adjudication is consistent with a system of separation of powers

(2) Whether the dispute is one traditionally thought to be capable of resolution

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through the judicial process15) Procedural notes:

a) The standing inquiry focuses on the plaintiff, not the issues sought to be adjudicated (Simon v. Easstern Kentucky Welfare Rights)

b) Standing is judged differently for each remedy (and each claim?) see infra16) Constitutional Injury Requirements:

a) Old test: injury requires invasion of legal rights (Tennessee Electric v. TVA)i) Rights are those which existed at common law: property, contract, tort, or created

by statuteb) Modern test (3+ parts):

i) Injury in fact:(1) Test: injury must be

(a) Concrete and particularized(b) Actual or imminent, not conjectural or hypothetical

(2) “a party must show not only that a statute is invalid, but also that he sustained or is immediately in danger of sustaining a direct injury from its enforcement” (Frothingham)(a) Ideological or political interest is NOT enough

(i) Disney was granted a bid to construct and operate a ski resort, and a 20-mile road leading to the resort, in the Mineral King Valley in Sequoia National Park, Sierra Club sued for declaratory judgment under the APA as a corporation with a special interest in the conservation of nature, SC says this is not cognizable injury (Sierra Club v. Morton)1. Dissent (Douglas): inanimate object should have standing

(b) Competitive business injury IS enough(i) ADPSO, which sells data processing services to businesses, sued Camp,

Comptroller of the Currency, to challenge a ruling making data processing services available to banks, SC says this is sufficient (ADPSO v. Camp)

(3) Probability of injury:(a) Test: To have standing, a plaintiff who hasn’t already suffered an injury

must show the threatened injury is certainly impending(i) Plaintiffs challenged the 2008 amendments to FISA, which authorize the

federal government to surveill aliens abroad, on grounds that they communicated with foreigners likely to be targets of such surveillance and their calls would likely be intercepted, SC says too speculative (Clapper v. Amnesty International)

(4) Generalized grievances are NOT injuries (arguably a prudential test)(a) Generalized grievances:

(i) Taxpayers have standing when they can show sufficient nexus indicating…1. The status and type of legislative enactment, as opposed to

incidental expenditure of funds in administering a lawa. Insufficient – allegation that tax exemptions for transferring

property to sectarian schools violated the establishment clause was rooted not in congress’s exercise of the tax and spend power but in an agency’s decision to transfer federal property (Valley Forge Christian College v. Americans United for Separation of Church and State)

2. The status and precise nature of the constitutional infringement alleged (i.e., that the challenged law exceeds limitations imposed on the exercise of taxing and spending power, not just that an

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enactment is generally beyond Congress’s taxing and spending power)a. Insufficient - Taxpayer challenge to the Maternity Act, which

provided money to states should they accept and comply with its provisions, challenged under 10th amendment coercion of state sovereignty grounds, was generalized grievance (Frothingham v. Mellon)

b. Sufficient - Petitioner taxpayers filed suit to enjoin allegedly unconstitutional expenditure of federal funds to finance instruction in religious schools (Flast v. Cohen)

(ii) Information-seekers:1. Right to know expenditures of the CIA is generalized (US v.

Richardson)2. FECA requires every PAC to file reports with the FEC listing receipts,

expenditures, and donors who have contributed more than $200 per year, confers right to know this info to citizens (FEC v. Akins)

(iii)Right to restrict congressmen from serving in military (incompatibility clause) is insufficient (Schlesinger v. Reservists Committee to stop the war)

(iv) alleging that insufficient denial of tax-exempt status to racially discriminatory private schools interferes with their children’s ability to receive an education in public schools was generalized grievance (Allen v. Wright)

(b) Exception: Generalized grievances are ok to vindicate fundamental rights(i) Interest in Establishment Clause may be sufficient (Flast v. Cohen)

(c) PROF: this may make more sense in prudential column(5) Organizational standing:

(a) Organizations must show that some member actually would be injured (Sierra Club v. Morton)

(b) Environmental organizations challenged a decision by the U.S. Forest Service to exempt certain land management decisions from allegedly mandatory procedures, alleged that “thousands of members regularly used national forests”, SC denies standing because specific members who will be harmed are not identified (Summers v. Earth Island Institute)

ii) Causation requirement:(1) Rule: the Case or Controversy Clause requires federal plaintiffs to allege a

threatened or actual injury that “fairly can be traced” to the challenged action of the defendant, not independent action of an unnamed third party(a) Government’s granting of tax status to hospital did not cause indigent

plaintiffs to be denied care (Simon v. KY Welfare Rights)iii) Redressability requirement:

(1) Rule: plaintiff’s grievance must be likely to be redressed by a favorable decision(a) Redressability found:

(i) Revoking special privilage of women to get SS benefits when not dependant WOULD redress injury of male suing under Equal Protection Clause (Heckler v. Mathews)1. Injury was that he was not being equally protected

(b) Redressability not found:(i) Revoking tax exemption of discriminatory private schools would not

necessarily lead to change in school policies or change behavior of white parents (Allen v. Wright)

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(ii) Changing of government’s policy in granting tax-exempt status was too unlikely to cause hospital to accept plaintiffs as patients (Simon v. KY Welfare Rights)

(iii)Conviction of father for failing to pay child support would not necessarily lead to him paying it (Linda RS v. Richard D)1. He could just go to jail, ect.

(iv) Invalidation of ordinance requiring single family homes would not necessarily lead to indigent plaintiffs acquiring affordable housing (Warth v. Seldin)

(c) Decisions of prosecuting authorities:(i) Citizens lack standing to contest the policies of prosecuting authority

when they themselves are neither prosecuted nor threatened with prosecution

iv) Policy:(1) When the government is making a reasonable interpretation of a law, the

courts are hesitant to upset it(a) Particularly when the interpretation might not be cause of plaintiff’s injury

(2) Courts don’t want to take away traditional prosecutorial discretion of the government

v) NOTE: re-characterizing injury can completely change standing(1) If Heckler was asking for money, he wouldn’t have had a case

17) Prudential standing requirements:a) Rule: parties can’t litigate another person’s legal rights

i) Exception: Third Party Standing:(1) Third parties generally do not have standing to sue for those who have an

actual injury(a) Maryland citizens did not have standing to sue under First Amendment for

defendants who were criminally prosecuted for selling alcohol on Sundays (McGowan v. Maryland)

(2) Requirements for Third Party Standing (3-part test):(a) Relationship of litigant to the person whose rights are being asserted

(i) Vendor-vendee (alcohol vendor) relationship may be sufficient (Craig v. Boren)

(b) Ability of person to advance his own rights(i) When affected party is not party to racial covenant, party to contract

may enforce their rights (Barrows v. Jackson)(c) Impact of the litigation on 3P interests(d) Other guarantees of effective advocacy

(i) When contract will be enforced against the plaintiff, she may bring action on behalf of racial minority (Craig v. Boren)

(3) NOTE: third party must still have some injury from the challenged actions, just need not be as severe as standing normally requires

(4) No standing to sue for violations of Constitutional rights by private parties(a) However, may have standing to sue government officials even if the statute

could potentially be applied to private parties (US v. Raines)(b) The threat of government enforcement of an unconstitutional private

contract is enough to confer standing (Craig v. Boren)(5) Special rule conferring standing in First Amendment Claims

(a) Because unconstitutional speech statutes might discourage speech and thus prevent an actual injury for a challenge, there is no need to show personal injury

(b) Threat that statute banning “opprobrious” language would chill future

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speech was enough to grant standing to defendant whos speech was not constitutionally protected (Gooding v. Wilson)

(6) Third party standing situations:(a) Law is unconstitutional as applied, but only because it violated 3P’s rights

(Craig) – OK!(b) (2A) Law is constitutional as applied, but could violate constitutional rights

in some other cases (Raines) – NOT OK!(c) (2B) Law is constitutional as applied, but could violate constitutional rights

in some other cases – and is about Free Speech (Gooding) – OK!b) Rule: plaintiff must be within law’s “Zone of Interests”:

i) “Zone of interest” comes from §702 of the APA (Clarke v. Securities Industry Ass’n)(1) Whenever federal gov’t does anything, you are entitled to judicial review as

long as you are adversely affected or aggrieved (injury) within the meaning of the statute (zone of interest)

ii) Congress must have intended to protect class plaintiff is withiniii) Two-part test:

(1) What interests was congress protecting?(a) Goal of statute establishing Postal Service monopoly was to protect postal

revenues (Air Courier Conference v. APWU)(b) Goal of Federal Credit Union Act was to limit the market of the credit union

(National Credit Union v. First National Bank)(2) Does plaintiff possess those interests?

(a) Statute defining Postal Service’s monopoly on mail service was not intended to protect the interests of postal workers themselves (Air Courier Conference v. APWU)

(b) Sharing the “interests” of the intended group may be enough(i) Commercial banks’ shared interest in limiting the markets of Federal

Credit Unions is sufficient for “zone” test (National Credit Union v. First National Bank)

iv) Reconciling the Court’s holdings on “zone of interests”(1) Cynical theory:

(a) Business interests usually have standing(b) Advocacy organizations (liberal ones) usually do not

(2) Principled theory:(a) Plaintiff must be more than an “incidental” beneficiary

(i) Businesses have a financial interest that is concrete and easy to understand1. In Haven Realty, advocacy group made its living supporting racial

plaintiffs(ii) Advocacy organizations have less concrete interest, would be too hard

to know where to draw the line18) Congressional Control of Standing and Remedies:

a) Rule: congress may ONLY dispense with prudential standing requirementsi) Constitutional standing requirements are constitutionally mandatedii) Congress can’t instruct court to hear case when plaintiff isn’t injured

b) Rule: congress can create standing by passing laws creating legal rightsi) Congress must explicitly identify what the injury is in the statute to confer

standing by statute (1) Sufficiently explicit:

(a) Stating that anyone has standing to enforce right to PAC information is sufficient (FEC v. Atkins)

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(b) Right to all “persons” to truthful information about available housing is sufficient for tester who is the object of misrepresentation (Havens Realty Corp. v. Coleman)

(2) Insufficiently explicit:(a) Requiring a specific administrative process does not create generalized

standing to see that it is adhered to (Lujan v. Defenders of Wildlife)c) Question: is there an outer limit on Congress’s ability to statutorily grant standing?

i) Lujan majority – Yes(1) Congress cannot confer rights when it would be a “generalized grievance”(2) There should be no distinction between constitutional and statutory claims

(Scalia dissent in Atkins)ii) Atkins majority – No

(1) Congress can always confer standing if they do it with sufficient specificity19) Particular Remedies:

a) Standing judged differently for each remedy soughti) Forward-looking remedies (injunction) require proof of forward-looking injury

(1) Risk of injury is generally not an injury in itself (Public Citizen)(2) Plaintiff is unlikely to suffer another illegal chokehold by police department,

therefore no standing to sue for injunction (City of LA v. Lyons)(a) To get an injunction, Lyons had to show he would

(i) have another encounter with the officers, (ii) that all officers always place citizens they encounter in chokeholds, or (iii)that Los Angeles ordered or authorized this behavior

(3) civil penalties may be available because of their deterrent effect(a) Friends sued Laidlaw for discharging mercury into the North Tyger River in

amounts exceeding the levels fixed in its permit issued under the Clean Water Act, SC allows suit because civil fines may deter pollution (Friends of the Earth, Inc. v. Laidlaw Environmental Services)

ii) Fines paid to the government have deterrence value which may grant plaintiffs standing(1) Fine paid to US gov’t for environmental pollution was sufficient for plaintiffs

complaining of aesthetic and recreational injury (Friends of the Earth v. Laidlaw)

Mootness20) Plaintiffs must have standing throughout the time a case is pending

a) “standing in a time frame”b) “collateral consequences” may be sufficient

i) even though the criminal conviction being appealed has been served, the collateral consequences which attach to a criminal conviction (can’t vote or get a gun permit, subject to deportation, etc.) make the conviction sufficient (Sibron v. NY)

c) Class action certification is sufficienti) Typically, claim must not be moot when class certification occurs

(1) Class action appropriate for one-year residency requirement prior to seeking divorce (Sosna v. Iowa)

ii) If certification prior to mootness is impractical, may not be required(1) Plaintiffs claiming illegal pretrial detention could have standing because

certification during short detention period was impractical (Ferstein v. Pugh)iii) Class action not moot as long as it is live for some class plaintiffs (even if not for

named plaintiff)

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(1) Named plaintiff in employment discrimination claim fired for other legitimate reasons did not moot case (Franks v. Bowman Transport Co.)

iv) Mooting the substantive claims does not moot a class certification(1) Even though plaintiff’s class was not certified, court would look to mootness of

class’s claims, not just the plaintiff, when deciding whether to hear class certification appeal (US Parole Comm’n v. Geraghty)

21) Exceptions to the mootness requirementa) “Capable of Repetition, Yes Evading Review”

i) Challenged action is too short in duration to be fully litigated prior to its cessation, and(1) pregnancy, ect.

ii) Reasonable expectation that the same complaining party would be subjected to the same action again(1) unlikelihood that parole violee would be subject to parole violation again

defeated standing (Weinstein v. Bradford)(2) applied with varying stringency (Roe, ect.)

b) Voluntary cessationi) If defendant voluntarily ceases activity but reserves legal right to start again, case

is not moot(1) Polluter’s right to restart polluting made case against him not moot (Friends of

the Earth v. Laidlow)22) Policy:

a) Good:i) Protects separation of powers – limits court to its constitutional roleii) Gives courts discretion to pass on politically difficult questions

b) Bad:i) Doctrine doesn’t seem to be applied with any consistencyii) Lack of clarity of the language in Art. III?iii) Restraint from justiciability doesn’t necessarily save us from judicial activism

Political Question23) Real v. Bogus political question

a) Bogus Political Question:i) Failure to state a claim for which relief can be granted

(1) Federal judge does not have standing to sue for lack of proper trial by the House of Representatives that led to his impeachment (Nixon v. US)

b) Real political question:i) A particular decision is vested to another branch of government

(1) Court had no standing to hear suit by congressman against decision by House of Representatives to give election to his opponent because decision constitutionally given to the House itself (Morgan v. US)(a) House must be “elected by the people” – constitutional constraint

24) Six Factors for determining Political Questions (Baker v. Carr)a) Textually demonstrable commitment to another political department

i) Commitment comes from the constitution(1) The power to judge the outcome of elections is textually committed to the

House of Representatives (Morgan v. US)ii) Even if a decision is committed to another branch of government, the courts may

judge the extent of that commitment and whether it was based on the required criteria(1) Court may judge whether House is acting within it’s committed responsibilities

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when seating its members (Powell v. McCormack)b) Lack of judicially manageable standards

i) Standards or text the Court is asked to decipher are not judicially manageable(1) Note: courts often interpret ambiguous language

ii) Courts are capable of determining whether state electoral districts violate the Equal Protection Clause (Baker v. Carr)

c) Requires initial policy determination of a non-judicial characteri) Courts should not decide whether to recognize a particular country (Taiwan, ect.)

d) Requires expressing a lack of respect for another government branchi) Don’t want to overrule another branch unless they have to? (mysterious)

e) Unusual need for adherence to a political decisioni) Typically invoked in the foreign policy contextii) For the good of the nation-type argument – Rhode Island

f) Potential for embarrassment of the governmenti) Again, most prevalent with foreign policyii) No embarrassment in cases of constitutional interpretation

Congressional Control of Jurisdiction

Congress’s Power over Jurisdiction25) Article 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.”

26) Traditional doctrine (plenary power over federal jurisdiction)a) Control of lower courts: Congress has plenary power over the lower federal courts

because it has the authority to create or destroy themi) The jurisdiction of the lower courts extends no farther than congress has

authorized (1) Even though a mortgage bond case technically complied with diversity

requirements, congress has not authorized that kind of diversity jurisdiction (Sheldon v. Still)

ii) Does NOT extend as far as constitutionally permissibleiii) Congress’s creation of the federal courts did not automatically mean they

intended to vest them with jurisdictionb) Control of Supreme Court: Congress has plenary power over the Supreme Court

under the “exceptions” clausei) May make any exceptions to SC jurisdiction that it deems necessary ii) Includes exceptions to the appellate power under the exceptions clause

(1) Congress may remove Habeas Corpus jurisdiction in order to affect the outcome of pending libel case (Ex Parte McCardle)

iii) Exception: congress does not control the Supreme Court “original” jurisdiction(1) This is quite limited, see constitutional text above

27) Constraints outside Article III (“external constraints”)a) Rule: Congress may not limit jurisdiction by mandating a rule of decision or specific

outcomei) “Congress can’t require a court to deny itself jurisdiction previously conferred

because its decision, in accordance with settled law, is adverse to the

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government”(1) Congress could not nullify the pardon of former confederate in order to deny

him property that would otherwise be his (US v. Klein)(2) law requiring agencies to permit timber sales subject to certain restrictions,

and affecting pending cases by environmental groups, didn’t establish a rule of decision – it changed the law and directed courts to apply the new law to pending cases, which is permissible (Robertson v. Seattle Audubon Society)

b) Rule: Congress may not remove jurisdiction when it would impair executive authorityi) Statute that made grant of presidential pardon sufficient to prove disloyalty (can’t

claim pre-civil war property) was invalid for effectively limiting president’s pardon power (US v. Klein)

ii) Bumedian v. Birk(Bush) – violating suspension of Habeas Corpus clause is enoughiii) Congress may not discriminate in grants of jurisdiction in violation of the Equal

Protection clausec) Rule: Congress can’t exercise its power to give, withhold, and restrict lower federal

court jurisdiction in a way that would deprive people of due process or take their property without just compensationi) Portal-to-Portal Act retroactively eliminated liability for underpaying workers, and

provided that no court would have jurisdiction over any action to enforce the liabilities, Act didn’t deprive employees of property because rights under the FLSA are subject to Congress’s power to regulate commerce, even retroactively (Battaglia v. General Motors Corp. (2d Cir. 1948))

d) Rule: Congress may not violate an explicit constitutional mandatei) USCS Const. Art. I, § 9, Cl 2. “Suspension clause”: “The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”

ii) In 2006, Congress passed a law stripping state and federal courts of jurisdiction over applications for habeas relief by aliens accused of being enemy combatants, This law violates the Suspension Clause because congress didn’t authorize sufficient alternative (Boumediene v. Bush)

e) Theory: congress may not take away jurisdiction in a way that would fundamentally burden a constitutional righti) Example: it may be unconstitutional for congress to strip courts of all jurisdiction

of First Amendment claims28) Constraints inside Article III (“internal constraints”)

a) NOTE: THIS STUFF IS BASICALLY ALL THEORY!!!b) Rule: no one really knows what the hell’s going on herec) What we do know:

i) Congress retains plenary power over Supreme Court appellate jurisdictionii) Congress retains plenary power to deny original jurisdiction in the “last six”

categories mentioned in Article III(1) Controversies to which the United States shall be a Party;(2) Controversies between two or more States;(3) between a State and Citizens of another State;(4) between Citizens of different States;(5) between Citizens of the same State claiming Lands under Grants of different

States, and (6) between a State, or the Citizens thereof, and foreign States, Citizens or

Subjectsd) What we’re not sure about:

i) Congress must vest the federal courts with jurisdiction over the “first three” categories of article III, but may decide where to vest it (Story/Amar theory)

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(1) Cases arising under federal law(2) Cases involving ambassadors(3) Cases in admiralty and maritime

e) Options available to congress for vesting jurisdiction:i) Jurisdiction choices of congress:

(1) original/appellate, (2) mandatory/discretionary, (3) lower/supreme

f) Rule: congress cannot remove jurisdiction of SC to rule on the constitutionality of a law?

g) Hart’s View of Article III Limits on Congress’s Power Over Jurisdictioni) Congress has plenary power to limited federal court jurisdiction when the

consequence is merely to force proceedings to be brought in state courtii) If federal rights are at stake, state courts may be obligated to vindicate themiii) Congress can impose exceptions to federal court jurisdiction so long as it doesn’t

destroy the essential role of the Supreme Court under the Constitutioniv) Benefits:

(1) Protects the courts and the Constitution, consistent with early congressional practices, consistent with the Exceptions Clause

v) Drawbacks:(1) Some textual problems, this is a balancing test so it’s unclear how far is too far

h) Black’s View of Article III Limits on Congress’s Power Over Jurisdictioni) Congress can impose any exception to the Supreme Court’s appellate jurisdiction ii) The Court can’t be given the right to make exceptions to its own jurisdiction if

Congress, which was expressly given this power, can’t exercise this rightiii) Federal courts take jurisdiction when told to, and don’t when told not toiv) Benefits:

(1) Clear, easy to apply, gives the judiciary democratic legitimacy, respects the Exceptions Clause

v) Drawbacks:(1) Contradicts some constitutional text, could take away constitutional rights

i) Wechsler’s View of Article III Limits on Congress’s Power Over Jurisdictioni) Congress’s ability to limit jurisdiction is unlimitedii) Federal courts pass on constitutional questions because they must decide issues

in their jurisdiction, not because they have a special function to enforce the Constitution or police other governmental entities

iii) Still, Congress can’t completely take away jurisdiction over certain casesj) Story/Amar’s View of Article III Limits on Congress’s Power Over Jurisdiction:

i) Comes from Justice Story, Martin v. Hunter’s Lessee (1816)(1) Supreme Court of Virginia refused to implement SC judgment saying they had

no appellate jurisdictionii) Congress didn’t have to create inferior federal courtsiii) The first 3 categories of federal judicial power are distinct from the remaining 6

(1) Judicial power of the U.S. is vested in the federal judiciary, not the state judiciary

(2) Judicial power must, at minimum, grant subject matter jurisdiction to finally decide all cases in the first 3 categories

(3) Judicial power may, but need not, extend to cases in the other 6 categories iv) Congress can shift final resolution of any case in the Supreme Court’s appellate

jurisdiction to any other Article III court that Congress may createv) Article III affirms the parity of all federal judges

(1) Appointment, confirmation, tenure, and salary are the same for all judges

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(2) This is why lower courts can be trusted with finally resolving cases in the first 3 categories, and state courts can’t unless subject to federal review

vi) Criticism: this doesn’t account for the early constitutional practice keeping the Supreme Court from reviewing state statutes struck down for violating federal law or the Constitution

vii)Application of theory:(1) Stripping lower courts of jurisdiction over certain federal question is fine(2) Allowing only lower courts to hear a certain federal question is fine(3) Not allowing any federal court to hear an abortion challenge is not fine

viii) Benefits:(1) Respects “all” and “shall”, we like the federal courts can enforce our rights,

fairly clearix) Drawbacks:

(1) Ignores parts of Article III, a bit intricate, inconsistent with the 1st Judiciary Actk) Policy:

i) It is advantageous that we don’t know the answer to how much power congress has over Supreme Court’s jurisdiction(1) Congress could take this power too far if it could(2) The Court could assume too much power if it couldn’t

29) Constraints on “channeling” jurisdiction:a) Rule: congress has broad power to channel jurisdiction where it pleasesb) Definition of jurisdiction channeling

i) Permissible channeling: “no court can hear a case about this statute” (1) not as problematic, because a constitutionality defense is not precluded

ii) impermissible channeling: “when a court hears a case, it can’t consider the constitutionality of the statute”:(1) This deprives a forum for hearing the law, precludes a defense (more serious

than precluding a claim)c) Rule: As long as congress grants plaintiffs the ability to be heard in some federal

tribunal, the courts have no jurisdiction to hear the plaintiff’s claimsi) Congress’s grant of jurisdiction to a special court to hear challenges to the

Emergency Price Control act was sufficient, courts could not hear plaintiff’s case absent grant of jurisdiction from congress (Yakus v. US)

d) Interpretation of jurisdiction-stripping statutes:i) Courts require “clear and convincing evidence” that congress wanted to restrict

access to judicial review(1) Eliminating all challenges “arising under” a statute completely strips

jurisdiction and is unconstitutional ii) Congress will normally view a statute as jurisdiction “channeling”

(1) Veternan conscientious obector sued VA which had denied Robison’s application for educational assistance, SC says the “no review” clause does not restrict constitutional review, no indication that the VA was ruling on that question, constitutional review not explicitly prohibited (Johnson v. Robison)

(2) Statute giving completely unfettered authority to CIA director to hire and fire did not preclude constitutional claims because congress’s intent was not clear (Webster v. Doe)

Control of State Jurisdiction30) History:

a) Federalist No. 82 - States had the pre-existing authority to hear these claims, and the creation of the federal courts didn’t divest them of these claims

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31) Rule: States are presumed competent to hear cases under federal lawa) Basis: State courts are usually of general JD, which typically is empowered to hear

cases arising under any law (even foreign)i) So if it can hear a case arising under law of Japan, it can certainly hear a federal

law caseii) State courts have concurrent jurisdiction over RICO claims (Tafflin v. Levitt)

b) Exception: Congress may divest a state court of concurrent jurisdiction, ONLY when it is explicit (or possibly when very clearly implying it)

c) Exclusivity is established via congressional intenti) Indications of exclusively (Tafflin v. Levitt factors)

(1) Expressly stated in statute (express)(2) Legislative history (implied)(3) Compatibility of federal and state jurisdiction (implied)

ii) NOTE: the SC seems to overrule implied exclusivity in Yellow Freight Systems(1) Lack of express language in Title VII divesting state court of jurisdiction under

EEOC appears to have been dispositive, though legislative history was considered

32) Removal from courts:a) Normally, cases removable to federal court only when complying with the “well-

pleaded complaint rule” (see “federal jurisdiction” infra)i) to determine if complaint arises under federal law, only look at the complaint,

NOT the defenseii) can remove from state to federal only if the case could have started in federal

court originallyb) Exception: §1442: Removal is permitted in criminal prosecutions for alleged

violations of state law where defenses are claimed under federal law or authority (see federal jurisdiction, infra)i) For constitutional purposes, a case “arises” under federal law if there’s a Fed Q

anywhere in itii) Davis was indicted for murdering Haynes in Tennessee state court and prayed for

removal on the ground that he killed Haynes in self-defense in carrying out his duties as a federal revenue agent in attempting to seize an illegal distillery, SC says case removable to federal court (TN v. Davis)

iii) Constitutional basis: probably necessary and proper clausec) Where federal court takes jurisdiction on removal, state court proceedings must

cease (TN v. Davis)33) Rule: state courts must hear federal claims unless they have a valid, non-

discriminatory reason not toa) State courts cannot decline to hear federal causes of action

i) Claiming a federal statute is against state policy is not an adequate ground for failing to hear the federal cause of action (Mondou v. State of NY)

ii) Federal governmet is not a “foreign sovereign” and states must enforce federal penal statutes (Testa v. Katt)

b) Exception: state courts may decline to hear federal actions when it has a “valid excuse”i) Test: Basically states need an excuse beyond the fact that it’s a federal law,

some policy that would apply to all lawsii) Valid excuse found:

(1) Where plaintiff, defendant and facts of case are all from out of state, state may have a valid excuse for not hearing the case (Douglas v. NY)

(2) Missouri state courts refused to dismiss a federal case brought by a non-resident against an out-of-state corporation for an accident occurring outside

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of Missouri because they didn’t think they could invoke forum non conveniens to dismiss a federal cause of action, SC says this fine because was local policy which did not discriminate against federal claims (Missouri ex rel. Southern Railway Co. v. Mayfield)

c) NOTE: Thomas in Haywood v. Drown (2009) says history shows framers didn’t think state courts were required to hear federal claims

34) State court procedure when hearing federal claims:a) State procedure controls unless would defeat an “integral part” of the federal right

i) Allowing for a non-unanimous jury verdict does not defeat federal rights (Minneapolis & St. L.R. Co. v. Bombolis)

ii) Allowing judge to hear factual issues regarding fraud in a FELA case does defeat an integral part of the the federal right, because the right to trial by jury of all issues of fact is too substantial a part of the rights under FELA to not be observed by state courts (Dice v. Akron, Canton, and Youngstown R. Co.)

iii) Simplified federal pleading rules are integral to a federal right (Brown v. Western Ry. Of Alabama)

b) Policy:i) Siegel: Frankfurter position makes more sense, because it’s confusing trying to

work with “hybrid” model, and P always has another choice (bringing in federal court)(1) But if Congress says something (“must have unanimous jury verdict”), seems

like state courts would have to apply thisii) Alternative argument: As long as there is a fair procedure, they should just apply

that to federal law(1) But this isn’t the rule – look to “integral part of process”

35) Policy:a) Why can Congress may make federal jurisdiction exclusive?

i) Authority:(1) Supremacy clause

(a) PROF: technically, this clause doesn’t confer any specific powers(2) Necessary and proper clause

(a) Congress can make federal JD exclusive if it’s the best vehicle to carry on a certain power

ii) BUT can’t abridge pre-existing rights(1) I.e, could take away diversity JD from states b/c didn’t exist at the time of the

unionb)

The Applicable Law

§ 34 of the Judiciary Act: “The laws of the several states, except where the Constitution, treaties, or statutes of the U.S. otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the U.S., in cases where they apply.”

State Law in Federal Courts36) Procedural principle – Federal law is interstitial:

a) can partially govern a situation, but leave other matters to state law,

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i) leads interpretation of federal law to vary from state to state even though the cause itself is universal

b) It’s a matter of statutory interpretation whether federal law is interstitiali) In determining how much state law is displaced by federal law, courts should

evaluate if the objective of the statute would be frustrated by the application of varying state law

37) Federal interpretation of state law:a) Old doctrine (Swift v. Tyson)

i) Federal courts apply state written law, but federal common lawb) Erie doctrine (Erie RR Co. v. Tompkins):

i) Rule: In diversity cases, federal courts apply the common law of the states in state causes of action

ii) There is no general federal common law – federal courts aren’t empowered to create it(1) Rules of Decision Act: “laws of several states shall be the laws of decision

when state law apply”(2) Practical effect: discriminates against instate Ps – doesn’t fulfill proper purpose

of diversity JD(3) Constitution: No clause in Constitution gives power to Congress to control

issues of state lawiii) Paradigm shift in theory of what law is - it’s something that emanates from a

sovereign gov’tiv) Exception: Congress has paramount power to fix and determine national

maritime law(1) Federal maritime law applies in case about death of maritime worker

(Southern Pacific Co. v. Jensen)c) Policy:

i) Problems with the Swift doctrine:(1) State court common law differed by state, preventing uniformity of decision(2) It was difficult to demarcate general law from local law(3) Swift led to forum-shopping to get more favorable results(4) Many people were moving out-of-state to establish diversity(5) There was uniformity among federal courts, but not among federal and state

courts sitting in the same jurisdiction38) Choice of law principles:

a) Federal court, sitting in diversity, must apply the choice of law principles of the state in which it is sitting (Klaxon v. Stentor Electric MFG Co., Inc.)i) Policy: Don’t’ want different results in each court – also encourages forum

shoppingb) Test: When does state law apply?

i) When there are state law claims and federal law claims in the same case(1) Exception: doesn’t apply to federal question cases where state law is

applicable by virtue of a federal statute, if the statute specifies a different rule(a) IE, in FTCA case, statute says that proper law is that of the place where the

claim arose, and this controls even if this is different than where the court is

ii) When federal statute refers back to state lawiii) When federal statute leaves out reference to which law applies

c) Change of venue rules:i) following a change of venue at the defendant’s request, the transferee court

should apply the same law that would have applied in the first court (Van Dusen v. Barrack)

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ii) this also applies to cases where the plaintiff requests a change of venue after first filing a case in a proper forum (Ferens v. John Deere, Co.)

d) Policy:i) Two options for uniformity

(1) Vertical: More certainty with federal law principles in state and fed courts(a) Erie thought it was more important to have vertical uniformity(b) Simply the result of the federal system where each state has its own law

(disuniformity among states is a result of this system)(2) Horizontal: More certainty between federal courts in different states

(a) Under Swift, horizontal uniformity was promoted because the thought federal judges would come to some sort of general federal law

ii) What does current policy of using CoL principles of state where federal court sits accomplish?(1) Enforces vertical uniformity (between courts in same state), but horizontal

disuniformity between same courts in different states(a) Policy perspectives: forum shopping not so great

(2) Siegel: under Erie regime, is choice of law a state or federal matter?(a) Swift: choice was a “general” law matter(b) Many different approaches to CoL:

(i) Better law approach: Courts decide which law is better, and apply that one

(ii) First Rest. (common): turned on where the event occurred(c) Interest Analysis:

(i) How state law interests would be affected by certain law(d) MSR: most significant relationship

(3) If CoL is an extension of substantive law, then state laws should apply in the absence of Congressional override

39) Statute of Limitations principles:a) Rule: Normally, where federal statute creates a cause of action, but doesn’t put a

SoL on that action, court should find analogous state law (state where court sits?), and apply that SoLi) Rule in almost all cases

b) Exception: federal court may draw SoL from a federal statute when necessary based upon three factors (Agency Holding Corporation v. Malley-Duff & Associates):i) There is no analogous state law

(1) No state law is analogous to RICO (Agency Holding Corporation)ii) Uniform SoL is necessary

(1) RICO actions are interstate, go across the country, need uniformityiii) Finds Congressional intent

(1) This has been the practice for many years, Congress is familiar with it, and they would expect this result

(2) Intent may be inferred when a statute is modeled on a previous federal statute (RICO via Clayton Act)

c) Contrary policy argument – Scalia concurrence:i) Notion of “borrowing” state law is inappropriate - state SoL applies of its own

force(1) Until federal law preempts, the state law applies (they’re general gov’ts)

ii) Federal law can displace all of state law in certain areas; can also just displace some of state law in a certain area (“interstitial” quality)(1) I.e., if federal law creates only a cause of action, then only that preempts state

law, but all other aspects of the case are governed by state law(2) This isn’t disuniformity, because the federal law (cause of action), remains the

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same throughout all statesd) NOTE: In 1990, Congress enacted a catchall 4-year federal statute of limitations for

federal causes of action not subject to specified statutes of limitations, in laws enacted after 1990

40) “Traditional province of state law” principles:a) When federal law requires a legal determination which is typically the province of

state law, court will look to the state where (the case is tried?) to make the determinationi) Federal court determining definition of “child” in copyright case applied law of

California (DeSylva v. Ballentine)b) Factors favoring looking to state law:

i) Congress did not contemplate the issue when it passed the relevant statute(1) Congress was not contemplating family law when passed copyright protections

ii) Only one state is involvedc) Policy:

i) The scope of a federal right is a federal question, but that doesn’t mean it isn’t to be determined under state law, particularly when a law pertains to familial relationships created under state law

ii) Contrary view (Douglas) – uniformity is better for everyone

Federal Common Law41) Federal common law applies where there is a sufficient federal interest at stake42) Areas in which federal common law applies

a) Cases involving the rights and duties of the United Statesb) Cases involving Other Federal Interestsc) Instructions to create federal common law

i) Express: rare(1) FRE 501 (criminal law privileges)

ii) Implied(1) Congressional grant of jurisdiction over arbitration agreements in labor

disputes implied authority to create federal CL (Textile Workers Union of America v. Lincoln Mills)

(2) Critical point in figuring out whether JD grant implies grant to use FCL is the purpose in the grant of JD(a) Was the grant of jurisdiction created in order to establish a uniform, neutral

forum?iii) Statutory interpretation: bears a strong resemblance to the creation of federal CL,

especially when a statute is so vague that its interpretation necessarily entails a great deal of judicial discretion

iv) Kimball foods(1) Who has the best claim on a lein(2) Court says that this

43) Rule: Federal common law applies when…a) The rights and duties of the US are at issue

i) IE the US is a party to the caseii) Federal law governs questions of the U.S.’s rights under federal programs

(1) Priority of liens from SBA federal lending programs must be evaluated under federal law (United States v. Kimbell Foods)

iii) When federal law is unclear, federal courts to fill in the interstices of the federal legislation based upon the following factors:(1) Federal programs requiring uniformity necessitate controlling federal rules

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(a) Issuing of commercial paper occurs on a vast scale in several states and requires uniformity (Clearfield Trust Co. v. United States)

(2) If application of state law will frustrate specific objectives of federal programs, need to fashion special rules solicitous of those objectives(a) Rights and duties of the United States under its commercial paper are

sufficient(3) Evaluate the extent to which applying the federal rule would disrupt

commercial relationships or private expectations predicated on state lawb) Other federal interests are at stake – courts should consider…

i) Whether the case involves a uniquely federal interest(1) Uniquely federal interests:

(a) Obligations to and rights of the U.S. under its contracts (Boyle v. United Technologies Corp.)

(b) Civil liability of federal officials for actions taken in the course of their duty (Boyle)

ii) Whether there is a significant conflict between federal and state law(1) Test: displacement of state law happens only where a significant conflict

exists between an identifiable federal policy or interest and an application of state law

c) Congress expressly authorizes the creation of federal common law (rare)i) FRE 501 states that except as otherwise required by the Constitution, federal law,

or the Supreme Court’s rules, privilege is governed by common law as interpreted by federal courts. (1) However, in civil actions where state law supplies the rule of decision, privilege

is governed by state lawd) Congress implies authorization to create common law

i) Labor Management Relations Act § 301(b) makes it possible for a labor organization sue and be sued in federal court, while § 301(a) supplies the basis for a court to take jurisdiction and apply § 301(b)(1) Court finds this is sufficient invitation to fasion common law from federal labor

law (Textile Workers Union of America v. Lincoln Mills of Alabama)44) Policy:

a) Why shouldn’t federal courts be free to apply common law?i) Courts can’t be held accountable the way that legislatures canii) Under separation of powers principles, the judiciary shouldn’t have the power to

make laws outside of the boundaries set in D’oenchiii) The federal government is limited, so the starting point must be state law unless

it’s been displaced under the Supremacy Clauseiv) Unclear when statutory interpretation stops and federal common law begins

45) Kimball foods:a) Case regarding priority of leins on SBA small business lending program after

bankruptcyb) Incorporating state law here would in no way hinder the SBA’s administration

because…i) SBA employees are instructed to follow state law, and they do soii) SBA Manual indicates security interests are controlled by state commercial law iii) Local lending offices and employees are familiar with local lawiv) Choosing responsible debtors requires individualized selection procedures, which

the SBA has already implemented in great detailv) Applying state law won’t frustrate the SBA’s program objectivesvi) There is less need here than in the tax lien area (where the object is speedy tax

collection) to invoke protective measures against defaulting debtors

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Rights of Action46) Rule: Where there is a legal right there is a legal remedy47) Classic approach:

a) If plaintiff is within the class of persons meant to be benefitted, they have a right of actioni) RR employee was injured on railroad car at work by a defective handle. Employee

could sue because Federal Safety Appliance acts provided for safety standards, including proper handles on cars, meant to cover the plaintiff (Texas & Pacific Ry. Co. v. Rigsby)

48) Mid-century approach:a) Where the authorities cannot be expected to reasonably enforce a federal law, the

courts may fashion a right of actioni) SEC was overwhelmed with securities fraud duties, therefore shareholders were

not protected as congress intended (J.I Case Co. v. Borak)b) Four factor test to determine whether plaintiff is within the protected class (Cort v.

Ash):i) Is P within class of intended beneficiaries?

(1) Shareholder was not intended beneficiary of law forbidding corporations from spending money in federal elections (Cort v. Ash)

ii) Indication of legislative intent?(1) Only look to see if Congress clearly intended that there wouldn’t be a private

right of actioniii) Consistent with underlying purposes of the legislative scheme?iv) Is cause of action one traditionally falling under state law?

(1) Corporate law is the law of the states, not federal (Cort v. Ash)49) Current approach:

a) Test: there is no private right of action unless congress affirmatively intended to create onei) Cort factors are simply evidence of congressional intent

(1) However, focus on congressional intent doesn’t mean evidence is required that Congress, in enacting the statute, actually had creation of a private cause of action in mind (Thompson v. Thompson)

(2) Prof: this makes no sense since congressional intent is one of the four factorsii) Inquiry may be limited to the text of the statute itself

(1) Statutory language required filing the reports, and both the statute and legislative history were silent on the question of remedies, so this is dispositive of a private right of action under §17(a) of Securities Act (Touche Ross v. Reddington)

b) Alexander v. Sandoval – § 601 of the Civil Rights Act provides that no one may be discriminated against by a program receiving federal financial aid § 602 – directs federal agencies to effectuate § 601 by setting rules, regulations, or ordersi) SC finds the rights-creating language in § 601 is completely absent from § 602,

which only describes the rights and duties of federal departments and agenciesii) Creation of agency-centered method of enforcement is evidence congress did not

intend for § 602 to be enforced by private partiesc) NOTE: recent court opinions have suggested that congressional intent is the primary

factor, or perhaps the only factori) (Cannon v. Univ. of Chicago)ii) (Touche Ross)iii) (Thompson v. Thompson)

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50) Policy:a) Potential approaches

i) Rigsby: if P was meant to be benefited, there’s a cause of actionii) Cort: 4 factors: Intended beneficiary, legislative intent, purpose of scheme,

traditionally falling under state lawiii) Cannon: 4 factors of intent

(1) Focus on one factor, but take into account others(2) Intent is only factor(3) No factors

b) Consequences of various approaches: (1) Size of the penalty, (2) Type of enforcementi) Centralized (gov’t): only one thing empowered to bring actions, so there will be

much fewer actions(1) But maybe we only want the egregious cases brought

ii) Decentralized (private parties): more likely that suits will be brought(1) But maybe we don’t want every single action being brought

c) Is requiring explicit statutory text to create right of action a good idea?i) Idea that this is a legislative function, and that the judiciary can’t make this callii) Courts’ free-formed interpretations of legislative intent may be wrongiii) Courts should encourage the passage of good legislationiv) Sometimes the government doesn’t enforce laws it disagrees with

d) Congress could resolve this issue by implementing a default provision regarding private causes of actions any time it wants

51) Express private rights of action:a) Where suit is against a state official: 42 USC §1983: whenever someone under color

of state law deprives any citizen of any right, privileges or immunities guaranteed under the Constitution shall be liable in an action at law (expressly, there is a right of action)

b) Where P in suit against federal official seeks damages other than money damages: 5 USC §702: express right of action

Federal Jurisdiction

Judicial Power Under Article III52) Rule: Federal courts can only hear cases that fall within one of the nine enumerated

Article III bases for jurisdictiona) Under Article III, a case arises under federal law if there is any federal question

somewhere in the case, even if the federal question is ultimately never raisedb) The possibility that a defendant will raise a federal question is enough to grant the

federal courts jurisdiction under the “arising under” jurisdictioni) OH tried to levy a tax on a federal bank in OH; although contract arose under

state law, an issue of federal grant of authority to bank might have arisen, therefore federal court had jurisdiction (Osborn v. Bank of the US (US 1824))(1) PROF: this is clearly wrong – too broad

c) Cases arising under the Foreign Sovereign Immunity Act arise under federal lawi) A foreign corporation sued an entity of the Nigerian government in federal court

for breach of the Foreign Sovereign Immunities Act, SC says that even if the main rule of decision would be derived from state law, the case necessarily involves the threshold federal question of whether the defendant was immune to suit

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(Verlinden B.V. v. Central Bank of Nigeria (1983))d) A congressional charter’s ‘sue and be sued’ provision may be read to confer federal

court jurisdiction if it specifically mentions suit in federal courti) The Red Cross was entitled to remove a tort action against it to federal court

(American National Red Cross v. S.G. (1992))53) Protective jurisdiction:

a) Congress appears to have the authority to simply put a case under state law in federal court by explicit command (“protective jurisdiction”)i) § 301 implicitly instructs federal courts to create federal common law governing

collective bargaining agreements, the suit was one that ‘arose under’ federal law (Textile Workers Union of America v. Lincoln Mills of Alabama)

54) Removal jurisdiction:a) If case start with Fed Q, but comes up later: could get to federal court by removalb) Jurisdiction over Federal officials:

i) Claims against officers of the United States may be removed to federal court under § 1442 only when they claim a federal defense (1) § 1442 authorizes the removal of any civil or criminal action brought against

any officer of the United States for any action committed under the color of his office

(2) California charged Mesa, a federal postal worker, with manslaughter after she accidentally killed a bicyclist with her postal truck, didn’t raise federal defense so no removal (Mesa v. California)

55) NOTE: If Article III didn’t cover questions containing both federal and state law issues, there could be no appeal to the Supreme Court from state supreme courts

Statutory Jurisdiction56) 28 USC § 1331 - Federal question – “The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”a) ‘Arising under’ is less expansive in § 1331 than it is in Article III

i) Interest in keeping out cases where defendants don’t raise federal defensesii) Federal courts can’t hear purely state law cases between interstate partiesiii) Would deprive state courts of cases they have sole authority to heariv) Federal courts are courts of limited jurisdictionv) A more expansive interpretation is included in the Constitution to facilitate

Supreme Court reviewb) A case can ‘arise under’ federal law in 2 ways:

i) When federal law creates the cause of action asserted (majority of cases)ii) When a state law claim raises a federal issue within the meaning of Grable

57) 28 USC § 1441 - Removal of civil actions – “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”a) permits only defendants to remove cases, and only cases where federal courts would

have had original jurisdictionb) Accordingly, under the well-pleaded complaint rule, defendants may only remove if

the plaintiff could have brought the case in federal court in the first place58) Declaratory Judgment Act – states that in a case of actual controversy, any federal

court can declare the rights and legal relations of any party seeking such declaration, whether or not further relief is or could be sought

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59) The Well-pleaded complaint rule:a) Rule: The ‘arising under’ clause only confers jurisdiction when the plaintiff’s

statement of his own cause of action shows it is based on federal law or the Constitutioni) In establishing federal court jurisdiction, plaintiffs must rely only on their claims

b) cases may be brought originally in federal court when the plaintiff alleges a federal cause of action (Louisville & Nashville R. Co. v. Mottley)

c) “arising under” in the context of a federal statute is interpreted much more narrowly than “arising under” in Article IIIi) contrast with Osborn

60) State law incorporating federal law:a) Old rule: jurisdiction depends only upon if state or federal law gives the cause of

actioni) Suit for slander that requires determination of the validity of a federal patent is a

suit under state law (American Well Works Co, v. Layne & Bowler Co.)ii) The fact that state law incorporates federal law is insufficient for federal

jurisdiction(1) Kentucky statute determining liability by reference to the Federal Safety

Appliance Act did not raise a federal question (Moore v. Chesapeake and OH Ry. Co.)

iii) Exception: it may be good enough if a cause of action requires P to establish a point of federal law(1) P s/h sued company seeking to enjoin company from purchasing illegal bonds

(claim was breach of fiduciary duty, but case would require determining whether federal bond program was constitutional, was sufficiently under federal law (Smith v. Kansas City Title & Trust Co.)

b) New rule: a state law raises a federal question ONLY IF there is a private right of action under the federal statutei) Suit brought by mothers who had taken drug, resulting in birth defects, claiming

that Bendectin violated the FDCA – say the drug was misbranded under the statute. Violation of the safety statute was a rebuttable presumption of N. Court holds no jurisdiction because FDCA doesn’t create a statutory right of action (Merrell Dow Pharmaceuticals v. Thompson)

c) New New rule: federal courts have jurisdiction over a state law claim which raises a stated federal issue, disputed and substantial, which a federal forum may hear without disturbing congressionally approved balance of federal and state judicial responsibilitiesi) IRS seizes property from G, D buys the property, G brings suit against D because

land was improperly seized, because whether Grable was given notice in compliance with federal law is an essential element of its claim, and the meaning of the law is actually in dispute, federal court had jurisdiction (Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing (2005))

ii) Relevant considerations:(1) Clear legislative interest present?(2) Extent to which the JD would intrude on state issues(3) Emphasis on the # of cases that would be coming into federal court

(a) Should this be a consideration?(i) No: we either have JD or we don’t(ii) Yes: where JD is not so clear, this is an appropriate consideration to

maintain the balance between state and federal courts(4) Congressional judgment

(a) 1875 “arising under statute” or §1331 statute: Congressional judgment is

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only one sentence – this seems more like a judicial judgmentiii) Four-part test for determining jurisdiction over state law claim:

(1) necessarily raised; (2) actually disputed; (3) substantial; and

(a) forward-looking claims are much more likely to be substantial(i) malpractice suit against attorney under patent case was backward-

looking, wouldn’t affect future patent cases (Gunn v. Minton)(4) capable of resolution in federal court without disrupting the federal/state court

balance approved by Congress(a) states have primary responsibility for professional lawyer standards (Gunn

v. Minton)(i) no evidence of congressional intent to override this

Supplemental Jurisdiction61) Rule: Federal courts may exercise jurisdiction over all claims when there is at least

one federal claim and all claims arise under the same nucleus of operative factsa) When all federal claims are dropped from a case, federal court loses jurisdiction

(United Mine Workers of America v. Gibbs)b) § 1983, suit for violation of constitutional rights by government officials, impliedly

forbids court from exercising pendent JD (Aldinger v. Howard)c) § 1332 suit in diversity forbids the impleading of a non-diverse defendant (Owen v.

Kroeger)d) (Finley v. US)e) Distinguish from Osborn

i) Osborn had one claim wrapped up in both federal law and state law (in that case the federal court must resolve all of these claims)

ii) Here, these are 2 different claims, each distinctly federal and state (court must try the federal claim only)

62) Congress finally passes §1367, which gives a codified basis for pendent JD (now called “supplemental JD”)a) Reflects congress’s interpretation of “cases,” in the Constitution (this is

constitutional)b) In any civil action where federal courts have original jurisdiction, they have

supplemental jurisdiction over all other claims so related to claims in the action that they form part of the same case or controversy under Article III, including claims involving joinder or the intervention of additional parties

c) A district court may decline to exercise supplemental jurisdiction if:i) The claim raises a novel or complex issue of state lawii) The claim substantially predominates over the claim or claims over which the

district court has original jurisdictioniii) The district court dismissed all claims for which it had original jurisdictioniv) In exceptional circumstances, there are other compelling reasons to do so

d) § 1367 unambiguously provides jurisdiction over the claims of unnamed members of a class (Exxon Mobil Corp. v. Allapattah Services (2005))

Lawsuits Against Governments

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Suits Against the Federal Government63) Rule: The federal government can’t be sued, unless consent is given by Congress

a) The government’s waiver of immunity must be clearly stated in the statutory text (Lane v. Pena)i) Legislative history is irrelevant

b) US government was only liable for direct damages caused by the Indian tribes (Price v. US)

64) Old Rule for avoiding FSI:a) Agents of the government may be sued under legal fiction that they are private

citizens (Marbury v. Madison)i) If the rights of the plaintiff are of a kind normally sought against individuals, court

will entertain the action (1) Grandson of Robert E. Lee sues to eject federal government from his land (US

v. Lee)b) If the plaintiff is seeking money the court is less likely to entertain the action (Little v.

Barreme)i) This is because the court knows that the government will ultimately be paying the

judgment against the officialc) There is no immunity for officials acting illegally or outside the scope of statutory

authority, even if the public official acts on executive ordersi) Statute that authorized seizing ships going to france did not grant immunity for

seizing ships traveling from France, regardless of the fact that president had authorized the latter (Little v. Barreme)

ii) Plaintiff may stop the government seizure of the steel mills during Korean War was permissible because secretary of state was acting beyond the scope of his constitutional authority (Youngstown Steel Seizure case)

iii) A good faith belief that one’s orders were lawful is no defense(1) Bates’s plea that he had good reason to believe the seizure occurred in “Indian

country” and acted in good faith is no defense to this action (Bates v. Clark)65) Mid-century adjustments to FSI:

a) Court may dismiss the suit if it’s not directed at the right officiali) Suit against liquor commissioner during prohibition was dismissed because was

not against commissioner of internal revenue (Gnerich v. Rutter)ii) Court allows suit to require Maritime Commission to return stock to Dollar

Steamship company (Land v. Dollar)(1) Concurrence: this makes no sense, the officials would have to act in their

official capacity to grant relief, destroys the legal fictionb) Two types of cases where officers can be sued:

i) Officer being sued in personal capacity(1) Officer is acting as sovereign if actions would be attributable to government

under normal laws of agency(a) Larson was statutorily authorized to enter into the contract and refuse

delivery of coal (Larson v. Domestic & Foreign Commerce Corp)(2) If relief would require officer to take official action, fails this test

(a) Court ignores this requirement in Land v. Dollar, requires officer to officially transfer property from the government commission’s possession to the plaintiffs

ii) Officer being sued where actions are beyond statutory limitations/pursuant to unconstitutional statute(1)

iii) Court rejects third category: where officer taking actions pursuant to an unlawful order

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c) Suits will be dismissed if they would either (Land v. Dollar)…i) “expend itself on the public treasury or domain,” (cost mad $$$) ORii) interfere with public administration

66) Current rule for abrogating FSI:a) APA (U.S.C. § 702): Person wronged with a cause of action shall not be dismissed

on the grounds that the US is an indispensable party or is named in suit, provided that the names of the officers you’re suing are given

b) Relief available:i) Monetary relief not available under the APAii) Congress has waived FSI for monetary damages in two instances:

(1) Tucker Act: waives immunity from K claims(2) Federal Tort Claims Act: waives immunity for tort claims

(a) Very important exceptions to this act(b) Boyle v. United Technologies – implemented the “discretionary function”

exception to the FTCAiii) Federal government is never liable for consequential damages even when it has

allowed itself to be suedc) NOTE: suing a public official is still available, but not much incentive to use it

67) Policy:a) Theories of sovereign immunity

i) Holmesian Theory: (1) There can be no right against the authority that makes the law upon which the

right depends (gov’t makes the law that gives you rights)(a) If gov’t defines torts as acts committed by private parties, this isn’t a tort.

Nothing gov’t does can be a tortii) Hamilton Theory

(1) Simply inherent in the nature of sovereigntyiii) Arguments: Natural v. positive law – go against and for

(1) Ks with sovereign are only binding on conscience of the sovereigniv) Public Policy:

(1) Government can’t be stopped in its tracks by any P who has a dispute(2) Courts shouldn’t interfere with duties of legislature (nothing but mischief!)

v) Mistake/ History (Jaffe)(1) We inherited much of our law from England, and though they had the maxim

“the king can do no wrong,” we misinterpreted this(a) There was always redress provided when the king did a wrong (in the end)

vi) Mystery theory(1) No one knows why we have this immunity – Supreme Court has never given

one(2) S. Ct. CA calls it a “mystery of legal evolution”

vii)Constitutional thoery(1) Scalia: appropriations clause embodies the principle of sovereign immunity(2) Siegel: dubious

b) Differences between governments and corporations which justify different treatmenti) Similarities:

(1) Everyone should respect rights(2) Both act through agents, fictional entities(3) Injury and justice can be the same for both

ii) Differences:(1) Choice in corps, no choice in gov’t(2) Gov’t public goals, corp. private goals(3) Elect gov’t leaders, can’t vote out corp.

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(4) Gov’t creates rights(5) Different goals – profit v. non-profit entities

Suits Against States68) 11th Amendment, 1795

a) Judicial power of the US 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.i) Passed in reaction to SC case saying states sueable (Chisholm v. Georgia):

69) Rule: States are subject to federal law, but generally enjoy a presumption of sovereign immunity from suits for not complyinga) States waive immunity only when waiver is stated unequivocally by express language

or an overwhelming implication in statutory languagei) Acceptance of federal funds isn’t a waiver of sovereign immunity

(1) California protected from citizen suit alleging discrimination under the Rehabilitation Act (Atascadero State Hospital v. Scanlon)

b) Highway department of Texas immune from suit by former employee (Welch v. Texas Department of Highways and Public Transportation)

c) Applies to in-state and out of state citizens (Hans v. Louisiana)i) Fears the “anomalous result” of construing the 11th Amendment literally to bar

only suits by out-of-statersd) States cannot be sued by foreign states, either (Monaco v. Mississippi (1934))

70) Methods for avoiding SSI:a) Rule: State officials may be enjoined from illegal actions under federal law even

where suit against state would not be entertainedi) State officials lose sovereign immunity protection when they act illegally under

federal law (Ex Parte Young)ii) This includes where officer has mandatory (ministerial) task but not where he has

discretioniii) There is NO requirement that the cause of action take a common law action form

(1) Note: this contrasts with Lee, methods for getting around federal sovereign immunity

b) Exception: state retains SSI from federal law claim if they are a “real party in interest”i) Test: whether relief sought against the nominal defendant would operate against

the state, especially by imposing liability damages to be paid from the public fisc(1) This applies even if the act was performed in the course of official duties(2) Sovereign immunity only applies if the judgment must, under all

circumstances, be paid out of state funds(a) A plaintiff claimed that UGA employees infringed his copyright, seeking

damages. District Court allows suit (National Association of Boards of Pharmacy v. Board of Regents of the University System of Georgia (M.D. Georgia 2008))

ii) State IS real party in interest:(1) Cases where monetary relief is sought

(a) This includes claims for retroactive relief(b) Suit to retroactively award wrongfully withheld benefits was barred by SSI

(Edelman v. Jordan)(c) Exception: monetary relief may be sought from state officials depriving

plaintiffs of federal rights under state law (Hafer v. Melo)(2) Cases which are the “functional equivalent of a quiet title action”

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(a) Indian tribe may not sue a state and state officials claiming ownership of submerged lands (Idaho v. Couer d’Alene Tribe of Idaho)

iii) State is NOT real party in interest:(1) Discharged state employees sued the official who fired them under § 1983,

alleging they were fired on the basis of their political affiliations, and sought damages, SC says case can go through (Hafer v. Melo)

(2) State official is denying federal rights to others under color of state law(3) Cost of complying with court orders does not change this equation (see “relief

available”)c) Relief available:

i) Rule: courts can grant only give prospective injunctive relief(1) D can be ordered to follow the federal law in the future, but no retroactive

damages – (2) Distinguishes between suits brought in equity and law

(a) unclear where they get this distinction – 11th Amendment includes both(3) Monetary relief more directly affects the state’s treasury

ii) Exception: relief which is ancillary to prospective relief is allowed(1) Injunctions against state officials can be enforced by jail time or fines (Hutto v.

Finney)(2) Cost of complying with a court order is ancillary to judgment

(a) Suit against Arkansas correctional officials, claiming the conditions in the Arkansas prisons violated the 8th Amendment, could be enforced and costs imposed (Hutto v. Finney)

(3) costs and attorneys fees are okd) Counties and municipal governments have no sovereign immunity (Lincoln County v.

Luning)71) Suits Against States in State Courts:

a) States have absolute sovereign immunity under their own laws i) Federal courts have no power to grant relief for claims arising under state law

(1) Pennsylvania citizens with mental disabilities challenged their confinement in state institutions under the 8th and 14th Amendments, seeking state to conform its prisons according to state law, SC says this is a state law claim and has no power to grant relief under 11th amendment (Pennhurst State School & Hospital v. Halderman)

ii) States have sovereign immunity wholly independent of 11th amendment and actions of US congress(1) SSI not expanded or limited by the 11th Amendment

iii) State doesn’t implicitly consent to suit simply by engaging in otherwise lawful activities that are regulated by federal statutes (1) probation officers sued Maine in federal court for violating the overtime

provisions of the FLSA, seeking monetary and liquidated damages, SC says this is barred by SSI (Alden v. Maine)

72) Current method for abrogating SSI: § 1983a) Where suit is against a state official: 42 USC § 1983: whenever someone under color

of state law deprives any citizen of any right, privileges or immunities guaranteed under the Constitution shall be liable in an action at law (expressly, there is a right of action)

73) Congressional abrogation of SSI:a) Test: to abrogate SSI congress must…

i) unequivocally express intent to abrogate sovereign immunity(1) must be clear from the text of the statute?(2) The ADA validly abrogates state sovereign immunity insofar as it prohibits

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exclusion from public benefits or services on the basis of disability (Tennessee v. Lane)

(3) Congress validly abrogated state sovereign immunity in the provision of the FMLA requiring employers to provide 12 weeks of unpaid leave to care for sick family members (gender discrimination) (Nevada Department of Human Resources v. Hibbs)

ii) act pursuant to a valid exercise of power(1) Congress may abrogate SSI under its 14th Amendment powers

(a) Based on § 5 of 14th Amendment (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article”)

(b) Plaintiffs may get prospective monetary relief in title VII suit (employment discrimination) against a state (Fitzpatrick v. Bitzer)

(2) Congress may NOT abrogate SSI under any constitutional power which predated the 11th Amendment(a) Congress may NOT abrogate SSI under its Article I powers

(i) Seminole sued Florida and its governor under IGRA for failure to negotiate in good faith in creation of casino, SC says state immune from suit in federal court (Seminole Tribe of Florida v. Florida)

(b) Congress may not abrogate SSI under commerce clause powers(i) Seminole overruled Pennsylvania v. Union Gas Co. (federal agency

allowed to implead PA under a commerce clause statute)b) Final test: To use enforcement powers against states, congress must:

i) Identify conduct transgressing 14th amendment (1) Age discrimination not enough because subject to only rational basis review

under 14th amendmentii) Tailor its legislative scheme to remedying or preventing such conduct

(1) Congress passed a law expressly abrogating sovereign immunity for patent-related claims, but this was too far out of proportion to remedial goal of preventing infringment by states (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank)

c) In Rem jurisdiction:i) When the state acts as a creditor, it is not immune under in rem jurisdiction

(1) Trustee in bankruptcy is allowed to undo transaction that bookstore had gone into against the state (Central VA Community College v. Katz)

ii) Congress’s power to pass uniform bankruptcy law permits Congress to empower courts to issue ancillary orders enforcing in rem jurisdiction

iii) In ratifying the Constitution, the states acquiesced in subordination of sovereign immunity to effectuate the in rem jurisdiction of bankruptcy courts

iv) There is a special need for uniformity in bankruptcy law74) Policy:

a) Four possible theories of 11th Amendment:i) Official theory – states immune from suit unless waived (and ex parte Young

exception)(1) Good – long precedent, protects states(2) Bad – cuts against disjunctive theory of Article II, enforcement problems,

textual problemsii) Diversity theory – states have no pre-existing SI, can be sued in diversity like

anyone else(1) Good – federal courts can enforce federal law, historically sound, textually

plausible(2) Bad – leads to radical results, doesn’t account for word “any”

iii) “Literal” theory – do exactly what text says, suit can be brought against state

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by its own citizens, not by others(1) good – respects the text(2) bad – enforcement problem, leads to anomalous results

iv) Akhil Amar Theory (not really 11th Amend.) – states are not really sovereigns at all(1) In voting to ratify constitution, people of each state voted to give up their

sovereignty and merge into sovereign US as a whole(a) Can change constitution against the wishes of a particular state (see Art. V)

(2) States have control over their own law, but suing under federal law means that state no longer controls – if the “whole people” of US creates a cause of action under federal law in which states are suable, then they are

(3) For the federal gov’t: Should be a distinction between Constitutional claims and other claims(a) Congress passing statute is like states making state law - If under patent

law, federal gov’t is not suable, that’s fine – but this wouldn’t apply if suing under constitutional law (there, the “sovereign” has spoken)

b) How are states like and unlike the federal government for sovereign immunity purposes?i) Similar

(1) State and federal governments are politically directed, not-for-profit, and democratic

(2) States can’t be sued on the basis of laws they create, unless they consentii) Different

(1) If a state is sued in federal court, and judgment is entered against it, that judgment can be enforced by the federal government

(2) Explicit constitutional text provides for federal sovereign immunity, while Article III, § 2 provides that a state can be sued

c) Which side does history fall on?i) Brennan: History doesn’t support the idea that the Framers intended to

constitutionalize state sovereign immunity(1) Article III reveals that states are capable of being defendants(2) Constitutional Convention records don’t show substantial controversy over the

clauses concerning categories of federal cases(3) Mason and Madison suggested limits to state sovereign immunity during the

Virginia debates(4) Madison, Hamilton, and Marshall were referring to suit under the Contract

Clause for debts incurred during war, not sovereign immunity in general(5) Framers’ repeated references to the need for federal courts to exercise

extensive jurisdiction suggests that Congress could provide rights of actions of states, and federal courts could hear them

(6) Justices Jay and Wilson drafted Article III, and found in Chisholm that a state could be sued in federal court, and Justice Iredell didn’t argue that a state could never be sued in federal court

(7) A proposal for a broader interpretation of state sovereign immunity in the text of the 11th Amendment was rejected

d) Why can congress only abrogate SSI with powers enacted after 11th Amendment?i) Temporal rationale: since 14th amendment was passed after the 11th, it’s

understood to limit it. Since Art. I existed before, 11th modifies that/ overrules to some extent that part of Art. I

ii) PROF: This reasoning seems attenuated – no one thinks the 14th amendment sweeps away the 8th amendment

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Abstention

The Anti-Injunction Act75) Anti-Injunction Act [28 USC §2283]: A court of the United States may not grant an

injunction to stay proceedings in a State court except… a) as expressly authorized by Act of Congress, or

i) Test: congress must have created a specific and uniquely federal right or remedy, enforceable in federal court, that could be frustrated if the court wasn’t empowered to enjoin a state proceeding

ii) The court recognizes implicit authority granted by congress(1) History of § 1983, combined with vague language suggesting state court

should halt actions, were enough to find congressional intent for injunctive authority (Mitchum v. Foster)(a) § 1983 is a uniquely federal remedy meant to be used against states

b) where necessary in aid of its jurisdiction, or i) protecting federal rights is NOT the same as protecting federal jurisdiction

(Atlantic Coast Line RR Co.)c) to protect or effectuate its judgments.

i) A federal decision not to enjoin an activity does NOT justify overruling the injunction imposed by a state court on picketing labor protestors (Atlantic Coast Line RR Co.)

76) Interpretation of the AIA:a) “The specifically delineated exceptions in the Act are to be interpreted strictly”

(Atlantic Coast Line RR Co.)b) “The Anti-Injunction Act isn’t a flexible doctrine of comity – it imposes an absolute

ban on federal injunctions in state proceedings unless an exception applies” (Mitchum v. Foster)

c) State proceedings should ordinarily proceed without federal court intervention, with any relief from error to come from state appeals courts and the Supreme Court

d)77) Federal JD is presumed to be concurrent – exclusive only where Congress says it

is soa) Rule: The federal government will not enjoin a parallel proceeding in state court (see

“congressional control of jurisdiction” supra) i) Parallel actions for contract liability does not require federal courts to exercise

exclusive jurisdiction (Kline v. Burke Construction Co.)b) Exception: cases brought under in-rem jurisdiction

i) Reasoning: If jurisdiction is based on a piece of property, two courts cannot have conflicting judgments over the same physical piece of property

c) Exception: relitigation of issues decided in federal courti) Conversely, once a state court rules on an issue, the Full Faith and Credit Act

takes priority over this exceptiond) Exception: When the plaintiff is the U.S. or a federal agency and it asserts superior

federal interestse) Exception: federal injunctions may be granted in exceptional circumstances such as:

i) Where irreparable injury is both great and immediateii) Where state law flagrantly and patently violates express constitutional provisionsiii) Where there’s a showing of bad faith, harassment, or other unusual

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circumstances calling for equitable relieff) Exception: Federal courts can enjoin state court proceedings that interfere with

federal class actions78) Practical considerations for choosing federal/state court:

a) Location of the courthouse to lawyer’s office (amount spent is affected) b) Different discovery rules (lots of tactical maneuvering that goes on in trying to get a

case in a specific court)79) Policy:

a) Why was the Anti-Injunction Act passed?i) States retained powers that weren’t surrendered in ratifying the Constitution ii) Our 2 essentially separate legal systems couldn’t function if state and federal

courts were free to fight for control over particular casesb) If the state court gets it wrong, can always appeal to state appellate or to SC

i) State courts still play primary role in enforcing federal rights

Pullman Abstention80) "the federal courts should not adjudicate the constitutionality of state enactments

fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them." a) State court should be allowed to rule on discriminatory action by state Railroad

Commission requiring that no sleeping cars be operated on any line of any railroad in Texas unless they are continuously in charge of conductors (who were white) (Railroad Commission of Texas v. Pullman Co.)

81) Rule: Pullman abstention is allowed when there is an unsettled question of state law that, if resolved, could avoid the need for constitutional adjudication.a) Three necessary conditions for invoking Pullman:

i) The case presents both state grounds and federal constitutional grounds for relief;(1) A hard question of state law, without a constitutional issue, is insufficient to

allow a federal court to dismiss a case back to state court (Lehman Brothers v. Schein)

ii) The proper resolution of the state ground for the decision is unclear; andiii) The disposition of the state ground could obviate the need for adjudication of the

federal constitutional ground.(1) When state and federal law question are inexorably intertwined, no abstention

b) Exception: for action at law (for money), no Pullman abstention (Quackenbush v. Allstate Insurance Co.)

c) Exception: if a state constitutional issue is same to federal constitutional provision, no abstention necessary (Quackenbush v. Allstate Insurance Co.)

82) Procedural issues:a) A plaintiff bringing a suit in state court must inform the state court of the federal

issues in the case so the state court can decide questions of state law in light of any federal constitutional issues that may arisei) A party may reserve his right to return to district court for disposition of his

federal claims if state courts hold against him on state law, so long as he invokes Windsor

ii) A litigant isn’t denied the right to return to district court unless it’s clear he voluntarily did more than Windsor requires and fully litigated his federal claims in state court (Government Employees v. Windsor)

b) Once the state court has ruled on a claim, Pullman no longer applies and any federal court may hear iti) in federal court for an injunction and declaration that a Louisiana law was

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unconstitutional as applied, and the district court abstained in accordance with Pullman, England sued in state court and lost on both the state law and constitutional claim, Rather than seeking Supreme Court review, England returned to federal district court to attempt to argue his federal constitutional claim, SC says federal court must now hear it (England v. Louisiana State Board of Medical Examiners (1964))

83) Certification procedure:a) Can make a reservation in state court to the resolution of your federal claim by the

state court, then you can definitely go back to federal court after the state law issue has been resolved (England v. Louisiana State Board of Medical Examiners)i) even if you don't make such a reservation, you can usually go back to fed. court

b) Certification procedure has effectively replaced the use of Pullman abstention. 84) If state and federal constitutions raise the same issue, courts should not abstain85) Policy:

a) core reasons for abstention: appropriate for fed court to abstain where case presents difficult Q of state law which could avoid the necessity of deciding the federal questioni) If decided, can go back to federal court for deciding the question

b)

Younger Abstention86) federal courts may not hear civil rights tort claims brought by a person who is

currently being prosecuted for a matter arising from that claim in state court87) Rule: no federal court is to issue an injunction or issue a declaratory judgment

against a pending state criminal proceedinga) Always applies to criminal prosecutions?

i) Jehovah’s Witnesses wanted to go door-to-door in Jeanette, Pennsylvania, and the city adopted an ordinance requiring all solicitors to obtain a license and pay a tax, Douglas was arrested, prosecuted, and threatened with further arrests and prosecutions. SC says court must abstain because no threat of injury beyond normal criminal proceedings (Douglas v. City of Jeannette)

b) Applies to certain civil proceedings where there is significant state interestsi) civil nuisance case against owners of porn theater (Huffman v. Pursue, Ltd.)ii) State has an interest in enforcing the orders and judgments of its courts after

plaintiffs sought federal injunction of state court judgment against oil company (Pennzoil Co. v. Texaco, Inc.)(1) NOTE: Texaco was prejudiced by its failure to raise federal constitutional issues

during state trial so federal court didn’t know if it should take jurisdictioniii) Nuisance proceeding against the owner of an adult movie theater was sufficiently

criminal in nature (Huffman v. Pursue, Ltd.)iv) Child custody cases?v) NOTE: possibly applies to all state proceedings now

88) Younger Exceptions (no abstention):a) Law flagrantly and patently violates constitutional provisions

i) First Amendment claims are subject to a lower bar because of the chilling effect of these laws(1) The plaintiffs sued the Louisiana governor and other state officials to enjoin

prosecution on grounds that state law facially violated the 1st Amendment Free Speech Clause, SC does NOT abstain even though defendant probably guilty in this case (Dombrowski v. Pfister)

b) Brought in bad faith by the prosecutor

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c) Cases where state prosecution is threatened but not actually pending i) Petitioners distributed handbills protesting involvement in the Vietnam War

outside a shopping center, and personnel asked them to stop and leave, Police were summoned and told the group they would be arrested if they didn’t leave, 2 days later, Steffel and a companion resumed handbilling, and the police intervened, Steffel left to avoid arrest, but his companion remained and was arrested, SC says threat but no prosecution meant feds could hear the claim (Steffel v. Thompson)

ii) Three previous free speech prosecutions over the course of five weeks were sufficient (“live free or die”) (Wooley v. Maynard)

iii) Members of the Progressive Labor Party joined the suit, claiming that Harris’s prosecution could inhibit peaceful advocacy of their agenda, and a history professor joined, claiming that prosecution made him unsure if he could teach Marxism, SC says these are not relevant because there has been no threat or arrest (Younger v. Harris)

d) However, once charges are filed Younger applies, even if federal complaint was filed first and no significant proceedings have taken place i) No criminal proceedings were pending against the proprietor by name when the

complaint was filed, but because 2 of his employees were charged and 4 copies of the movie were seized from him, he had a sufficiently substantial stake in the proceedings, but federal court had to abstain (Hicks v. Miranda)

89) Remedies available:a) Can seek prelim injunction to stay prosecution

i) Standard for fed court issuing an injunction is abuse of discretion, isn’t subject to the restrictions of Younger because a plaintiff may challenge the constitutionality of state law in state court (Doran v. Salem Inn, Inc.)

ii) However, Declaratory judgment has virtually the same practical impact as a formal injunction, so when granting an injunction would be inappropriate, declaratory relief should ordinarily be denied as well (Samuels v. Mackell)

b) Declaratory judgment has a less intrusive effect on administering state law, and can be granted more readily i) federal declaratory judgment isn’t precluded if no state prosecution is pending

and the federal plaintiff demonstrates genuine threat of enforcement of a disputed state criminal statute (Steffel v. Thompson)

90) Policy:a) Equity: Have always needed to show lack of an adequate remedy at law before

injunctions could be issuedb) Comity: For state court courts of general jurisdictionc) Federalism: Avoid needless interference of federal courtsd) Separation of powers: State courts haven’t had a crack at it

i) “On-face” challenges are not how fed courts are supposed to workii) Court should be resolving concrete disputes, not “roving” through statute books

and deciding what’s constitutionaliii) This is more like issuing an advisory opinion

e)

Habeas Corpus The Federal statutes:

28 USC § 2241: Power to Grant the Writ

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28 USC § 2243: Issuance of writ, hearing, decision 28 USC § 2254: State custody; remedies in federal court 28 USC § 2255: Federal custody; remedies on motion attacking sentence

1996 AEDPA (28 USC § 2254): HC shall not be granted to a person in state custody as the result of a state court judgment with respect to a claim adjudicated on the merits in a state court 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 Supreme Court.

Extrajudicial Detention91) Until recently, this didn’t come up very often (used to be if INS tried to deport you)

a) Now, Guantanamo Bay situations92) Rule: If a person is held without charge, habeas corpus proceedings may be brought

in federal court to test the lawfulness of the detentiona) Federal and state governments rarely assert a power to restrain without criminal

charge93) O’Connor made up the standard based on Matthews v. Eldridge

a) the process due is determined by weighing the private interest that will be affected by the official action against the government’s asserted interest, including the function involved and the burdens the government would face in providing greater process

b) Evaluate the risk of an erroneous deprivation of the private interest if process were reduced and the probable value of additional or substitute procedural safeguards

c) A citizen-detainee challenging his classification as an enemy combatant must receive notice of the factual basis for his classification and a fair opportunity to rebut the government’s assertions before a neutral decision-maker

d) Evidentiary rules can be relaxed, and there can be a presumption in favor of the government’s evidence

e) In Hamdi v. Rumsfeld (2004) O’Connor says that as per § 2241, a detainee may, under oath, deny facts set forth in the return or allege other material facts, take evidence by deposition, affidavit, or interrogatories, and present and rebut facts was sufficient process for quantanemo detainees held under AUMF

94) Scalia dissent in Hamdi:a) relevant question is whether there’s a special procedure for imprisoning a citizen

accused of wrongdoing by aiding the enemy in wartimei) In such cases, citizens aiding the enemy should be tried for treason

b) The President has historically secured Congress’s explicit approval of a suspension of habeas corpusi) The text of the Habeas Corpus Act of 1679 makes this clear

c) Milligan – rejected the assertion that military assumption of jurisdiction is acceptable under the “laws and usages of war”

d) Quirin – it was uncontested petitioners were members of enemy forcese) Absent suspension of the writ, a citizen held when the courts are open is entitled to a

criminal trial or judicial decree ordering his releasei) The AUMF isn’t sufficiently clear to constitute suspension of the writ

The Basic Rule and Factual Issues95) Rule: there are no Habeas petitions available for civil judgments96) Rule: Federal Court may grant Habeas petitions when there is a federal

constitutional defect in a state trial

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97) Basic procedural requirements:a) The prisoner must be in custodyb) The prisoner must have exhausted available state remedies

i) If the state’s highest court has discretionary power to review decisions of lower state courts, the prisoner must apply for such review

c) The prisoner must satisfy the statute of limitationsi) AEDPA sets a 1-year limitations period for persons in custody pursuant to a state

court’s judgmentii) Runs on the latest of 4 possible dates, the most common is

(1) the date the judgment became final by conclusion of direct review or (2) expiration of the time for seeking habeas review

d) In most cases, the prisoner must not be presenting a successive petition i) Successive habeas petitions not presented in prior petitions should be dismissed

unless:ii) The claim is based on a new rule of law the Supreme Court has made retroactive

to cases on collateral review; oriii) The claim is based on facts that couldn’t previously have been discovered and

that would be sufficient to show that, but for constitutional error, no reasonable fact-finder could have found the prisoner guilty of the underlying offense

98) Adjudication of factual issues:a) Old Rule (Townson v. Sain):

i) Evidentiary hearings(1) Basic Rule: evidentiary hearing is always available, but only mandatory in

cases where the state court proceeding did not fully and fairly litigate the facts(2) In certain situations, the federal judge must hold an evidentiary hearing:

(a) the merits of the factual dispute were not resolved in the state hearing, either at the time of the trial or in a collateral proceeding;

(b) the state factual determination is not fairly supported by the record as a whole;

(c) the factfinding procedure employed by the State Court was not adequate to afford a full and fair hearing;

(d) there is a substantial allegation of newly discovered evidence; (e) the material facts were not adequately developed at the state court

hearing; or (f) for any reason it appears that the state trier of fact did not afford the

applicant a full and fair fact hearing. Pp. 372 U. S. 312-318.(3) In all other situations, the federal judge “has the power to receive evidence

and try the facts anew” at his discretionb) New Rule (§ 1996):

i) A federal court shouldn’t hold hearing unless:(1) Claim relies on new rule of constitutional law, OR(2) Factual predicate that could not have been previously discovered through the

exercise of due diligence(a) Test: whether petitioner “failed” to develop his/her claim(b) Failure means the plaintiff is at fault

(i) Habeas petitioner was not at fault for juror bias, thus his Habeas petition could move forward on that ground (Michael Williams v. Taylor)

99) Standard of review:a) Rule (AEDPA): HC shall not be granted unless a decision was

i) contrary to, or ii) involved an unreasonable application of,

(1) “unreasonably” does NOT mean simply wrong but means no “reasonable

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jurist” could reach that conclusion (Williams v. Taylor)b) clearly established Federal law, as determined by the Supreme Court

i) must be clearly established at the time of the State Court convictionii) must have been established by the Supreme Court

c) Practical effect:i) Eliminates Teague exceptions, limits Habeas grants to the text of AEDPA

100) Policy:a) Statute requires the federal courts to do thisb) HC inherent in liberty and democracy

i) Fay v. Noia, (US 1963): res judicata doesn’t apply because the court is only acting on the body of the D, not attacking the prior judgment

c) Supreme Court’s review is discretionary, don’t have time to deal with all the casesd) Takes the primary view of the fed courts protecting fed rightse) Did the SC in Williams v. Taylor intend to overrule Teague?

i) Stevens: No. If a decision is wrong, it’s contrary to federal law (whether or not it’s really, really/ unreasonably wrong)(1) Regardless of text, this interpretation is ridiculous – why would Court uphold a

ruling that is wrong?(2) Standard of review is usually de novo (no comparative expertise)

(a) This is like Chevron deference – deference given interpretation is reasonable

(b) There, deference promotes uniformity(c) Here, courts giving deference promotes disuniformity

ii) O’Connor: Yes. What else would “unreasonable application” do in that case? Must be “contrary” and “unreasonably so”?(1) Never want to render part of a statute superfluous

Good Bad- Detention requires justification- Federal judges should enforce federal

rights b/c of life tenure- Protects federal rights- More consistent results from allowing

federal courts to decide (fewer fed courts, applying same law)

- Extra incentive to state courts to get things right

- Adds to workload of the federal courts- Undermining the state efforts to enforce

their own criminal laws- Inefficient- Distrust of state judges to apply

constitution- Frustrates states b/c of ambiguity of 14th

amendment- Contrary to res judicata; second chance- Undermines finality- Contrary to courts’ own abstention

doctrines- Criminals “go free” (though state has

option of retrying the defendant)- Meritorious claims are harmed by being in

flood of frivolous claims

Cognizable Claims101) Rule: 4th amendment claims are not cognizable in Habeas petitions

a) Exclusionary rule isn’t in 4th Amendment – not a personal constitutional right (meant to be preventative, not corrective) (Stone v. Powell)

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b) Fails the prudential balancing test of the 4th Amendmenti) Benefit: prevents officers from conducting illegal searchesii) Cost: Lets guilty Ds go free - Benefits no longer outweigh the costs

102) Rule: pure “claims of innocence” are not cognizable in Habeas proceedingsa) Claims of innocence cannot be the sole claim in a Habeas petitionb) Exception: Court has stated that “truly persuasive” claims of innocence might be

cognizablec) Exception: FC will still look at claims of clearly erroneous appellate review

i) However, if there was any rational basis for conviction, then can’t be overturned103) Policy:

a) What is the purpose of HC proceedings?i) Powell: safeguard against putting innocent people in jail

(1) Response: structural differences (no life tenure, elections, ect.) might not make state judges as bold as their federal counterparts

ii) Brennan: to vindicate/safeguard constitutional rightsb) Why does the Supreme Court distinguish between different types of constitutional

violations for HC proceedings?i) Burger: doesn’t like exclusionary rule in the first place, so especially doesn’t like it

in HCii) Powell: state courts are just as capable of deciding federal questions as federal

courtsiii) Brennan: HC statute doesn’t distinguish between types of constitutional violations

(1) Fears that this will be a slippery slope – that HC will be lost for other claims as well – Miranda violations, double jeopardy, etc. (not guilt-related claims)

(2) Not based on person’s factual innocence (serve to vindicate other federal rights that don’t go to substantive charge of the crime)(a) Claim of being tried before for the same defense has nothing to do with

your guilt before(3) Majority does suggest that this is all about guilt v. non-guilt related:

(a) “Innocent man”; “convicted defendant is usually not related to basic justice of incarceration”

c) why no claims of innocence?i) There’s always executive clemency

New Rules and Standard of Review1) Rule: An individual may not seek to enforce a new rule of law in federal habeas corpus

proceedings if the new rule was announced after the petitioner’s conviction became final a) Additionally, Habeas petitioners may not seek to establish a wholly new rule or to

apply a settled precedent in a novel way that would result in the creation of a new rule.

2) Exceptions: new rules may be applied retroactively to final convictions IF the rule…a) places “certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.”i) I.e., sodomyii) Batson was more about procedure, whereas this is about whether what you did

could be criminalized at allb) requires the observance of “those procedures that... are implicit in the concept of

ordered liberty.’”i) Has to be a fundamental, watershed new rule about the accuracy of your

convictionii) Must be truth-related

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3) Practical effect:a) Procedural consequence: If a rule won’t apply retroactively to all persons similarly

situated (Habeas petitioners), FC won’t even look at it4) Policy:

a) Is the court’s method of analysis here backwards?i) Stevens: courts do this all the time with harmless error – first decide whether

there’s an error in the criminal case, and then decide whether or not it’s harmless(1) Strictly following the logic in Teague, seems you should first figure out if there

was harmless error, and then decide whether it was truly errorii) Brennan: Court should decide merits of the claim, then later figure out whether it

applies retroactively, and should be decided in favor of Teague(1) Even if others similarly situated wouldn’t get the benefit, should still give as

much justice as possible to Teague

Procedurally Defaulted Claims5) Old Old Rule (Daniels v. Allen):

a) Federal Courts cannot reverse a state court decision when there was an adequate and independent state law groundi) Court can’t rule on federal issue where there is a mixed claim because it wouldn’t

change the judgment (for one which is also supportable on the state issue)ii) would just be an advisory opinion

6) New Old Rule (Fay v. Noia):a) A prisoner’s “default” under state procedure does not bar a Habeas petition unless

the prisoner deliberately bypassed the appeal to play the systemi) Even here, judge can use his discretion not to bar the petition

b) Policy: This isn’t an appeal – just ordering state court to release the prisoner7) Current Rule (Wainwright v. Sykes):

a) Where there was a waiver at trial, HC should be barred unless P can show:i) Cause for failing to object AND

(1) Brady violation (prosecutor not turning over exculpatory evidence) is typically good cause

(2) Screw-ups by counsel are typically not good cause(a) Can still make ineffective assistance of counsel claims

(3) Relying upon existing law is good cause(a) If the rule you were relying upon didn’t exist at the time, you have good

causeii) Prejudice to the decision

b) Exception: actual innocencei) Not by itself a basis for HC, but if there’s evidence of actual innocence, this

excuses you from meeting the Cause and Prejudice standardii) Defined very narrowly

c) Policy:i) Respect for the contemporaneous objection ruleii) Fay v. Noia encourages sandbagging

(1) If you don’t bring it up, you could be acquitted – if you get convicted, you can then bring it up later and get it washed out

iii) If courts didn’t respect COR, state courts might be less likely to enforce itiv) Leads to state trial being the “main event”v) Brennan: Real reason for failure to raise these is that attorneys are ignorant and

incompetent, ridiculous to assume that there’s sandbagging(1) Better to take your best shot in state court and get HC review – HC review can

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be a lot less favorable than raising your claim at the right time(2) Shouldn’t discipline client for lawyer’s flaws

8) Statute of limitationsa) One year after

i) Cert denied by SCii) Or decide not to seek cert.

b) Only have to make it through the state appeals process for your decision to be finali)

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