THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
74 Va. L. Rev. 1141
Virginia Law Review
October, 1988
THE IDEOLOGIES OF FEDERAL COURTS LAW
Richard H. Fallon, Jr.a
Copyright 1988 by the Virginia Law Review Association; Richard H. Fallon, Jr.
TABLE OF CONTENTS
INTRODUCTION
I. TWO MODELS OF JUDICIAL FEDERALISM
A. The Federalist Model
B. The Nationalist Model
II. JURISPRUDENTIAL CONFLICT
A. Respect for State Judicial Proceedings
1. Injunctions Against State Judicial Proceedings
2. Res Judicata and Collateral Estoppel
3. Habeas Corpus
a. Relitigation
b. Procedural Defaults and Precluded Claims
B. State Sovereign Immunity and the Eleventh Amendment
1. Scope of the Young Fiction
2. Abrogation of State Sovereign Immunity
C. State Court Powers and Obligations
1. State Court Remedial Power
2. State Court Obligations to Accept Jurisdiction
D. Congressional Control of Federal Jurisdiction
1. Article III Issues
2. ‘External’ Restraints on Congressional Power
E. A Summary Diagnosis
III. PRESCRIPTION: LAW BETWEEN THE POLES
A. Choice Between the Models
B. Renunciation of the Models
C. Toward a Model-Free Jurisprudence?
D. Adjudication Between the Poles
1. Between Mitchum and Younger
a. The Mitchum Issue
b. The Younger Issue
2. Other Issues from Between the Poles
a. Respect for State Judicial Proceedings
i. Res Judicata and Collateral Estoppel
ii. Habeas Corpus
b. State Sovereign Immunity and the Eleventh Amendment
c. State Court Powers and Obligations
i. Powers
ii. Obligations
d. Congressional Control of Federal Jurisdiction
E. The Judicial Role in the Separation of Powers
CONCLUSION
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1195
1199
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*1142 INTRODUCTION
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
THE law of judicial federalism1—an important subset of the standard federal courts curriculum—is wracked by internal
contradictions. The problem is not simply the incompatibility of results in decided cases, though it is partly that. The
difficulty grows from the availability and acceptance, within the law, of inconsistent sets of *1143 assumptions to guide legal
analysis.2 This is an essay about two leading sets of incompatible assumptions, which I shall refer to as ‘models,’3 that tend
to dominate debates about judicial federalism. My subjects are the nature of the models’ influence on thought about federal
courts issues and the role that the models play in producing a conflicted and self-contradictory body of law.
The defining premises of one of the models should be familiar, because they informed much, if not all, of the early editions
of the influential Hart & Wechsler casebook4 and can be traced to the justly admired writings of Professors Henry Hart 5 and
Paul Bator.6 This Federalist model, which also is the model most often dominant in Supreme Court opinions, has its roots in a
theory of the understandings that surrounded the framing and ratification of the original Constitution in 1787 and 1788. When
a Federalist vision of original text and history provides the interpretive framework for federal courts questions, states emerge
as sovereign entities against which federal courts should exercise only limited powers, and state courts, which *1144 are
presumed to be as fair and competent as federal courts, stand as the ultimate guarantors of constitutional rights.7 These
Federalist assumptions8 resonate in numerous constitutional decisions, including many of those defining the constitutional
scope of state sovereign immunity and fixing the meaning of the eleventh amendment. 9 Federalist postulates also inform
many of the Supreme Court’s attempts to identify congressional intent under controverted jurisdictional statutes. In cases of
doubt, the Court commonly reasons that Congress would have intended to respect state interests associated with the
performance of traditional sovereign functions and especially to prescribe deference to state judicial proceedings. 10
But the Federalist model does not and could not control the entire field of federal courts jurisprudence. Most conspicuously,
it fails to explain doctrines that reflect a divergent theory of federalism that minimizes the significance of state sovereignty in
comparison with national interests and that posits a constitutional and statutory preference for federal over state courts as the
guarantors of federal rights.11 Like its Federalist rival, this Nationalist model claims foundations in early constitutional
history,12 but it also emphasizes the vast reordering of federal relations inaugurated by the Civil War and Reconstruction. 13
*1145 A Nationalist model of judicial federalism furnishes as plausible a set of assumptions to guide federal courts decisions
as does the Federalist vision. Moreover, its power is attested in leading Supreme Court cases that reason from its premises
that state sovereignty interests must yield to the vindication of federal rights 14 and that, because state courts should not be
presumed as competent as federal courts to enforce constitutional liberties, rights to have federal issues adjudicated in a
federal forum should be construed broadly.15
This Article uses the Federalist and Nationalist models, which Part I elaborates in greater detail, to illuminate a number of
areas of conflict and contradiction in the law of judicial federalism. As the argument unfolds, the models play three roles.
First, they function as ideal types of rhetorical structures. In explaining their positions, judges and commentators frequently
appeal to the premises about judicial federalism that the models embody. The models thus help to capture, and at the same
time to explain and unify, much of the rhetoric of federal courts debates.
Second, the Nationalist and Federalist models serve as ideal types of structures of thought about issues of judicial federalism.
Issues of judicial federalism assume diverse forms. Some are constitutional: Which suits against the states are excluded from
the federal judicial power by the eleventh amendment? Must Congress vest some or all of ‘the judicial power of the United
States’ in either lower federal courts or the Supreme Court? And are state courts precluded by the Constitution from awarding
particular remedies against officials of the national government? Other issues are statutory: What powers and responsibilities
has Congress given the federal courts under various jurisdictional and remedial statutes—for example, under the law that
provides for federal habeas corpus review of state criminal convictions? What duties and limitations do federal statutes
impose on state courts? Still others involve judge-made law: How ought the federal *1146 courts, as a matter of equitable
discretion, to temper the exercise of jurisdiction against the states and their officials?
On the surface, these questions might appear to have no more in common than this: each can be answered in a way that
would tend to invest relatively more or less power in the federal judiciary and, correlatively, would call for the allocation of
more or less judicial business to the courts of the states. But the possibility of divergent answers is not merely hypothetical.
Each of the listed questions is a live one, to which the answer is much debated. Moreover, there seems to be a tendency, at
least among prominent judges and theorists, to answer most or all of the questions in interestingly consistent ways. Serious
thinkers about federal courts issues frequently conclude either that the federal judicial power is very broad in nearly all cases
or, alternatively, consistently reach decisions that would narrow federal judicial power relative to that of the state courts.
Prominent among those generally propounding a Nationalist line are Justices William Brennan and Thurgood Marshall,
Judge John Gibbons, and Professor Akhil Amar. Those who espouse the Federalist model with relative consistency include
Chief Justices Rehnquist and Burger, Justices Harlan, Frankfurter, and Powell, and, as noted above, Professors Hart and
Bator.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Although it is by no means a startling revelation that many judges and scholars tend to divide predictably in their analyses of
federal courts issues, it is worth pausing to consider why disagreements over seemingly diverse questions are apparently so
systematic. A not implausible ‘realist’ view would be that judges tend to reach results that they find politically congenial and
then invoke whatever justificatory framework best supports their preferred outcome. 16 According to this interpretation,
modern ‘conservatives’ will generally, although not always, invoke the Federalist model; ‘liberals’ will gravitate to the
Nationalist model, but will depart from it when Federalist rhetoric better rationalizes a liberal decision. 17 This explanation
*1147 is perfectly consistent with the models’ role as ideal types of rhetorical structures, and it provides the most plausible
account of some important Supreme Court decisions. 18 Nonetheless, it would be a reductionist mistake to view federal courts
arguments as nearly always being crudely political ones in which judges and theorists claim for their predilections the status
of the law.19 Functioning as ideal types of structures of thought, the models do not deny the significance of ideological
orientation, but illuminate the way in which ideology exerts its influence. At least for some serious federal courts thinkers,
deep structures of understanding may determine the resolution of many questions.
Imagine, for example, a judge considering whether the eleventh amendment bars federal jurisdiction of all suits against
unconsenting states or only of suits in which jurisdiction is predicated on the basis that a state is a party.20 Nearly all
commentators who have studied this question agree that the historical evidence is mixed and that the textual language could
support either conclusion. This does not mean that one anser is as good as another. But it does raise a question about how the
conflicting evidence should be assessed. Although that question has no simple answer, it is accepted practice to test the
plausibility of conclusions, and thus indirectly the persuasiveness of evidence itself, by their fit with stable theories or
assumptions about the surrounding legal universe. 21 What, for example, were the prevailing assumptions about the nature of
state sovereignty at the time of the *1148 Constitution’s framing and the subsequent adoption of the eleventh amendment?
Because bits of historical evidence cannot be assessed except against a broader background, much of the power of the
Federalist and Nationalist models lies in their capacity to provide a general theory of the historical nature of judicial
federalism.
But how, the question might be pressed, are background historical theories developed? Or, to sharpen the question: Is the
framing of historical theories of American federalism—at least when those theories are developed for use in legal and
constitutional analysis—typically unaffected by the normative preferences of the interpreter? For better or worse, 22 the
answer to the latter question, within our legal tradition, is pretty clearly negative. For one thing, it is difficult if not
impossible to approach historical problems without imposing analytical schemes that reflect contemporary concerns and
preferences.23 For another, our traditions of constitutional and statutory interpretation, which accord relevance to original
meaning and intent but do not always regard them as controlling varibles, 24 encourage the search for a ‘usable past.’25 In the
face of reasonable uncertainty about historical understandings, legal interpreters tend to prefer conclusions that accord with
their conceptions of good social policy.26 The Nationalist and Federalist models thus embody understandings of
constitutional history that are influenced by political preconceptions and preferences. Moreover, to the extent that policy
analysis explicitly enters the interpretive matrix, the models locate particular problems within general theories of judicial
federalism that provide systematic justifications for a broad pattern of results. It is impossible to measure how far the
Nationalist and Federalist models reflect the *1149 actual thought processes of individual thinkers. Nonetheless, legal
analysis is a philosophically and psychologically complex process that can be interestingly illuminated by attention to the
deep assumptions on which arguments frequently depend.
The third function of the Federalist and Nationalist models, related to but distinct from their role as ideal typical structures of
thought, is to provide an index of what is at stake in particular federal courts debates. Although federal courts disputes often
turn on highly technical and occasionally arcane considerations, 27 they commonly implicate recurring issues of political and
ideological concern. The Nationalist and Federalist models spotlight some of those recurring issues. For example, the models
call attention to the extent to which assertions of state sovereignty interests are credited in various contexts and to when state
courts are, and when they are not, presumed to be as fair and competent as federal courts. Even if they did not reflect
common structures of throught about federal courts issues, the Federalist and Nationalist models would therefore provide a
basis for interesting comparisons.
By assigning multiple roles to the Federalist and Nationalist models, this Article sacrifices conceptual neatness and even
some degree of descriptive precision. If the models were used solely as ideal types of rhetorical structures, the assertion that
an opinion or article reflected a Federalist or Nationalist perspective would imply no claim concerning the processes of
reasoning that lay behind it. By contrast, to the extent that the models are structures of thought, their invocation implies that
the thinking of judges or scholars approaches the ideal types. Finally, in their capacity as measures of the implications of
particular assumptions and values, the models do not purport to reflect either the rhetoric of particular decisions or the
structures of thought that underlie them. As a result, my mixture of analytical modes introduces ambiguity into some of my
claims that particular arguments and opinions reflect the Nationalist and Federalist models.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Having struggled with other approaches, however, I believe that assigning the models mixed roles ultimately proves more
illuminating *1150 than would any more restrictive alternative. If the models have one function that is more important than
the others, it is that of reflecting recurring rhetorical structures; the models capture the rhetoric of many federal courts
debates. But once the models are developed as ideal types of rhetorical structures, they proffer illuminating explanations for
patterns of decisions by particular judges, justices, and commentators on issues that otherwise seem unrelated. And the
rhetorical structures are sufficiently common to make it interesting and useful to keep a tally of how well particular results
accord with Federalist and Nationalist prescriptions. Moreover, as long as the rhetorical structures of Nationalism and
Federalism remain prominent, decisions rendered in more tempered rhetoric will invite reinterpretation as expressions of
Nationalist and Federalist ideology. In sum, the three functions of the models are not easily separated, and each yields
insights. A residual uneasiness notwithstanding, the ambiguities introduced are thus, in my judgment, more than compensated
for.
In this Article I deploy the Federalist and Nationalist models in pursuit of three main goals: description, diagnosis, and
prescription. The first of these purposes is easily explained. I have suggested already that the Federalist and Nationalist
models can sharpen understanding of the conflict and contradiction embodied in present law and of the tendencies of thought
that produce them. Demonstration of the law’s intermittent acceptance of contradictory assumptions suggests the instability
of particular results and doctrines. Whatever the law may be today, adoption of different analytical premises could lead to a
reversal tomorrow. The Federalist and Nationalist models also cast particular decisions and doctrines in new light. When
recognized as expressions of a powerful theory of judicial federalism, some arguments gain new power. Others weaken as the
contestability of their foundations is revealed.
My diagnostic aim is to reach a critical assessment of the models and of their role in producing an internally conflicted and
contradictory body of law. Despite their power and allure, the Federalist and Nationalist models are both too extreme in their
exclusion of the other’s insights. Each, I shall argue, captures a part, but only a part, of the truth about judicial federalism. It
is for this reason that both models persist and that neither is likely to triumph completely over the other. But if both models
embody part of the truth about judicial *1151 federalism, then a diagnosis of the current predicament of federal courts law
must recognize that the Federalist and Nationalist models represent tendencies to rhetorical excess. Both conduct to
proclamations that too far exalt one set of assumptions and values and too far diminish another. The inevitable result is
doctrinal contradiction and unpredictability.
My critical or diagnostic conclusions yield the prescriptions that it is my third main purpose to provide. The first prescription
is that the Federalist and Nationalist models ought to be abandoned as rhetorical structures. Arguments and conclusions ought
to be expressed in terms that do not exaggerate the insights of either the Nationalist or the Federalist model and trivialize the
claims of the other. Relatedly, insofar as the Nationalist and Federalist models function as structures of thought, they ought to
be rejected on the ground that each is excessively one-sided in its approach to complex questions. Needed are structures of
thought and rhetoric located between the Nationalist and Federalist poles. A between-the-poles approach to questions of
judicial federalism would acknowledge and even celebrate tension between Nationalist and Federalist values. In light of the
richness of American federalism, conflict is inevitable, healthful, and desirable. 28 But if tension is welcome in federal courts
law, unidimensional analysis and doctrinal contradiction are not.
Part I of this Article develops the Federalist and Nationalist models in greater detail. Part II traces their implications through
a variety of federal courts issues. Part III draws critical conclusions about the models’ current roles and offers prescriptions
for a better reasoned and more coherent body of law.
I. TWO MODELS OF JUDICIAL FEDERALISM
A. The Federalist Model
The Federalist model takes as its analytical starting point a vision of the federal system that it attributes to the framers of the
original Constitution and the first eleven amendments. 29 The model’s methodology *1152 is historical and structural.30 The
model relies heavily on an interpretation of original intent, and the intent that matters most refers to constitutional structure.31
At the center of the Federalist model stand four premises that define the framework within which individual questions are
answered.
Premise 1: Within the constitutional scheme, the states retain many of the prerogatives and responsibilities, and therefore
must enjoy at least some of the immunities, associated with the concept of sovereignty. This premise rests partly on inferences
from constitutional structure and partly on an interpretation of constitutional history. Seen in a Federalist light, the
Constitution is most importantly a document that allocates power among entities of government.32 This is not to deny that the
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Constitution also provides direct guaranties of individual liberties. But from a Federalist perspective, federalistic
decentralization not only promotes values of democracy and local control but also functions as a safeguard of fundamental
freedoms.33 According to a Federalist account, the authors of the original Constitution set out to create a national government
adequate to meet national concerns. But, equally significant, the framers continued to view the states as *1153 important—
indeed, in many ways as the primary—entities of government.34 The Federalist model emphasizes that the framers delegated
only an enumerated set of functions to the national government. 35 In contrast, the states were left the ‘responsibility for
dealing, and . . . the authority to deal, with the whole gamut of problems cast up out of the flux of everyday life.’ 36 Viewed
from a Federalist perspective, the tenth and eleventh amendments ratify these understandings. The tenth amendment,
providing that powers not delegated to the national government ‘nor prohibited . . . to the States, are reserved to the States
respectively, or to the people,’37 supports Federalist arguments that the national government may not intrude on the states’
traditional sovereign functions.38 Federalists similarly regard the eleventh amendment,39 which limits federal jurisdiction in
suits against unconsenting states, as embodying a fundamental principle of state sovereign immunity. 40
Premise 2: State courts are constitutionally as competent as federal courts to adjudicate federal issues and to award
remedies necessary to vindicate federal constitutional norms. Behind this premise lies an account of the ‘Madisonian
Compromise’—the plan that resulted in agreement regarding the most disputed provision of article III. Despite general
agreement at the Constitutional Convention that there should be a national judiciary, consisting at least of a Supreme Court, 41
divisions emerged over whether federal trial courts would interfere unduly with the jurisdiction of the state courts. 42 To
resolve *1154 the impasse, James Madison proposed a compromise43 that left the creation of lower federal courts to the
discretion of Congress. The Madisonian Compromise was then adopted overwhelmingly.44
From a Federalist perspective, the Madisonian Compromise implies that state courts enjoy parity of constitutional
competence with the lower federal courts. If state courts were inadequate to perform any of the judicial functions that can be
invested in federal courts, then Congress’s option to rely on state trial courts would be practically eviscerated. A Federalist
model derives further support for this conclusion from the language of the supremacy clause,45 which states that the
Constitution, laws, and treaties of the United States ‘shall be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’46
The first two premises assert propositions that the Federalist model views as immanent in constitutional history or text. Two
additional premises prescribe that Federalist understandings of constitutional structure should inform interpretation of
congressional intent and the fashioning of judge-made law.
Premise 3: Absent clear evidence to the contrary, it should be presumed that Congress, in enacting jurisdictional legislation,
regards the state courts as being as competent as federal courts to adjudicate federal issues fairly and expeditiously.
Premise 4: Absent clear evidence to the contrary, federal judges should assume that state courts are as fair and competent as
federal courts in the enforcement of federal constitutional norms and should craft doctrines of judge-made law accordingly.
*1155 Theories of constitutional structure and of congressional psychology ombine to support the third premise. The
psychological thesis posits that Congress ordinarily legislates consistently with the assumption of state court parity that
underlies article III and the supremacy clause. The theory of constitutional structure also indicates that all reasonable doubts
should be resolved in favor of congressional intent to respect the competence of state courts. Believing that the Constitution
presupposes the state courts’ fitness to serve as ‘the primary guarantors of constitutional rights, and in many cases . . . [as] the
ultimate ones,’47 Federalists insist that Congress, if it wishes to depart from the presumption of state court parity with federal
courts, should at least bear the burden of saying so clearly.
Similar arguments undergird the fourth premise. One arises from a view of the dignity of the states in the constitutional
scheme. It prescribes that the states generally ought to be free to apply federal law in their own courts, subject to Supreme
Court review, but without being embarrassed or hampered by federal judicial action that implies a distrust of state judges.
Several instrumental arguments also counsel federal judicial deference to state courts and their judges. First, state courts
frequently are ‘closest to the problem at hand.’48 From a Federalist perspective, it is therefore often desirable for federal
courts to stay federal actions in order to elicit the wisdom and expertise that state courts are able to bring to bear on
controverted questions of great concern to the states.49 Second, ‘in the substantial class of cases in which process must run to
a state officer,’ Federalists view it as politically desirable that the state courts serve ‘as intermediaries for the communication
and enforcement of federal commands.’50 Finally, Professor Bator has argued that federal judicial respect for state courts and
their judges tends to improve the quality of state court justice. According to Bator, ‘all the mysterious components of the
subtle art of judging well . . . are . . . best evoked by a sense of responsibility, by the realization that one has been entrusted
with a great and important task.’51 If this psychological assumption is correct, *1156 then federal judicial rulings that imply a
distrust of state judges may be subtly self-validating, while a federal attitude of respectful deference conduces to improved
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
decisionmaking in the state courts—a result that ought to be welcomed by Federalists and Nationalists alike.
With the Federalist model now described, it may be useful to clarify the relation of its premises to each other and to elaborate
slightly on the sense in which they comprise a theory of judicial federalism. In the pages that follow, I want to show how the
Federalist model—in conjunction with the rival Nationalist model—defines a fundamental tension in federal courts
jurisprudence. But this project cannot succeed unless the four premises used to define the Federalist model can usefully be
viewed as cohering into one perspective. If they were merely four unrelated claims about which people might agree or
disagree, grouping them into a single model would do more to confuse than to illuminate.
To a certain extent, the model’s utility depends upon its capacity to yield insights into the debates over particular issues. It is
possible, however, to offer a preliminary defense of the grouping of the four premises. First, although the model is an ideal
type and is not intended to describe the thought of any judge or theorist, the premises tend to cluster in the work of Supreme
Court justices and well-known commentators. The premises can be found in or derived from the work of Professors Hart 52
and Bator53 and the Hart & Wechsler casebook.54 Among Supreme Court justices, the four defining premises help to explain,
and frequently echo in, the opinions of Chief Justices Burger and Rehnquist 55 and Justices Frankfurter,56 Harlan,57 *1157
Powell,58 and O’Connor.59 The fit is not perfect. Some of the commentators and Justices would reject not only specific
conclusions but the analytical approaches to particular issues that I will attribute to the Federalist model. But the clustering of
attitudes is sufficient to be interesting.
Second, while the relationship among the premises is not one of logical entailment, there is a kind of intellectual gravitational
force that tends to hold them together. This force emanates most strongly from the Federalist model’s first premise, which
interprets the Constitution as a document that vests important prerogatives and responsibilities in the states and in the state
courts, and from the normative commitments that make this premise attractive. The Federalist model reflects many of the
traditional values of American federalism. Each of the Federalist premises helps to promote local responsibility and control;
to encourage reliance on local expertise; to avoid, at least in part, the familiar bureaucratic accompaniments to
nationalization; and to permit efficiency and elegance of institutional design by implying that any function once performed
by state institutions presumptively need not be interrupted or repeated by federal authorities.
Finally, when the four premises are grouped together, it should be clear that they both embody and support a theory of
judicial federalism sufficiently strong to determine the result in many close cases. 60 As will be seen, many federal courts
issues are difficult precisely because the relevant legal materials either are vague or point in conflicting directions. In such
cases, it is virtually impossible to test the persuasiveness of competing evidence, arguments, and interpretations without at
least an informal understanding of the generally prevailing systemic norms. In conjunction, the four premises of the
Federalist model express a clear vision of systemic purpose and order and thus exert a strong influence on a broad range of
issues.
*1158 B. The Nationalist Model
The Nationalist model traces its claim to legitimacy to two historical events. It first provides a revisionist interpretation of the
original Constitution—the document drafted in 1787, ratified by the states, and modified shortly thereafter by the first eleven
amendments. In significant contrast with a Federalist theory, however, the Nationalist model also finds historical foundations
in the revisions of federal relations, both constitutional and statutory, that followed the Civil War. Like its counterpart, the
Nationalist model can be defined by four premises.
Premise 1: The Constitution embodies a strong conception of national supremacy that exalts federal interests, especially the
federal interest in the effective enforcement of constitutional rights, above asserted state sovereignty interests. Viewed from a
Nationalist angle of vision, the Federalist model draws too heavily from the attitudes of historical Anti-Federalism in its
theory of the constitutional protections afforded to state governments and state courts.61 Although forced to compromise, the
proponents of broad national authority prevailed in the historical debates surrounding the Constitution’s drafting and
ratification. And, the Nationalist theory holds, the Constitution should be interpreted as embodying their historical triumph—
as vesting very expansive powers in Congress, even against the states, and as contemplating federal jurisdiction adequate to
vindicate national supremacy over anticipated state recalcitrance.62
The history of Civil War and Reconstruction lends additional support to the Nationalist theory of judicial federalism. 63 In
contrast with the Bill of Rights, which initially applied only to the national government, 64 the thirteenth, fourteenth, and
fifteenth amendments bind the states. As a matter both of substance and symbol, the significance of the Reconstruction
amendments was large.65 Opponents *1159 argued that the amendments’ subordination of state governments to federal
norms was so intrusive on state prerogatives as to destroy the federal character of constitutional government.66 Equally
important, each of the Civil War amendments includes an authorization to Congress to enforce federal norms against the
states by appropriate legislation. According to a Nationalist theory, state sovereignty—a concept of dubious analytical power
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
even under the original Constitution67—must be viewed as vastly diminished, if not eviscerated, by the Reconstruction
amendments, at least insofar as it is invoked to frustrate the enforcement of federal constitutional rights. 68
The second premise of the Nationalist model speaks to the constitutional competence and status of state and federal courts:
Premise 2: The Constitution contemplates a special role for the federal judiciary, different in kind from that assigned to state
courts, in ensuring the supremacy of national authority. Parallel to the provisions for legislative and executive power in
articles I and II, article III prescribes that the judicial power of the United States ‘shall be vested’ in one Supreme Court and
in such lower federal courts as Congress may ordain and establish. According to a Nationalist argument, the most natural
reading of this language is a mandatory one: article III requires that textually specified portions of the federal judicial power
‘shall be vested’ in some federal court—either the Supreme Court or an ‘inferior’ federal tribunal created by Congress. 69 On
this view, the Madisonian Compromise establishes that Congress need not create lower federal courts—but only so long as
*1160 there is Supreme Court review of the most federally significant state court decisions. That state courts lack
constitutional parity with the lower federal courts follows as a logical implication. If article III mandates the vesting of the
federal judicial power in either the Supreme Court or a lower federal court, but not in both, then the Constitution allows a
lower federal court, but not a state court, to make ultimate decisions on issues of constitutional magnitude. This implies that
federal courts enjoy a superior constitutional status.
A Nationalist model also finds stringent limitations on congressional controal of federal jurisdiction in the emanations of the
Reconstruction Constitution.70 It is the influence of fourteenth amendment doctrine that gave rise to a fifth amendment
jurisprudence of equal protection and fundamental rights. 71 And, Nationalists contend, congressional withdrawal of
jurisdiction over important claims of federal right would offend these norms. 72
The Nationalist model’s third and fourth premises involve the relationship of background constitutional understandings to the
construction of jurisdictional statutes and to the development of judge-made law.
Premise 3: Absent clear evidence of contrary legislative intent, there should be a presumption in the construction of
jurisdictional statutes that Congress generally legislates sympathetically to federal rights by authorizing easy access, as of
right, to the lower federal courts.
Premise 4: Absent clear evidence to the contrary, federal judges should assume that federal courts are likely to be more
prompt and effective than state courts in protecting federal constitutional rights, and they should craft doctrines of judgemade law that permit the federal *1161 courts to act as the presumptively available enforcers of constitutional norms.
Underlying the third and fourth premises are two empirical propositions and one normative judgment. The first empirical
claim is that state courts often are not as fair and effective as federal courts in enforcing constitutional rights. Professor
Neuborne, for example, argues that federal judges, who enjoy a constitutional guaranty of life tenure, are more protected than
state judges from majoritarian pressures and therefore may be more willing to enforce unpopular constitutional principles; 73
that federal judges typically are more able than state judges and therefore more competent to assess complex and novel
constitutional arguments;74 and that federal judges are more likely to have a ‘psychological set’ that predisposes them to
honor claims of federal rights, while state judges are likely to respond more grudgingly when state authority is challenged on
federal grounds.75
A related empirical argument holds that Congress, in enacting much of the remedial and jurisdictional legislation that is most
controverted in federal courts jurisprudence, acted out of suspicion, if not antipathy, toward state courts and wholly rejected
notions of practical parity.76 The great turning point occurred during Reconstruction, when Congress radically expanded the
scope of federal jurisdiction, frequently into areas previously reserved to state courts. 77 Recurrent *1162 themes in the
legislative history involved suspicion of state courts as inadequate guardians of constitutional norms and a preference for
federal courts as the guarantors of federal rights against the states.78 According to a Nationalist account, there is a heavy
presumption that Reconstruction jurisdictional and remedial legislation sought to replace state with federal judicial authority
and to ‘interpose the federal courts between the States and the people, as guardians of the people’s federal rights.’ 79
The final support for Premises Three and Four arises from an interpretation, implicit in Premises One and Two, of the relative
importance in the federal constitutional scheme of, on the one hand, the structural values asserted to protect state sovereignty
and efficiency interests and, on the other hand, the value of enforcing constitutional liberties. The Nationalist model does not
deny the former values but, as a matter of emphasis, asserts the priority of the latter. 80
Like the Federalist model, the Nationalist model is an ideal type. It does not purport to describe the actual positions of any
particular judge or theorist, though it is constructed out of them. The justification for the grouping of four premises as one
model again obtains along two dimensions. First, although the premises are logically independent of each other, they tend to
cluster in the work of judges and theorists. For example, most of the premises can be derived from, *1163 or are at least
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consistent with, the work of Justice William Brennan,81 Judge John Gibbons,82 and Professor Akhil Amar.83 Important
echoes sound in the writings of Professors Chayes,84 Fiss,85 Neuborne,86 and Sager,87 and in the judicial product of Justice
Marshall.88 Although the correspondence is not perfect, the fit is tight enough to warrant search along a second dimension for
intellectual and normative commitments that would explain why acceptance of one proposition might correlate with
acceptance of the others.
At this deeper level, the gravitational center of the Nationalist model is a vision of the Constitution as being most importantly
a guarantor of individual rights. When this vision is supplemented by the empirical claim that state courts are less likely than
federal courts to protect constitutional liberties effectively, it becomes easy to see how the disposition to prefer the
enforcement of constitutional rights over other, structural values could lead to endorsement of all four of the premises that
define the Nationalist perspective.
Finally, as with the Federalist model, the four premises of the Nationalist model combine to produce a powerful theory of
judicial federalism. Even when the premises do not directly determine the outcome of questions, their supporting values and
assumptions almost inevitably inform the weighing of historical and other evidence, at least in cases in which the evidence is
plausibly subject to varying interpretations. As subsequent sections of this Article will show, the Federalist and Nationalist
models wield so much power not because ideologies alone drive legal arguments, but because relevant textual *1164 and
empirical evidence so frequently is vague, conflicting, and open to alternative understandings.
II. JURISPRUDENTIAL CONFLICT
Examination of some leading federal courts debates will establish three conclusions about the Federalist and Nationalist
models and their influence. First, both models possess substantial capacity to elucidate the case law and the surrounding
literature. Second, both are invoked with some regularity, but only on a selective basis. Third, the acceptance within federal
courts law of antithetical starting points for analysis gives rise to substantial doctrinal instability.
A. Respect for State Judicial Proceedings
The Federalist and Nationalist models exert prominent influence in federal courts controversies regarding overlaps of state
and federal jurisdiction. Three sets of issues illustrate the ongoing debates. These involve the availability of federal
injunctions against state judicial proceedings, the preclusive effects of state court judgments in subsequent federal litigation,
and the respect to be accorded to state court judgments and procedures in federal habeas corpus actions.
1. Injunctions Against State Judicial Proceedings
In a much controverted line of cases, the Supreme Court has struggled to articulate conditions under which a federal court
may either enjoin apending state court proceeding or issue an injunction against future prosecutions. Two kinds of issues
present themselves. The first involves statutory interpretation: Do the applicable statutes authorize federal injunctions against
state judicial actions? If this question is answered affirmatively, there remains an issue of equitable discretion: What
conditions must be satisfied before federal injunctive relief should be granted?
The statutory issue arises at the intersection of two statutes. Originally enacted as part of the 1871 Civil Rights Act, 42 U.S.C.
§ 1983 creates a federal right of action against state officials, including prosecutors and judges, who violate federal
constitutional rights. The legislative history makes clear that Congress provided for federal enforcement of the statute
because it viewed the state courts with suspicion *1165 and hostility.89 Moreover, the statute provides expressly for
injunctive relief. But section 1983 is not the only statute bearing on the question. The federal Anti-Injunction Act,90 an
ancient statute first enacted in 1793,91 prescribes that ‘ a court of the United States may not grant an injunction to stay
proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction,
or to protect or effectuate its judgments.’ Currently codified as 28 U.S.C. § 2283, the Anti-Injunction Act has frequently been
portrayed by courts and commentators as embodying, and compelling judicial adherence to, the central values of the
Federalist model.92
*1166 To the question whether section 1983 supersedes section 2283 and its prohibitions against federal injunctions of state
court proceedings, the premises of the Nationalist model yield a clear affirmative answer. In the historical context of section
1983’s adoption, the Nationalist model finds it unimaginable that Congress could have intended to retain section 2283’s
policy of deference to state court justice.93
From a Federalist perspective, on the other hand, the burdens of proof and persuasion are reversed. The starting point for
Federalist analysis is the plain text of section 2283, which establishes that the anti-injunction proscriptions apply to section
1983 litigation unless an exception is ‘expressly authorized by Act of Congress.’ Because section 1983 says not a word about
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displacement of the Anti-Injunction Act, the argument concludes, section 2283 and its policies prohibit injunctions against
state judicial proceedings.94 From a Federalist perspective, this analysis does not represent excessive literalism in the
interpretation of the ‘expressly authorized’ exception to section 2283, but is supported by a sound theory of judicial
federalism: if Congress wished to depart from a principle of federalism as fundamental as that underlying the Anti-Injunction
Act, it could at least be expected to say to clearly.
Beyond the relationship of sections 1983 and 2283 remain issues concerning the appropriate exercise of equitable discretion.
Traditional canons of equity permit injunctive relief only where stringent conditions are satisfied. These include requirements
of imminence *1167 and irreparability of injury and of inadequacy of legal remedies. 95 Do these traditional barriers to
injunctive relief remain operative in suits under section 1983?
The Nationalist model contends that they do not. Its arguments proceed along two lines. First, the traditional standards are
judgemade. According to the Nationalist model, the federal courts ought to interpret and develop those standards to promote
effective enforcement of federal rights against the states.96 Second, because it is within the power of Congress to relax the
traditional restraints on equitable remedies, it is an important question whether Congress, in enacting section 1983, intended
to do so.97
Judges and scholars who emphasize the importance of congressional intent seldom argue that Congress expressly considered
the specific conditions under which injunctions ought to issue in suits under section 1983. The debate therefore occurs at
another level, where the Federalist and Nationalist models exert controlling authority through the premises that they prescribe
to guide the interpretation of congressional intent in the absence of clear historical evidence. With the debate so cast, scholars
propounding a Nationalist line of analysis have emphasized that the Reconstruction Congress that enacted section 1983 was
animated by a deep suspicion of state courts.98 Given that context, they find it unlikely that Congress would have intended
canons of equitable restraint to frustrate suits to protect federal civil rights from state abridgement. 99 But a contrary argument
proceeds as naturally from Federalist assumptions: if Congress intended to upset settled understandings concerning the
general impropriety of federal equitable relief against state officials in the performance of state sovereign functions, surely it
would have said so clearly.100
*1168 When the debates concerning statutory interpretation and equitable discretion are seen as illustrative of a tension
between the Federalist and Nationalist models, the case law reveals a fascinating duality. This duality exhibits itself most
powerfully in the modern era101 in two cases decided less than a year apart: the seminal Federalist case of *1169 Younger v.
Harris102 and the subsequent, but less influential, Nationalist decision in Mitchum v. Foster.103
Younger squarely posed the question whether section 1983 constituted an ‘expressly authorized’ exception to the antiinjunction strictures of section 2283.104 The Court, however, chose to avoid this issue of statutory construction. Instead it
elected to assume, although pointedly not to hold, that Congress had intended section 1983 to create a legislative exception to
the anti-injunction rule.105 This assumption required the Court to consider whether, as a matter of equitable discretion, a
federal court ought nevertheless to deny relief against pending state criminal proceedings.
Writing for the Court, Justice Black paid no heed to legislative history in determining whether an injunction ought to issue
under section 1983, a statute adopted by a Reconstruction Congress in an era of suspicion of state courts. Instead the Court
rested its decision directly on a familiar set of Federalist presumptions about the contours of judicial federalism:
[The most] vital consideration [is] the notion of ‘comity,’ that is, a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of separate state governments, and a
continuance of the belief that the National Government will fare best if the State and their institutions are left
free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer
way to describe it, is referred to by many as ‘Our Federalism,’ and one familiar with the profound debates that
ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and
dreams of ‘Our Federalism’ . . .. It should never be forgotten that this slogan, ‘Our Federalism,’ born in the
early struggling days of our Union of States, occupies a highly important place in our Nation’s history and its
future.106
The power of the Federalist model is here displayed in most striking form. Its premises—founded in an interpretation of the
original Constitution and only modestly adapted to accommodate changes *1170 wrought by the Civil War and
Reconstruction—are invoked to hold that a federal court should decline to exercise jurisdiction under a Reconstruction
statute, even though the statute’s enactment was motivated not by respect for state courts but by a suspicion of their
inadequacy to protect constitutional rights. The history of Reconstruction notwithstanding, Justice Black held that the Court
should adhere to a Federalist vision that he traced to ‘the early struggling days of our Union of States.’ 107 If Congress had
wished to alter traditional policies of equitable restraint, the Court reasoned, then it would have said so clearly.
Although it continues to be attacked by commentators, 108 Younger establishes the predominance of the Federalist model in
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questions of equitable discretion under section 1983. But the Federalist hegemony is less than complete. The Nationalist
model received at least its rhetorical due less than a year after Younger, when Mitchum v. Foster109 explicitly held what
Younger had only assumed: that section 1983 represents an express congressional exception to the Anti-Injunction Act.
Mitchum’s Nationalist language is as striking as it is incompatible with the theoretical foundations of Younger. Despite the
Federalist tradition of federal noninterference in state judicial proceedings, the Court pronounced, the Civil War amendments
and Reconstruction legislation must be viewed as divergent and controlling authority. In enacting section 1983, the Court
reasoned:
Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the
protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized
that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended
to the state courts.
Section 1983 thus was a product of a vast transformation from the concepts of federalism that had prevailed in the late
eighteenth century when the anti-injunction statute was enacted. The very purpose of section 1983 was to interpose the
federal courts between the States and the people, as guardians of the people’s federal rights . . .. 110
*1171 As interesting as Mitchum’s language was the Court’s unanimity in accepting it, despite the plain availability of an
alternative position supported by Federalist premises: if Congress had wished to depart from the principles of federalism
embodied in the Anti-Injunction Act, it almost certainly would have said so; in any case, it should have been required to do
so under the plain language of the Anti-Injunction Act, which requires that exceptions should be expressly authorized.111
When juxtaposed, Younger and Mitchum create a jurisprudence that legitimates two incompatible sets of governing premises.
Nationalist assumptions underlie the Court’s unanimous holding that section 1983 creates an exception to the letter of the
anti-injunction statute. The Federalist model informs the Supreme Court’s holding concerning the appropriate determinants
of federal equitable discretion. As between the two models, the Federalist exerts much more influence. As Professor Bator
has asserted, because Younger’s judge-made abstention rule was already in place, ‘Mitchum v. Foster had its fangs pulled
even before it was announced.’112 But the incompatibility of the approaches remains, and it has not been without
consequences.
On the one hand, Younger has expanded dramatically.113 Originally limited in application to pending state criminal
proceedings, the Younger doctrine has been extended to encompass quasi-criminal proceedings,114 state contempt
processes,115 civil enforcement actions to which the state is a party,116 ‘processes by which the State compels compliance
with the judgment of its courts,’117 and suits to restrain allegedly unconstitutional patterns of conduct by state prosecutors
*1172 and police departments.118 On the other hand, Nationalist premises surface regularly in dissents. Justice Brennan has
argued repeatedly that expansions of the Younger doctrine are inconsistent with the legislative history of section 1983 and
thus reflect usurpations of congressional power.119
Nor does the Nationalist model appear only in dissenting opinions. Emphasizing the intent of Congress to facilitate access to
a federal forum, the Court has held that declaratory judgments sought in anticipation of state criminal prosecutions should be
easier to obtain than injunctions.120 Without interposing Federalist presumptions that Congress would wish to show
deference to state courts or that rules of equitable restraint should be crafted to do so, the Supreme Court concluded in Steffel
v. Thompson121 that the congressional plan, which ought to be implemented, was to establish the lower federal courts as “the
primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United
States.”122 Nationalist postulates also help to justify the occasional aberrant decision that upholds a federal injunction against
a future state prosecution.123 Even when the traditional requirements of equity are satisfied, the Federalist model would
suggest that the appropriate place to seek injunctive relief is a state rather than a federal court.
2. Res Judicata and Collateral Estoppel
The Anti-Injunction Act is not the only ancient statute to embody a *1173 vision of federalism with which section 1983 finds
itself in tension.124 Enacted initially in 1790,125 the Full Faith and Credit statute, 28 U.S.C. § 1738,126 provides that ‘judicial
proceedings of any court of any state shall have the same full faith and credit in every court within the United States . . . as
they have by the law and usage of such State.’127 This language prescribes that federal courts, in determining the effect in
subsequent litigation of a state judgment,128 should look to the law of the state rendering the decision.129 In the context of
*1174 relations between state and federal courts, the purpose of the statute appears to derive from Federalist assumptions:
that state courts are as good as federal courts130 and that the dignity of the states requires federal respect for their
judgments.131
*1175 The apparent purposes of section 1738132 are incompatible with a broad, Nationalist interpretation of section 1983.
Section 1738 frequently directs federal courts to give preclusive effect to state court judgments. But sponsors of section 1983,
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the later enacted of the two statutes, manifest deep suspicion of the adequacy of state courts to reach fair determinations in
cases involving federal rights. Further, a line of Supreme Court decisions has held that section 1983 was intended to create a
‘uniquely federal’ remedy for violations of federal rights by state officials. 133 Commentators therefore have invoked
Nationalist premises to argue, and prior to 1980 some lower courts had held, that ordinary rules about the effect of state
judgments should not apply in actions under section 1983.134
The Federalist model directs a contrary conclusion. It argues that if Congress had intended section 1983 to create an
exception to the prevailing Federalist full faith and credit doctrine, it would have said so explicitly. 135 In Allen v.
McCurry,136 the Supreme Court adopted *1176 the Federalist analysis. The Court began by termining ‘comity between state
and federal courts’ a ‘bulwark of the federal system’137 and by instancing section 1738 as an expression of this fundamental
value. With this ‘background’ developed to justify its methodology, 138 the Court proceeded to read the legislative history of
section 1983 through a prism of Federalist assumptions. In the absence of clear evidence to the contrary, the Court reasoned,
section 1738 must be held controlling.139 Although the legislative history revealed a distrust of state courts, the Court found
this evidence too equivocal to establish a ‘repeal by implication.’ 140 Finally, the Court brusquely rejected policy arguments
based on ‘general distrust of the capacity of state courts to render correct decisions on constitutional issues.’141 The majority
reaffirmed its ‘confidence’ in the willingness and capacity *1177 of state courts to decide federal issues fairly.142
Allen was a case in which the result was effectively determined by the Court’s choice of an analytical starting point in the
Federalist model. Federalist presumptions resolved ambiguity in the legislative history and guided policy choices in the
penumbra of legislative intent. Justice Blackmun’s dissenting opinion reveals an equally plausible Nationalist alternative. 143
Justice Blackmun began with the Reconstruction statute, not with section 1738, and asked whether it was consistent with the
purposes of section 1983 for federal courts to give ‘full preclusive effect to prior state adjudications.’ 144 Seeking an answer
in the legislative history, Justice Blackmun found evidence—all of it cited in other Supreme Court cases—that the fortysecond Congress though ‘substantive justice was unobtainable’ in state courts. 145 The dissent therefore deemed it ‘senseless
to suppose that the authors would have intended the federal courts’ to defer to state court judgments. 146
The Allen dissent buttressed its argument with a telling analogy to Mitchum v. Foster, in which the Court had held
unanimously that section 1983 constitutes an ‘express exception’ to another ancient statute, the Anti-Injunction Act.
Although Justice Blackmun conceded that ‘the legislative history’ bearing on Allen was ‘capable of alternative
interpretations,’ he argued that prior decisions construing section 1983 had established that a Nationalist approach to
interpretation was required.147
*1178 Allen’s choice of a Federalist starting point has done much to inform subsequent decisions concerning ‘full faith and
credit’ issues in section 1983 litigation.148 But Allen apparently has not wholly foreclosed Nationalist modes of analysis.
Haring v. Prosise149 is illustrative. The question in Haring was whether a criminal defendant’s guilty plea in state court
precluded a later section 1983 action alleging police violation of fourth amendment rights. 150 Writing for a unanimous Court,
Justice Marshall first confirmed that section 1738 constituted presumptively controlling authority.151 But the Court, although
holding section 1783 binding on the facts before it, noted that the motivation for section 1983 lay in ‘grave congressional
concern that the state courts had been deficient in protecting federal rights.’ 152 It observed in dictum that ‘exceptions’ to the
preclusion doctrines contained in section 1738 ‘may be warranted in section 1983 actions in light of the ‘understanding of
section 1983’ that ‘the federal courts could step in where the state courts were unable or unwilling to protect federal
rights.’’153 Although the Court subsequently seems to have affirmed the fundamentality of Allen’s Federalist holding that
section 1738 applies with full force to section 1983 litigation,154 the *1179 ‘ confusing dicta’155 of Haring v. Prosise provide
an arguable basis for future Nationalist arguments.
3. Habeas Corpus
The law of habeas corpus provides one of the most prominent battlegrounds for the Federalist and Nationalist models. Two
sets of issues hold special interest.156 The first involves the permissibility of relitigation on federal habeas corpus of issues
already adjudicated by a state court in entering a criminal conviction. The second set of preclusion issues arises when
prisoners in federal habeas corpus proceedings attempt to litigate constitutional defenses that were not properly raised and
therefore not considered in state court.
a. Relitigation
The relitigation question is formally one of statutory construction: Did Congress, when it authorized federal habeas corpus
jurisdiction to review state court convictions, intend to prescribe relitigation of issues already determined by a state trial court
and reviewed by the state’s appellate system? 157 The relevant intent is that of the thirty-ninth Congress, which enacted the
Habeas Corpus Act of 1867,158 the predecessor statute to the currently applicable provisions. 159 But the legislative history is
sparse.160 Commentators therefore have agreed *1180 that the statute must be interpreted in light of its historical context 161
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and of contemporary concerns of policy.162 A Federalist approach to the 1867 statute begins by asserting the limited
historical scope of habeas corpus. The 1789 Judiciary Act withheld federal habeas corpus jurisdiction over prisoners held by
the states.163 Even with respect to federal detainees, throughout early American history habeas corpus review inquired only
into the jurisdiction of the convicting tribunal; where jurisdiction obtained, the merits of a judgment would not be
reexamined.164 Resting both on this history165 and on a general principle of deference to state sovereign interests in the
finality of criminal convictions,166 Federalist arguments hold that relitigation should be allowed in only a narrow range of
cases.167 Generally, the arguments assert, state courts should be presumed as competent as *1181 federal courts to adjudicate
federal issues correctly, and state judicial systems should not suffer the inconvenience or the insult of review of lawfully
obtained convictions by a single federal district judge. 168 Professor Bator’s position epitomizes Federalist reasoning. Despite
the current habeas corpus statute’s initial enactment by a Reconstruction Congress, Bator argues that ‘ i t would . . . require
rather overwhelming evidence to show that it was the purpose of the legislation to tear habeas corpus . . . out of . . . its
historical meaning . . . and convert it into an ordinary writ of error with respect to all federal questions.’ 169
If the debate is cast in terms of policy rather than historical intent, the Federalist model again finds the state interests more
constitutionally weighty than those of the petitioner in all but exceptional cases. Professor Bator’s argument 170 has two
relevant strands. One assumes the overall competence and fairness of state courts in protecting federal rights. 171 Within this
framework, Bator argues that the values served by relitigation generally are inadequate to justify the drain that it imposes on
judicial resources and the disruption that it causes to the state’s punitive and rehabilitative interests. 172 The second strand of
his argument recognizes that state court quality and fairness may occasionally fall beneath federal standards. But, Bator
argues, this makes it all the more important to create a structure that elicits maximum *1182 state court sensitivity to the
requirements of federal law.173 Among his more interesting arguments is that ‘indiscriminate’ relitigation in federal court is
likely to undermine the sense of personal responsibility that state judges ought to feel and thus may subvert the commitment
of state judges to applying federal law conscientiously. 174
A Nationalist approach yields a wholly different reading of the 1867 Habeas Corpus Act. From this perspective, the starting
point for statutory interpretation is the Reconstruction context in which the legislation was passed. 175 Emphasizing that the ‘ t
hirty-ninth Congress thoroughly distrusted the State courts and expected nothing from them but resistance and
harassment,’176 the Nationalist model holds that the legislature could not plausibly have intended to make the findings of the
state courts binding on federal courts on habeas corpus. 177 If the debate is conducted on policy grounds, the Nationalist
perspective affirms the superiority of federal courts over state courts as effective vindicators of constitutional norms and
assumes the fundamental importance of protecting individual rights.178
Until relatively recently, the case law exhibited a predominantly Nationalist flavor. Whatever its intrinsic merits as an
interpretation of congressional intent, the Federalist argument against relitigation *1183 suffered a signal defeat in 1953 in
the case of Brown v. Allen.179 Speaking for a majority of the Court, Justice Frankfurter adopted a Nationalist perspective on
the legislative history and asserted repeatedly that congressional intent mandated habeas corpus relitigation of decisions of
constitutional law.180 Although he did not elaborate the basis for this conclusion, Justice Frankfurter, who normally would be
associated with Federalist reasoning,181 also seemed to countenance questions about the parity of state the federal courts in
contemporary as well as in Reconstruction times. There were, he acknowledged, instances in which ‘even the highest State
courts’ have failed to give adequate protection to federal constitutional rights.182 He viewed it as the aspiration of federal
habeas corpus jurisdiction to remedy the attendant injustices.
Although Brown continues to establish the general permissibility of relitigation of questions of law on federal habeas
corpus,183 the Supreme Court’s 1976 decision in Stone v. Powell reflected at least a *1184 partial movement toward
Federalist premises.184 Stone held that fourth amendment search and seizure claims may not be relitigated on habeas.
Because Justice Powell’s majority opinion rested primarily on a construction of the exclusionary rule, not the habeas corpus
statute, Stone leaves Brown formally undisturbed.185 But the tension between the two cases is manifest. Stone acknowledges
no presumption in favor of a federal forum for vindication of federal rights,186 and it accords with Federalist premises in
assigning greater weight than Brown to state interests in the finality of their judgments.187
Since Stone, the Supreme Court has, somewhat surprisingly,188 limited its exception to the relitigation doctrine to fourth
amendment claims.189 But the conjunction of the Nationalist assumptions of Brown and the Federalist perspective of Stone
yields a tension bordering on contradiction. An obvious foundation exists for doctrinal movement in either a Federalist or a
Nationalist direction. This situation raises questions about the long-term stability of the doctrine.
*1185 b. Procedural Defaults and Precluded Claims
Supreme Court decisions involving habeas review of precluded claims exhibit pronounced doctrinal swings between the
Federalist and Nationalist models. The traditional doctrine, accepted even in a companion case to Brown,190 held that issues
of law not duly raised in state court could not be litigated for the first time in federal habeas corpus proceedings. The
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rationale for this rule, which accorded well with Federalist premises, was that the states should be free to develop their own
law with only minimal federal interference and, accordingly, that they are entitled to formulate and enforce constitutionally
valid procedural rules for raising federal issues in defense to state criminal prosecutions. 191 From this it follows that when a
criminal defendant fails to comply with state procedural law, his default properly may exclude a federal issue from the case in
state court. The state law basis for preclusion then will constitute an ‘independent and adequate state ground’ that bars
Supreme Court consideration of the federal issue on direct review. 192 And when a petitioner subsequently seeks to raise a
‘precluded’ issue in a federal habeas corpus proceeding, it can be said—without regard to the merits of the unlitigated federal
claim—that the underlying conviction was lawfully obtained. Thus, the argument concludes, the defendant who defaulted in
state court cannot establish that he is held in custody in violation of the Constitution or laws of the United States—the
statutory predicate for federal habeas corpus relief.193
In Fay v. Noia,194 a leading Nationalist decision of the Warren Court, the Supreme Court rejected this analysis. ‘Although the
habeas corpus Act of 1867 . . . nowhere defines habeas corpus,’ Justice Brennan reasoned in his opinion for the Court, ‘its
expansive language and imperative tone, viewed against the background of post-Civil War efforts in Congress to deal
severely with the States of the former Confederacy, would seem to make inescapable the conclusion that Congress was
enlarging the habeas remedy as previously understood.’195 *1186 Skepitcal of the adequacy of state court justice, Congress,
the Court concluded, must have intended to make federal habeas corpus jurisdiction ‘additional to and independent of direct
Supreme Court review,’196 not limited by the appellate jurisdictional obstacle posed by the independent and adequate state
grounds doctrine.197 The Court did recognize that the states have an interest in ‘exacting compliance with their procedural
rules.’198 But even this interest was measured against a Nationalist standard. Weighing the state interest against the
competing federal interest in the vindication of constitutional rights, Fay held that state preclusion rules should bar federal
habeas corpus review only when a prisoner had deliberately bypassed *1187 opportunities to litigate his federal claims in
state court.199
While Fay typified the work of the Warren Court, the Burger and Rehnquist Courts more often have reasoned from Federalist
premises, and their decisions concerning preclusion issues constitute no exception. 200 The central case if Wainwright v.
Sykes,201 which, apparently limiting Fay nearly to its facts,202 holds that a petitioner generally may not raise a claim on
federal habeas corpus if the claim was not duly litigated in state court. To qualified for an exception, the petitioner must
either show both cause for his failure to raise the issue and prejudice issuing as a result 203 or, alternatively, make a colorable
showing of probable innocence.204 Both of these standards have received exacting constructions. 205 Typical of the recent
cases, Justice Rehnquist’s Wainwright opinion rested almost entirely on policy grounds, with only a nod of deference to
legislative intent. Nevertheless, Wainwright’s cryptic arguments resonate with Federalist premises. The opinion supports its
conclusion by invoking the necessity to respect the rules adopted by ‘a coordinate jurisdiction within the federal system’ 206
and emphasizes the interest of the states in constituting ‘the trial of a criminal case in state court as a decisive and portentous
event,’207 rather than as ‘a ‘tryout on the road’ for what *1188 will later be the determinative federal habeas hearing.’208 Fay,
however, has at least not been explicitly overruled. And its decision, coupled with the Nationalist perspective that appears
regularly in dissenting opinions,209 leaves a lingering element of tension in the law of preclusion on federal habeas corpus.
B. State Sovereign Immunity and the Eleventh Amendment
Issues involving state sovereign immunity and the eleventh amendment define another prominent battleground for the
Federalist and Nationalist models. As in cases involving potential conflicts of state and federal jurisdiction, the models
supply assumptions or premises that help to identify historically intended meanings. In this context, however, the relevant
questions involve constitutional, rather than statutory, interpretation.
The general problem concerning the constitutional status of sovereign immunity and the meaning of the eleventh amendment
is easily framed. Various provisions of the Constitution and laws of the United States create rights against the states. 210 But
attempts to enforce those rights in federal court frequently raise complex, multidimensional issues. The roots of these issues
lie in the ancient doctrine of sovereign immunity211—the doctrine, carried across the Atlantic from England and imported
into the framework of the colonial governments,212 that the Crown could not be sued without its *1189 consent.213 At the
Constitutional Convention, it was not made explicit whether state sovereign immunity survived the Constitution, and
especially whether it could be invoked to defeat claims brought in federal court and founded on federal law. 214 In the absence
of strong interpretive assumptions, the evidence of original intent is surely equivocal. From a Nationalist perspective, it is
highly significant that article III authorizes federal jurisdiction of ‘all cases’ arising under the Constitution and laws of the
United States215 and also of controversies ‘between a State and Citizens of another State.’216 Moreover, state sovereign
immunity is arguably incompatible both with the accepted constitutional concept of federal supremacy217 and with the theory
of ‘popular sovereignty’ that underlies the constitutional regime. 218
The Federalist perspective, on the other hand, would demand clear evidence that the framers intended to displace an
immunity rooted in historical tradition.219 Moreover, when the evidence is examined, Federalists find irrefutable testimony
that the framers intended to *1190 retain sovereign immunity. During the ratification debates, the Constitution’s leading
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contemporary theorist, James Madison, gave assurances that article III did not alter the traditional principle that ‘ i t is not in
the power of individuals to call any state into court.’220 Both Alexander Hamilton221 and John Marshall222 also argued that
the Constitution retained the states’ immunity from suit.223
In its first encounter with the issue of state sovereign immunity, the Supreme Court adopted a thoroughly Nationalist
interpretation of *1191 article III. Chisholm v. Georgia,224 decided in 1793, involved a contract action by a South Carolina
citizen against the state of Georgia.225 Upholding its jurisdiction under the constitutionally enumerated category of suits
against a state by a person not a citizen of that state, four of the five participating Justices held that sovereign immunity did
not bar the action.226
The ensuing reaction clearly establishes Chisholm’s incompatibility with prevailing political assumptions. 227 Within six
months Congress had passed, and within two years the states had ratified, 228 the eleventh amendment to the Constitution of
the United States: ‘The Judicial power of the United States shall not be construed to extend to any *1192 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.’229
The meaning of the eleventh amendment remains disputed. Nationalists emphasize that the amendment says nothing about
state sovereign immunity. If the framers had intended to vest the states with immunity from suits to enforce the federal
Constitution, Nationalists argue, they at least could have been expected to say so. 230 This argument is buttressed by the fact
that sovereign immunity would have been protected absolutely in federal court if the amendment had simply ended fourteen
words earlier—the point at which the judicial power has been asserted not to extend to suits against the states, but before any
qualifying language about the kinds of suits, defined by party, to which the amendment applies. 231 According to modern
Nationalists, the language of the eleventh amendment, when closely parsed, forbids federal jurisdiction of suits against the
states only when jurisdiction is based solely on the diverse citizenship of the parties. 232 This interpretation allows the states
to invoke sovereign immunity in suits, such as the breach of contract action in Chisholm, that arise under state law and are
candidates for federal jurisdiction only because of the identity of the parties. But it creates no prohibition against federal
jurisdiction in suits based on the Constitution or laws of the United States.233 Federal supremacy, the rule of law, and other
Nationalist values are thus preserved in the most important categories of cases. 234
*1193 From a Federalist perspective, the oddly framed language of the eleventh amendment is less significant than the spirit,
perceived through the lens of Federalist assumptions, that animated it. According to modern Federalists, the states enjoy
sovereign immunity from suit, whether conferred by the eleventh amendment 235 or by the intended meaning of the
Constitution as originally ratified by the states, 236 even in cases to which the language of the eleventh amendment does not
literally apply.237
Although early Supreme Court decisions were at least consistent with the Nationalist interpretation,238 the watershed
Federalist case of Hans v. Louisiana,239 decided in 1890, defines the background against which the doctrine has subsequently
developed. Interpreting the language and history through the filter of Federalist assumptions, the Hans Court concluded that
the purpose of the eleventh amendment was to reestablish a general regime of state immunity from suit, at *1194 least in
federal court.240
Over the past several years, four justices of the Supreme Court have argued repeatedly that Hans ought to be overruled.241
Adopting a Nationalist perspective, these justices have disputed Hans’s interpretation of eleventh amendment history and
have decried its reliance on what they view as the same misconception of state sovereignty ‘as the Tenth Amendment
jurisprudence of National League of Cities v. Usery242 that wa recently abandoned in Garcia v. San Antonio Metropolitan
Transit Authority.’243 The attack on Hans is by no means quixotic. When the issue was last joined, 244 Justice Scalia, though
concurring in the result, declined to join the plurality’s Federalist *1195 defense of Hans’s historical and political
foundations.245 Moreover, Justice Powell, who was the Court’s leading proponent of the Federalist model in eleventh
amendment cases, has retired. For now, however, Hans stands at the center of eleventh amendment jurisprudence and
endorses a principle of state sovereign immunity so strong that exceptions are required to vindicate the minimal requirements
of national supremacy.246
Aside from the vitality of Hans itself, the two leading eleventh amendment issues both involve the appropriateness of
exceptions to Hans’s conception of state sovereign immunity. Each reflects a tension between the Federalist and Nationalist
models.247
1. Scope of the Young Fiction.
An important question in sovereign immunity jurisprudence is entirely definitional: When is a suit a suit against a state? In
one of the first important cases construing the eleventh amendment, Chief Justice Marshall held that the jurisdictional
limitation did not apply to suits in which the party of record was not a state but a state official. 248 This construction, which
prevailed throughout the entebellum period and well into Reconstruction, 249 represented virtually a total *1196 victory for
Nationalist premises and values. Because a state can function only through its officers, it is almost always possible to plead
an action as one against a state official, even when the state is the real party in interest. Moreover, as Professor Currie has
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observed, ‘ p eople are not likely to amend constitutions just to change captions on complaints.’ 250 Shortly after the end of
Reconstruction, however, the consistency of the pattern broke,251 and Federalist rhetoric entered the case law. For example,
In re Ayers,252 decided in 1887, included language sometimes interpreted as suggesting that the Court had moved to the
extreme Federalist position that the states’ eleventh amendment immunity extended to state officials whenever they were
acting within the scope of their state law authority. 253
Ex parte Young254 inaugurated the modern era of dialectical doctrinal development between the Nationalist and Federalist
extremes. In Young, the Court stood closer to the Nationalist pole as it held that a federal court could enjoin the attorney
general of Minnesota from attempting to enforce an unconstitutional rate regulation statute in state court. Because states had
no authority to act unconstitutionally *1197 themselves, the Court reasoned, they could not ‘impart to any official any
immunity from responsibility to the supreme authority of the United States.’ 255 Accordingly, the Court ruled, there could be
no constitutional prohibition against a federal injunction that did no more than order a state official to cease violations of
federal law.256
Young presents a constitutional fiction. Although a state can act only through its officers, state officials, even when
performing their official duties, can be sued for injunctions on the theory that they are not ‘the state’ and thus not entitled to
eleventh amendment protection.257 Somewhat paradoxically, the Young fiction applies even in suits in which the substantive
cause of action arises under the fourteenth amendment, which forbids only those deprivations of rights that are caused by a
‘state.’258
Young lived, moved, and had its being in the assumptions and values of the Nationalist model. The case’s doctrinal
innovation lay in its authorization of an injunction to prevent a state’s attorney general from initiating a suit in state court,
where federal rights at least in theory would have been protected as fully as in federal court.259 The decision’s plain policy
was to permit the vindication of federal rights in federal court, implicitly on the assumption that a federal forum would ensure
more effective vindication of federal constitutional claims. This point was not lost on Justice Harlan, whose dissenting
opinion in Young sounded the Federalist theme. Beyond demanding greater respect for the states’ sovereign integrity, he
argued that ‘ w e must assume—a decent respect for the States requires us to assume—that the state courts will enforce every
right secured by the Constitution.’260
Young, however, marks the beginning of the modern era, not its end. The contending forces of the Federalist and Nationalist
models have persisted. In Edelman v. Jordan,261 for example, the majority *1198 relied on the Federalist premise of state
sovereignty to bar retroactive financial relief that was payable from a state’s treasury. Because of the practical certainty that
equitable restitution could be made only from funds in the state’s treasury, Justice Rehnquist reasoned that the state’s
sovreign interests, which were demonstrable, were more directly implicated than in Young.262
Although Edelman establishes Federalist values in the law interpreting Young, the emerging doctrinal lines are both blurry
and potentially unstable. Edelman appears to prohibit relief that compensates a plaintiff for harm already done. 263 Yet the
Court subsequently has upheld a decision that effectively ordered the state of Michigan to pay half the cost of compensatory
educational programs as part of the remedy for past unconstitutional segregation. 264 The Court also has upheld the award of
attorneys’ fees against state defendants.265 When the decisions are put together, the reach of Edelman’ s underlying
Federalist values, within the bounds defined by the Nationalist decision in Young, remains uncertain. As the lines of authority
increasingly embody conflicting interpretive schemes, the law as a whole grows less determinate,266 and direct appeal to the
values represented by the Federalist and Nationalist models becomes more necessary to the resolution of individual cases. 267
*1199 2. Abrogation of State Sovereign Immunity
Although Hans v. Louisiana holds that the states enjoy sovereign immunity from suit in federal court, a question remains
about whether Congress, in the exercise of its constitutional powers, can strip the states of the immunity that they would
otherwise enjoy. If Congress does possess the power to abrogate a state’s immunity, a subsidiary question involves how the
congressional intent ought to be identified. The Federalist and Nationalist models shed light on the debates over both these
questions.
In Fitzpatrick v. Bitzer,268 a unanimous Supreme Court held that Congress, when acting pursuant to section five of the
fourteenth amendment, may eliminate the states’ immunity from suit in federal court. 269 This holding represents a clear
triumph of Nationalist over Federalist assumptions and values. From a Federalist perspective, the conclusion that section five
of the fourteenth amendment authorizes Congress to abrogate the states’ constitutional immunity reflects a judgment about
historical intent that is by no means obvious and is *1200 probably mistaken. As Professor Currie has argued, the Civil War
amendments would not authorize Congress to impose cruel and unusual punishment as a penalty for civil rights violations. 270
Why, then, should they be held to license transgression of other constitutional limitations on congressional power? 271 The
Court’s unanimity in Fitzpatrick thus stands as a testament to the fundamentality in our constitutional scheme of the values
and assumptions embodied in the Nationalist model.
Fitzpatrick, however, was a carefully limited opinion, which specifically tied Congress’s power to abrogate state sovereign
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immunity to section five of the fourteenth amendment. Justices Brennan and Stevens, who concurred separately, both took
the broader view that congressional power is not limited to section five of the fourteenth amendment, but exists under other
grants of congressional authority, notably the commerce clause. 272 Whether Congress can brogate state sovereign immunity
under its article I commerce power is a question that the Court apparently regards as open. 273
When the Court does confront that issue,274 the Nationalist and *1201 Federalist models call for different results. From a
Nationalist perspective, the eleventh amendment’s bar to federal jurisdiction should apply only in cases in which federal
jurisdiction over a suit against a state is predicated on diversity of citizenship.275 Under this interpretation, the eleventh
amendment counts for nothing in a case arising under federal law. Even if Hans’s rejection of this position must be accepted,
the Nationalist model would counsel that Hans should be read to limit only judicial, not legislative, power and thus to permit
federal jurisdiction of suits involving congressionally authorized causes of action. 276 Among its virtues, this position would
bring eleventh amendment jurisprudence into line with tenth amendment doctrine. In tenth amendment cases, the court has
held that the principal protection of state sovereignty interests must come not from the courts but from the states’ political
representation in Congress.277
The Federalist model prescribes opposite conclusions. Indeed, from a Federalist perspective, the question of Congress’s
power to abrogate the states’ eleventh amendment immunity would be resolved by Hans itself, which held the states’
immunity from suit too fundamental to yield even to constitutional claims.
However the Court may resolve the issue of Congress’s power to abrogate eleventh amendment immunity under the
commerce clause, its long failure to reach the question reflects the influence of the Federalist model in an antecedent inquiry.
The antecedent question is whether Congress, under any particular statute, in fact intended to abrogate the states’ immunity.
Under the premises of a Nationalist model, this question ought to be resolved under ordinary rules of statutory construction.
State sovereignty not being a particularly weightty concern, Congress, in creating rights and providing for their enforcement,
would presumably intend to make states as vulnerable to suits as other defendants. 278 The Court, however, has embraced
rules of inference suggested by the Federalist model. 279 Postulating that sovereign *1202 immunity is a fundamental
constitutional value,280 it has propounded a clear statement rule of the most stringent form. If Congress intends to abrogate
the states’ immunity, it must express its intention to do so ‘in unmistakeable sic language in the statute itself.’ 281
C. State Court Powers and Obligations
Many disputed issues in federal courts law involve the powers and obligations of state courts in adjudicating federal claims.
Resolution frequently requires resort to background understandings or premises about the nature of judicial federalism within
the constitutional scheme. Nationalist premises then generate one set of conclusions, Federalist premises another.
1. State Court Remedial Power
Issues concerning the remedial power of state courts lie at the center of one of the most fascinatingly arcane debates in the
law and theory of federal courts.282 The leading precedent is Tarble’s Case.283 *1203 The case arose after a boy from the
state of Wisconsin allegedly lied about his age in order to enlist in the United States Army. Wanting his son back, the boy’s
father asked a Wisconsin state court to order his son’s release on habeas corpus—a writ directing an executive officer to
come forward to justify a challenged detention. The jurisdictional question was whether a state court could enter a writ of
habeas corpus commanding action by a federal official in the performance of his federal office.
From a Federalist perspective, the Madisonian Compromise marks the lines of analysis. Because Congress need not create
any federal courts at all, state courts must be considered constitutionally competent to decide any case arising under the
Constitution and laws of the United States and, accordingly, to issue any traditional legal orders reasonably necessary to the
judicial function.284 Congress of course could divest the state courts of parts of their general jurisdiction by prescribing
exclusive federal responsibility for certain classes of lawsuits. 285 But when Congress has not expressly chosen to do so, the
Federalist model holds that the competence and status of the state courts should not be derogated. On the contrary, the state
courts should be presumed as fair and able as federal courts to perform any judicial function, including the award of coercive
remedies.
A Nationalist model frames the issues quite differently. Especially in light of the experience of Civil War and
Reconstruction,286 later *1204 replicated in part in the civil rights struggles of the 1960s,287 a Nationalist approach maintains
that state court must be regarded as potentially disruptive of effective federal supremacy. And, the Nationalist reasoning
continues, the Constitution should not be read to allow the singular dislocations that the state courts cause by issuing
mandatory orders to federal officials.288 Individual rights may indeed be threatened by federal official action. But federal
rather than state courts should be considered the preferred guardians of federal constitutional rights. 289
Tarble’s Case, which was decided during the Reconstruction era, adopts the Nationalist analysis. The Supreme Court
reasoned that state courts could not be presumed to be as fair and competent as federal courts: ‘The experience of the late
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rebellion has shown us that . . . the powers of the National government could not be exercised with energy and efficiency at
all times, if its acts could be interfered with and controlled for any period by [state] officers or tribunals.’ 290 The Court
acknowledged that the writ of habeas corpus must, under the Constitution, be available. In the Court’s view, however, the
Constitution also required that the writ come from a federal court, not a *1205 state court.291
More than 100 years after its decision, Tarble’s Case remains a focus of debate.292 Some of the controversy arises from the
implications of the Court’s Nationalist holding for closely related issues involving the state courts’ remedial capacity.293 Of
potentially greater significance, however, is that Tarble’s Case, if read literally as founded on propositions of constitutional
law, strikes directly at one of the foundation stones of the Federalist model: the proposition that state courts enjoy
constitutional parity with federal courts. Rejection of this premise has potentially far-reaching implications. For example,
proponents of Nationalist premises have deployed Tarble’s Case to argue that, the Madisonian Compromise notwithstanding,
the existence of lower federal courts is now a constitutional requirement; 294 for if the state courts are disabled from issuing
constitutionally required remedies against federal officials, Congress’s discretion to define the jurisdiction of the lower
federal courts is substantially circumscribed. Answering from a Federalist perspective, Professor Bator attacks Tarble’s Case
as wrongly decided and therefore incapable of demonstrating the failure of the Federalist model in other areas of federal
courts law. Tarble’s Case, he writes, is a ‘dubious tail’ that is much too weak to ‘wag such a large dog.’ 295
Although Tarble’s Case clearly reflects the ascendancy of the Nationalist model within its own domain, its capacity to
influence other cases remains in doubt, and the battle between Nationalist and Federalist assumptions continues unabated.
Indeed, it is an indication of the continuing force of both models that even many Nationalists are uncomfortable about
reading Tarble’s Case for the *1206 constitutional proposition that state may not command action by federal officers. 296
Among its difficulties, this interpretation entails conclusions that are likely to prove untenable—for example, that Congress
could not expressly authorize the state courts to issue injunctions and writs of mandamus and habeas corpus against federal
officials.297 Though other rationales for Tarble’s Case are available, they limit the reach of its significance.
One plausible reading of Tarble’s Case emphasizes congressional intent. When Congress authorized the federal court to
entertain habeas corpus petitions such as that in Tarble’s Case,298 it arguably intended to create exclusive federal
jurisdiction.299 And if the statute can be so read, there is no need to reach ultimate constitutional questions about what state
court remedies might be available if Congress had not provided for federal jurisdiction. An alternative interpretation
construes Tarble’s Case note as resting on legislative intent but as embodying a federal common law of state-federal
relations.300 Being judge-made, a common law rule of skepticism of state judicial power could be overridden by Congress.301
Both of these readings of Tarble’s Case avoid the ultimate constitutional issue of state court power and thus save from
explicit rejection the Federalist premise *1207 that the Constitution assumes the parity of state and lower federal courts.
It is important, however, to note the cost to the Federalist model that is exacted by these saving interpretations. If Tarble’s
Case rests on a construction of congressional intent, it is significant that the Court did not examine any actual legislative
history. Instead it relied entirely on a presumption about the relative competence and trustworthiness of state and federal
courts that issues directly from the Nationalist model. Alternatively, if Tarble’s Case is explained as involving a principle of
federal common law, that principle again expresses Nationalist values. Thus, however Tarble’s Case is parsed, it promotes
the assumptions of the Nationalist model and, in doing so, provides precedential authority for applying Nationalist norms in
areas where Federalist premises currently predominate.
2. State Court Obligations to Accept Jurisdiction
When a state court accepts jurisdiction of a case, it must apply all relevant federal law. 302 This is the core requirement of the
supremacy clause.303 But must state courts exercise jurisdiction of cases asserting federal bases for relief? 304 This question
arises both in suits to enforce constitutional rights and in suits under federal statutes.
*1208 From a Federalist perspective, a requirement that state courts entertain federal causes of action is at least in tension
with the premise of state sovereignty.305 Yet issues of state obligation to enforce federal rights also implicate the integrity of
the Madisonian Compromise. If state courts could refuse to entertain federal causes of action, Congress could be forced to
create lower federal courts in order to preserve the supremacy of federal law. 306 In light of this tension, two positions
plausibly claim roots in Federalist premises. The first, issuing from a broad construction of the premise of state sovereignty,
denies that federal law ever can require the exercise of jurisdiction by a state court. 307 The second attempts to reconcile state
sovereignty with a view of the Madisonian Compromise as embodying the central assumptions of judicial federalism. It
endorses a compromise that minimally requires state courts not to discriminate against claims based on federal law. 308
Moreover, if no federal court has jurisdiction of a case, they the state courts—in order to validate the presuppositions of the
Madisonian Compromise—must exercise their jurisdiction *1209 to vindicate federal rights. In other situations, however, the
value of state sovereignty prevails.
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Tension also exists in the Nationalist model, though less acutely. From a Nationalist perspective, state sovereignty imposes
no impediment to requiring state courts to enforce federal law. More difficult to comprehend within this model is why it
should be important to make them do so. Requiring the state courts to exercise jurisdiction creates a situation in which it is
easier for Congress to commit federal matters to state adjudication—and the Nationalist model regards federal courts as the
preferred vindicators of federal rights. Although this is a cause for unease, it ultimately weighs less heavily than Nationalist
assumptions about the paramount importance of vindicating individual rights. 309 When Congress wishes the states to enforce
federal rights, the Nationalist model indicates that the states’ sovereignty interests must give way where congressional power
begins.310
The case law reveals a complex mixture of and competition between the Federalist and Nationalist approaches. In cases
involving constitutional claims, an old line of authority reflects the Nationalist model. General Oil Co. v. Crain,311 decided
in 1908, held that a state court must give a remedy for constitutional rights violations, despite the state court’s lack of
jurisdiction to award relief under state law. 312 *1210 Objections based on state sovereignty, such as those raised in Justice
Harlan’s dissenting opinion,313 were deemed less important than the Nationalist concern to vindicate rights. Later cases
followed Crain in holding that the Constitution gives rise to remedies for constitutional rights violations that the state courts
are obliged to enforce.314
Although Nationalist principles thus have exercised significant influence, the Federalist model is by no means clearly
vanquished. It is even possible, though barely so, to characterize the law as reflecting the models’ contradictory premises.
Reading a couple of decisions from the 1940s and 1950s for the most that they might stand for, the second edition of the Hart
& Wechsler casebook315 suggested that the Supreme Court had more recently followed Federalist premises in assessing the
obligations of the state courts and, that in doing so it had disregarded or even overruled Crain.316 Although affirmative
support *1211 for this position was and remains weak,317 no case since Crain has squarely held that state courts have a
general obligation to hear even those constitutional claims that Crain marks as most compellingly in need of state
adjudiciation—claims barred from federal court under Hans v. Louisian’s construction of the eleventh amendment.318 If this
important issue arises again, the Court might feel entitled to resort to first principles and invoke either Federalist or
Nationalist premises to reach its decision.319
*1212 Cases involving the states’ obligation to enforce federal statutes reflect a parallel struggle between Nationalist and
Federalist premises. The influence of the models manifests itself in efforts to answer two kinds of questions. One involves the
identification of congressional intent, the other Congress’s ultimate power to impose obligations on the states.
The prior question is whether, in cases in which Congress has not stated explicitly that it intends to require state adjudication
of federal statutory causes of action, it should be inferred that Congress would have wished to do so. The absence of an
affirmative statement requires a reliance on presumptions of the kind that the Nationalist and Federalist models supply.
Although the cases are sparse, Federalist premises generally prevail. The law presumes that Congress would not have
intended to impose on the states an absolute duty to adjudicate. 320 If Congress means to impair the states’ prerogative to
define the jurisdiction of their courts in rational and nondiscriminatory ways, it must say so clearly. 321 But a second
presumption then gives Nationalist values a balancing presence. Absent clear indication to the contrary, it will be inferred
that Congress would have wanted to require adjudication of federal causes of action in state courts that do not have a valid,
nondiscriminatory excuse for declining to exercise jurisdiction. 322
The lurking constitutional question, which equally implicates the Federalist and Nationalist models, is whether Congress can
require the state courts to take jurisdiction of federal statutory causes of action when they would not entertain comparable
state law cases.323 *1213 Although the Supreme Court has sought to avoid this question, 324 recent decisions powerfully
support the Nationalist conclusion that congressional power should be upheld against claims founded on state sovereignty
interests. In Federal Energy Regulatory Commission v. Mississippi,325 the Court held that state sovereignty interests did not
preclude federal legislation requiring the states to adapt their administrative and judicial processes to advance federal energy
policy.326 Recent developments in tenth amendment jurisprudence also cast a long Nationalist shadow.
In a resoundingly Federalist and apparently pathbreaking 1976 decision, a sharply divided Supreme Court had held in
National League of Cities v. Usery327 that the tenth amendment limits Congress’s capacity to regulate state and local
governments in wasy that interfere too deeply with their performance of traditional governmental functions. Read for all that
it might have meant, this decision would have raised serious doubts about the capacity of Congress to require state
adjudication of federal claims, even in circumstances where settled precedent had upheld congressional authority. 328 But the
analytical framework of National League of Cities was at once vague and cumbersome, and the case conspicuously failed to
produce *1214 progeny.329 In 1985 the Court overruled the decision entirely in Garcia v. San Antonio Metropolitan Transit
Authority.330 Of potentially greater significance is that the Court, in doing so, more or less renounced the effort to give
judicial content to the concept of state sovereignty under the tenth amendment. According to Garcia, the principal protection
of state sovereignty interests lies in the national political process, not in judicial enforcement of constitutional provisions.331
Although the demise of National League of Cities will seriously impair Federalist arguments asserting the prerogative of the
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states to define the jurisdiction of their courts without federal interference, it would be naive to assume that Nationalist
principles will now dominate the field. Even in its Garcia decision, the Supreme Court asserted, albeit somewhat
perfunctorily, that ‘we continue to recognize that the States occupy a special and specific position in our constitutional
system and that the scope of Congress’ authority under the Commerce Clause must reflect that position.’332 Moreover, where
issues of large constitutional principle exhibit a tension between powerful and entrenched theories, few broad holdings
should be considered stable. This certainly is the view of Chief Justice Rehnquist. Dissenting from the Court’s recent
enshrinement of Nationalist above Federalist principles, he reiterated his belief in an enforceable set of state sovereign
prerogatives under the tenth amendment that would, he predicted, ‘in time again command the support of a majority’ of the
Supreme Court.333 As indicated by that call to battle, the struggle between the Nationalist and Federalist models seems likely
to continue indefinitely in this area of the law.334
*1215 D. Congressional Control of Federal Jurisdiction
The scope of congressional power to define and limit the jurisdiction of the lower federal courts has been a perennial topic of
debate. The issue typically arises when Congress dislikes certain substantive decisions of the federal courts and responds, not
by seeking to amend the Constitution, but by limiting federal jurisdiction. As recently as 1979, for example, the Senate
passed a bill that would have barred federal district court and Supreme Court jurisdiction of ‘any case arising out of any . . .
State statute [that] relates to voluntary prayers in public schools and public buildings.’ 335 Although few decided cases
address the issues presented by legislation of this kind, the academic literature is ‘choking on redundancy.’ 336 Not
surprisingly, the Nationalist and Federalist models play large roles in the debate. If Congress withdraws lower federal court
jurisdiction over a class of cases, the normal result will be that adjudication must occur in state court. Disputes about the
scope of congressional power to control federal jurisdiction thus implicate a central disagreement between the *1216
Federalist and Nationalist models: Does the Constitution assume that the state courts are as competent as federal courts to
perform any function that Congress might wish to leave exclusively to them?
The debate about Congress’s power to substitute state for federal adjudication generally divides into two parts. 337 One
involves the question whether article III restricts Congress’s discretion to define the jurisdiction of the lower federal courts.
The other addresses restraints on congressional power that arise from other parts of the Constitution, such as its equal
protection and due process guaranties.
1. Article III Issues
Could Congress eliminate the jurisdiction of the lower federal courts over cases involving the lawfulness of, for example,
voluntary prayer in public schools and public buildings? The problem, as so often, is to draw conclusions from sources that
are arguably ambiguous. On the one hand, the language of article III, as supported by the Madisonian Compromise,
contemplates that Congress need not create any lower federal courts at all. Drawing on this background, the Supreme Court
pronounced in Sheldon v. Sill338 that legislation limiting the jurisdiction of the lower federal courts ‘cannot conflict’ with
article III.339 On the other hand, the framers contemplated a tripartite scheme of government, in which the federal courts
would perform an important checking function. 340 Moreover, the language of article III, like that of articles I and II, sounds
in mandatory terms: the judicial power ‘shall be vested.’341
In the effort to draw a conclusion from ambiguous and possibly conflicting sources of constitutional wisdom, the Federalist
and Nationalist models provide both a historical and a normative compass. From a Federalist perspective, the language of
article III and the history of the Madisonian Compromise are dispositive. 342 Both indicate that the decision whether to create
any lower federal courts *1217 should be discretionary with Congress.343 And, in Professor Bator’s words, ‘ i t would make
nonsense of’ the compromise to hold that ‘the only power to be exercised is an all-or-nothing power to decide whether none
or all of the cases to which the federal judicial power extends need the haven of a lower federal court.’ 344 Nor would it
matter if Congress’s choice to exclude a certain category of cases arose from a political dissatisfaction with substantive
judicial decisions. When viewed through a Federalist lens, the historical evidence suggests that the decision whether to
provide a federal forum was intended to be ‘a matter of political . . . judgment.’ 345
Disputing the Federalist view, a tradition of Nationalist argument that commences with Justice Joseph Story, 346 includes
Lawrence Sager,347 and has been advanced most recently by Professor Amar 348 emphasizes the mandatory language of
article III. Although some Nationalists have argued that this language requires the creation of lower federal courts and their
investiture with sweeping jurisdiction,349 this view is implausible in light of the Madisonian Compromise. 350 Thus, other
Nationalists have taken a more modest position: although article III does not specify that the judicial power of the *1218
United States must be vested in a lower federal court, it does mandate that the judicial power shall be vested in some federal
court with either original or appellate jurisdiction.351 This interpretation implies that Congress can remove the jurisdiction of
the district courts over school prayer cases, for example, but only if there remains Supreme Court review of state court
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judgments. Alternatively, Congress could withdraw Supreme Court appellate jurisdiction over school prayer disputes, but
only if it provided for access as of right to an inferior federal tribunal. Although this restraint on congressional power may
appear modest, it suffices to maintain the central claim of the Nationalist as against the Federalist model: the Constitution
does not presume the parity of state and lower federal courts. Somewhat more specifically, the Constitution trusts the lower
federal courts, but not the state courts, to function as ultimate guarantors, free from Supreme Court review, of the supremacy
of federal law and federal rights.352
The case law reflects no clear choice between the Federalist and the Nationalist positions. Judicial dicta strongly support the
Federalist view,353 but the precise claim on which modern Nationalists typically rest—that Congress could not eliminate both
district court and Supreme Court jurisdiction over the same class of cases—has seldom *1219 been considered.354
Traditionally, arguments based on the assertedly mandatory language of article III have been embarrassed by the Judiciary
Act of 1789, which is often viewed as a repository of insight into the intended meaning of article III. 355 The original
Judiciary Act withheld both lower court and Supreme Court jurisdiction in many of the categories of cases listed in article
III.356 But objections founded on that history are at least substantially avoided by the recent Nationalist argument of
Professor Amar.357 According to Amar, Congress’s constitutional obligation to vest jurisdiction in some federal court is
subject to an important limitation derived from article III, section 2, which recites the nine classes of cases to which the
judicial power ‘shall extend.’358 In the first three classes—but only in the first three—does the textual language provide that
the judicial power shall extend to ‘all Cases.’ These three classes encompass cases defined by subject matter; and the subject
matter that they specify is of the highest national interest, including all cases ‘arising under’ the Constitution, laws, and
treaties of the United States.359 In contrast with the first three, the final six jurisdictional categories, which are defined in
terms of parties, rather than subject matter, lack the mandatory, inclusionary reference to ‘all Cases.’ Amar argues that this
disparity limits Congress’s obligation to provide a federal tribunal to cases in the first three categories, which, he argues, are
the most important. By achieving as much consistency as he does with the language of *1220 article III with the 1789
Judiciary Act,360 Amar adds enormously to the plausibility of the Nationalist model in debates about the congressional power
to control the jurisdiction of the lower federal courts.
Although the dearth of case law makes it difficult to pronounce any sort of concluding judgment about the current balance of
power between the Nationalist and Federalist models,361 their influence should not be doubted. With textual and historical
evidence available *1221 to support both the Federalist and the Nationalist positions on the congressional power to limit
federal jurisdiction, it is difficult to proceed without a guiding theory of judicial federalism. And if either Federalist or
Nationalist assumptions enter the analysis, their power is likely to prove conclusive.
2. ‘External’ Restraints on Congressional Power
In debates over whether Congress could exclude federal district court jurisdiction of school prayer cases, the question
whether state courts enjoy constituional parity with the lower federal courts under article III may have a slightly abstract
quality. This is because Congress’s power to define federal jurisdiction is clearly limited by constitutional provisions other
than article III, notably those establishing due process and equal protection norms. No one, for example, believes that
Congress could withdraw jurisdiction of cases brought by plaintiffs who are Black or Jewish. 362 To consider all possible due
process and equal protection restraints on Congress’s power to restrict the jurisdiction of the lower federal courts would carry
the discussion far into the domain of substantive constitutional law. But the familiar debates partake sufficiently of the
assumptions of the Nationalist and Federalist models to merit a few words.
Although the literature includes a variety of due process and equal protection objections to statutes that carve away federal
jurisdiction over congressionally disfavored rights, 363 nearly all depart from the fundamental Nationalist premise that the
Constitution attaches high priority to the prompt and effective enforcement of constitutional rights. The purpose of most
‘jurisdictional gerrymandering’364 statutes is transparently to hinder the enforcement of the affected constitutional norms, if
not to invite state court defiance of federal authority. 365 According to a Nationalist argument, this purpose is constitutionally
invalid.366 If legislation is so motivated, and if it effectively invites defiance of binding Supreme Court precedent, the
Nationalist model holds that it must, under prevailing due process *1222 and equal protection principles, fail of
constitutionality.367
The Federalist model provides reasons for rejecting this claim. According to a Federalist reading of the Madisonian
Compromise, the motive of registering dissatisfaction with the substance of federal judicial decisions is by no means
impermissible. On the contrary, the point of making the existence of lower federal courts and the scope of their jurisdiction
discretionary with Congress was to license political judgments about the desirability of reliance on state tribunals. 368 Nor do
Federalist premises permit the assumption that jurisdictional gerrymandering would burden the enforcement of federal rights.
If the state courts fulfill their obligations to enforce federal law, as the Federalist model presumes that they will, there is no
reason to prefer federal to state tribunals as the guarantors of federal rights. 369
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Although reflecting no definitive choice between the models, a number of congressional statutes and Supreme Court
decisions are most easily explained by Federalist principles. For example, Congress has frequently denied federal jurisdiction
of suits seeking to enforce particular constitutional rights through particular judicial remedies. Federal statutes dating to the
New Deal era thus provide that constitutional suits to enjoin the enforcement of state tax statutes370 and public utility rate
orders may not ordinarily be brought in a federal court. 371 Nor has the Supreme Court interposed objections to such
prohibitions. On the contrary, in Lauf v. Shinner372 the Supreme Court specifically upheld legislation that denied federal
jurisdiction to issue certain labor injunctions. But the specific arguments formulated by recent Nationalist theorists were
neither clearly raised nor clearly *1223 rejected in the most relevant Supreme Court cases.373 The due process and equal
protection questions presented by jurisdictional gerrymandering statutes therefore remain open. When and if they are decided,
the Nationalist and Federalist models are likely to be in the forefront of the argument.
E. A Summary Diagnosis
The topics that I have selected to demonstrate the power of the Federalist and Nationalist models have a partly random
quality. Each subject area was chosen to illustrate doctrinal developments and academic debates that show the models’
influence. Yet other topics might have served equally well—for example, questions about the proper scope of federal
common law,374 the correct interpretation of the civil rights removal statute,375 or Pullman abstention376 and related
doctrines.377
The addition or substitution of topics would not, however, alter the diagnosis that is implicit in the descriptions offered thus
far: federal courts law is contradictory and unstable at its foundations, because it credits the antinomic premises of the
Federalist and Nationalist models and oscillates between them. Supreme Court decisions accept and legitimate the premises
of both models. Yet both models cannot be valid; each denies the most fundamental claims of the other. As long *1224 as
both models are implicitly, if only partially, accepted in the law, each case presents an occasion for choice—and
contradiction, unpredictability, and volatility are only to be expected. The challenge is to fashion a prescription appropriate to
the diagnosis.
III. PRESCRIPTION: LAW BETWEEN THE POLES
This Part examines the prescriptive implications of the description and diagnosis offered thus far. But implications are not
deductions; the movement from description to diagnosis to prescription does not always follow a path of linear progress. I
therefore begin by examining and rejecting some tempting conclusions about the current predicament of federal courts law
that turn out to be misguided. After this preliminary inquiry has brought some of the problems of prescription more sharply
into focus, I argue in favor of an approach that locates itself between the poles defined by the Federalist and Nationalist
models. Affirmatively, the prescribed approach celebrates tension, rather than attempting to resolve it, but eschews rhetorical
excess and its attendant contraditions. Needed, I argue, are modes of thought and discourse that more adequately capture the
complexity and richness of American federalism and that check destabilizing swings between the Nationalist and Federalist
extremes.
A. Choice Between the Models
One possible conclusion would be that it is necessary or desirable simply to choose between the Federalist and the Nationalist
models. The prescribed course would be to determine which of the models was correct, or more nearly so, and to act
consistently with its dictates. But this approach, at least if stated in strong form—that all federal courts questions ought to be
resolved to accord with either the Federalist or the Nationalist model—underestimates the diversity and complexity of the
problems requiring resolution.
The Federalist and Nationalist models were defined initially as collections of premises. Much of the subsequent discussion,
however, has aimed to show how those premises function together to define angles of approach to nearly all questions of
judicial federalism. It is this aspect of the models—their provision of determinative perspectives on a very large range of
federal courts questions—that makes choice between them unattractive.
*1225 The problem, stated somewhat summarily, is that the perspective of each model obscures the genuine power and
insights of the other. Viewed together, the Federalist and Nationalist models define a pervasive tension in the law and
literature of judicial federalism. Perceived individually, however, each stands not only in support of, but also in conflict with,
a set of norms that is fundamental in the constitutional scheme. It is the fundamentality of the models’ underlying values that
explains not only why both persist, but also why even those judges, justices, and theorists most associated with one model at
least occasionally speak from the perspective of the other. It is easy to cite cases in which a unanimous Supreme Court has
reached a Nationalist result that was explained in resoundingly Nationalist rhetoric. Prominent examples include Mitchum v.
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Foster378 and Fitzpatrick v. Bitzer,379 the latter authored by no less staunch a Federalist than Chief Justice Rehnquist. On the
other side, many Federalist assumptions are so firmly entrenched in the law that they are never seriously challenged—for
example, the presumption that Congress, in the absence of decisive indications to the contrary, would intend the state courts
to exercise concurrent jurisdiction over federal causes of action. 380 As a further indication of the power of the Federalist
model, even normally Nationalist judges and justices, in seeking to explain their decisions in a particular case, easily adopt
Federalist rhetoric.381
When the models are viewed in conjunction, it thus becomes clear that the choice of one would entail too costly a sacrifice of
the values underlying the other. Some perspective that accommodates the insights of both clearly possesses strong prima
facie attractiveness. But can the Federalist and Nationalist models be abandoned so easily?
*1226 B. Renunciation of the Models
The conclusion that the Nationalist and Federalist models ought to be rejected is not far from correct. But the problems
surrouding that conclusion are sufficiently subtle to require further discussion. In particular, it is important to recall that the
models play at least three ideal typical roles: they represent rhetorical paradigms, structures of thought, and measures of the
implications of fundamental assumptions and values in particular disputes.
My argument against simply choosing between the Federalist and Nationalist models has treated the models perhaps most
importantly as structures of thought. In the face of vague, ambiguous, or conflicted sources of legal authority—constitutional
text, evidence of the framers’ intent, judicial precedent, and so forth—the Federalist model reflects a set of values and
assumptions that call for all arguable doubt to be resolved in one way, while the Nationalist model dictates a different
resolution. It is difficult, however, to specify the practical significance of calling for the renunciation of ideal typical
structures of thought. By definition, an ideal type is an artificial construct, not a reflection of the views that any particular
person or group of people actually holds. 382 The utility of the models as structures of thought lies in their definition of ‘pure’
but artificially designed sets of assumptions and beliefs that particular people might approximate. This being the case, it may
well be that there are no perfect Federalists and no perfect Nationalists; there are only people who approximate the models
more or less closely. As a result, to say that the models should be renounced as structures of thought is only to say that people
ought not to approximate too closely the background assumptions and patterns of analysis that the models exemplify. Left
open, at least for the moment, are how far from the models any particular person ought to move and to what alternative set of
premises.
Insofar as the Federalist and Nationalist models function as ideal types of rhetorical structures, however, the practical import
of the call for their renuciation is clearer. A large number of judicial opinions reflect the rhetorical excesses of the Federalist
and Nationalist models. It is the law’s embrace of incompatible Federalist and Nationalist rhetoric, more even than its pattern
of results, that supports the charge that federal courts laws is internally contradictory and therefore *1227 inherently unstable.
In this context, the prescription that follows the diagnosis is rather plain: judicial opinions ought to avoid exaggerated
rhetorical claims, the implications of which are likely to seem unacceptable when applied to other issues and other contexts.
It may be easier, in explaining a legal conclusion, for a judge or scholar to avail herself of the rhetorical arsenal furnished by
either the Nationalist or Federalist tradition. But the judicial function includes a responsibility for the development of a body
of law that permits fair and predictable application. Polar swings between incompatible Nationalist and Federalist rhetoric
represent a betrayal of this central judicial charge. Federal courts law needs a reformed rhetorical tradition that more closely
aligns judicial explanations with principles whose implications are reasonably acceptable across a range of cases.383
A reformed approach to federal courts issues would not dispense entirely with the Nationalist and Federalist models. The
models would continue to function as important indicia of the implications of particular decisions for the critical, competitive
values underlying judicial federalism. But the models’ status as measuring rods should be disjoined from their current, more
decisive functions as rhetorical structures and salient structures of thought.
*1228 C. Toward a Model-Free Jurisprudence?
If the Federalist and Nationalist models ought both to be renounced, a question immediately arises about the next step in the
agenda for reform. Are new models and background assumptions needed, or should reliance on models, assumptions, and
background premises be abandoned altogether? An impulse to call for total rejection may spring from the intuition that the
Federalist and Nationalist models somehow reflect the corruption of adjudication by politics. The idea, crudely stated, would
be that judges’ background or theoretical understandings frequently reflect their personal political preferences and that, in
weighing legal arguments and historical and other evidence, both Nationalist and Federalist judges allow either their
assumptions or their straightforwardly normative beliefs to distort their legal judgment.
However tempting it may be, the conclusion that federal courts law ought to renounce reliance on assumptions and premises
that are less than value-neutral is not viable. The reasons could be traced deep into the philosophy of law, 384 but also permit a
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plainer explanation that emphasizes the context in which the Federalist and Nationalist models exert their characteristic
influence—one in which the legal materials that bear most directly on the resolution of a question either are ambiguous or
point in conflicting directions. Nearly any of the controverted questions discussed earlier would suffice as an illustration.
Take again as an example the question whether the eleventh amendment bars federal jurisdiction of all suits against
unconsenting states or only of suits in which jurisdiction is predicated solely on the basis that a state is a party.385 Identifiable
bits of historical evidence suggest that the eleventh amendment was intended to constitutionalize the states’ immunity from
suit in federal court.386 Yet other evidence, at least as consistent with the constitutional language, points to a far narrower
interpretation: that the amendment forbade federal jurisdiction only of suits arising under state law in which federal
jurisdiction could be founded only on diversity of citizenship. 387
*1229 Moreover, within our modern constitutional practice, few legal questions are determined solely by reference to the
best evidence concerning the framers’ intent.388 The effort to identify the framers’ intent is, at least in part, the search for a
past that is ‘usable’389 in the context of a constitutional calculus that also gives weight to judicial precedent, arguments of
constitutional theory, and concerns of normative attractiveness. 390 At least where other evidence and arguments are nearly in
equipoise, the most functionally attractive conclusion—the one that fits best with a general understanding of the
Constitution’s allocation of governmental responsibilities, with judicial precedent, and with modern practical needs—ought
to be preferred. Thus does the web of theory and value become as essential to the process of constitutional decisionmaking.
Similar pressures exist in discerning congressional intent. Consider again the general problem of interpretation posed by
Reconstruction jurisdictional and remedial statutes. Passed in an atmosphere of hostility to state courts, section 1983, for
example, reasonbly can be construed as prescribing the most far-reaching changes in traditional federal relations. 391 Yet in
many cases the specific intent to do so was not made explicit. This gives credibility to the competing claim that Congress,
had it seriously wished to revise long-settled practices, would have said so expressly.392
How, then, should specific questions of statutory interpretation—for example, whether section 1983 displaces the res judicata
rules embodied in the full faith and credit statute393—be resolved? If the question is considered purely one of congressional
intent, it is difficult, if not impossible, to proceed without the aid of a presumption when Congress did not address itself
specifically to a disputed question. Moreover, as much here as in the constitutional context, the presumption could hardly be
innocent of theory. The interpretive process requires at minimum a historical theory concerning the general intentions *1230
of the Reconstruction Congresses.394 Nor, again as in the constitutional context, is it clear that the search for congressional
intent should both be divorced from contemporary concerns of policy and regarded as dispositive of current problems of
judicial federalism. Once again, the search is frequently for a usable past,395 and the criterion of ‘usability’ is substantially
normative. It thus seems unavoidable that theory, assumptions, and values are necessary to decisionmaking in hard federal
courts cases and that there can be no neutrality, if neutrality means that cases should be decided without reference to
background understandings, presumptions, or even value preferences. 396
In emphasizing the extent to which background assumptions and understandings are important to the resolution of federal
courts questions, I do not, I should make clear, mean to deny the partial autonomy of law from politics or to suggest that
judges and commentators should feel uninhibited about the pursuit of political ends within the framework of legal analysis. In
developing a background theory of judicial federalism, conscientious judges and theorists are constrained by factors—
constitutional text, historical evidence, judicial precedents, and so forth—other than their value preferences.397 Rarely will all
of the ‘data’ to be explained by compatible with every set of mediating assumptions, much less with all particular outcomes,
that individual judges might find congenial. Indeed, it is part of my objection to the Federalist and Nationalist models that
they are incompatible with too much that is fundamental to American federalism. A further restraint on judicial
decisionmaking, which is at least as powerful, ought to emerge from the evidence or legal materials most relevant to the
decision in a particular case. It is a feature of many federal courts debates—or so I have argued—that the relevant materials
are sufficiently indeterminate to support, or at least not to foreclose, alternative resolutions. But when the evidence points
with sufficient clarity to only one conclusion, as it sometimes does, then the conscientious judge must reach it, however badly
it may accord either with previously *1231 held theories of judicial federalism or with personal normative preferences. 398
But the findamental point remains. To do their jobs effectively, judges and justices need theories of judicial federalism. The
problem with the Nationalist and Federalist models is not that they reflect contestable premises or values. It is that their
values and premises are overstated and substantively misguided.
D. Adjudication Between the Poles
With the Nationalist and Federalist models both rejected and with the abandonment of all background assumptions and
guiding values adjudged impossible, the general form of my prescription is clear. Thought and argument about issues of
judicial federalism ought to occur between the poles defined by the Nationalist and Federalist models.399 The arguments
yielding this conclusion, it should also be clear, have two dimensions. First, reliance on the rhetorical structures associated
with the Federalist and Nationalist models gives rise to contradiction and instability within the case law. With the Supreme
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Court unwilling to adhere consistently to either one model or the other, alternate invocation of the models’ competing
premises sows confusion. Second, this problem cannot reasonably be solved by a choice between the models, since both
suffer from their dismissal of the other’s genuine insights.
In arguing for a federal courts jurisprudence that functions between the Nationalist and Federalist poles, I have no sharp
vision of what the best possible model might look like. But it may be useful, nonetheless, to offer some examples of how
reasoning without strong Nationalist or Federalist assumptions might proceed and to identify some mediating conclusions
and doctrines that commend themselves to a between-the-poles perspective. I begin with a relatively detailed *1232
discussion of the first substantive issue that I used to illustrate the influence of the Nationalist and Federalist models—the
relationship of section 1983 to the strictures and policies of the Anti-Injunction Act. The other topics addressed in my earlier
doctrinal critique then receive more abbreviated consideration.
1. Between Mitchum and Younger
In considering the relationship between section 1983 and the letter and spirit of the Anti-Injunction Act, two questions should
be separated: Should section 1983 count as an exception to the Anti-Injunction Act (the issue in Mitchum v. Foster)400 and, if
so, what principles should govern the availability of federal injunctions against state judicial proceedings (the issue in
Younger v. Harris)?401
a. The Mitchum Issue
The question whether section 1983 constitutes an exception to the Anti-Injunction Act, as we have seen already, admits of
easy resolution based on either Federalist or Nationalist premises. 402 The aspiration of a perspective from between the poles
cannot be to avoid an outcome that comports with either one model or the other; section 1983 either does constitute an
exception (the Nationalist conclusion) or it does not (the Federalist conclusion). The aims, rather, are a heightened sensitivity
to all relevant considerations and an explanation of the result that avoids rhetorical excess.
The substantive problem arises from three congressional enactments. The first is the original Anti-Injunction Act, enacted in
1793 and long construed by the Supreme Court as subject to a variety of nonenumerated exceptions; 403 the second is section
1983; the third is the revised Anti-Injunction Act passed in 1948. In considering the relationship of section 1983 to the
original Anti-Injunction Act, it is surely significant that section 1983 authorizes injunctive remedies. But it is equally relevant
that the statute, on its face, says nothing about injunctions against state judicial proceedings. Efforts to identify congressional
intent from the legislative records also encounter *1233 irreducible uncertainties. The concept of a group intent is
philosophically elusive under the best of circumstances,404 and the absence of floor debates about the issue of injunctions
against state judicial proceedings gives the construction of a legislative intention an especially unguided character. This is not
to say that reference to legislative intent ought to be abandoned;405 it is only to recognize that the inquiry aims more at a
constructive interpretation of congressional purposes, conceived somewhat abstractly, than at a historically shared
understanding that can be discovered as a matter of fact.406
With the concept of legislative intent inderstood in this way, the context of the historical debate about section 1983 becomes
highly significant. Section 1983 originated as a provision of the Ku Klux Klan Act of 1871, a major piece of Reconstruction
legislation that occupied the forty-second Congress for a period of several months. 407 The focus of concern, as the title of the
legislation suggests, was violence committed by the Ku Klux Klan, frequently abetted or at least tolerated by southern
officials. In this context, leading proponents of the Ku Klux Klan Act voiced passionate skepticism about the willingness of
state courts to vindicate federal statutory and constitutional rights. 408 Particularly in light of floor statements about the
necessity of substantial revisions of traditional state/federal relations,409 it is hard to conceive that proponents would not have
meant to provide a federal judicial remedy against state judicial enforcement of unconstitutional state laws that fell within the
core of Congress’s concern—for example, against the cynical enforcement by southern judges of racially discriminatory
statutes affecting fundamental rights.410 This, of course, was not the kind of state judicial action that gave rise to the lawsuit
before the Supreme Court in Mitchum. Nevertheless, at least with respect to a core of historically definable wrongs, the
conclusion seems irresistible that the central historical purposes of section 1983 *1234 require an exception to the AntiInjunction Act and that the forty-second Congress would have intended such an exception.
It is arguable, of course, that the forty-second Congress, though intending to authorize injunctions against state judicial
proceedings in cases of a historically exceptional kind, would not have wanted to override state sovereignty and efficiency
interests in every instance in which a federal plaintiff might seek to enjoin a state criminal prosecution. 411 Nevertheless, a
conclusion that section 1983 constitutes an across-the-board exception to the Anti-Injunction Act need not entail a broad
elevation of Nationalist over Federalist alues. The forty-second Congress enacted section 1983 against the background of the
historical traditions of equity jurisprudence, which made the award of injunctions a matter of equitable discretion, not of
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right. Retention of equitable discretion in the award of injunctions, at least in cases falling outside the core historical
problems that triggered the enactment of section 1983, is thus a reasonably imputed legislative intent. Moreover, a
construction of the statute that retains a degree of judicial discretion permits attractively fine-tuned accommodations of
competing Federalist and Nationalist values in particular cases. This judgment about the significance of equitable discretion
forms an important part of the backdrop to my between-the-poles assessment of whether section 1983 should be viewed as a
historically intended exception to the Anti-Injunction Act. Although I would conclude that section 1983 was intended to
authorize injunctions against state judicial proceedings, I would reach this broad conclusion—rather than trying to frame the
intent as linked to the types of state court actions and inactions that were at the center of Congress’s concern—partly in
reliance on a related judgment that the award of injunctions should be subject to the equitable discretion of the federal courts.
I shall say more about equitable discretion shortly.
First, however, it remains to consider an additional layer of complexity to the problem of whether section 1983 represents an
exception to the Anti-Injunction Act. Congress revised the Anti-Injunction Act in 1948. Although the surrounding history is
complicated,412 two facts are critically relevant. First, however section 1983 might have *1235 related to the older version of
the Anti-Injunction Act, it can create an exception to the revised statute only if it qualifies as ‘expressly authorized by an act
of Congress.’413 Second, the Reviser’s Note states that the purpose of the revised section 2283 was not to toughen the
traditional anti-injunction policy but, on the contrary, to restore the law’s prior meaning in the wake of a surprisingly
restrictive Supreme Court decision.414 The issue, then, is whether section 1983, which says not a word about the antiinjunction statute, constitutes an exception to section 2283 that is ‘expressly authorized by act of Congress.’
This is a very hard question.415 The statute, on its face, seems to mandate a strongly Federalist rule of inference: in the
absence of express statements to the contrary, it must be assumed that the Congress would not have wanted to authorize
injunctions against pending state judicial proceedings. But the Reviser’s Note, which says that the statute’s purpose was to
restore the law as it was previously understood, suggests that Congress would not have intended this presumption to be as
strong as the statutory language suggests. Under these rather peculiar circumstances, I would conclude that section 1983
constitutes an expressly authorized exception to the revised Anti-Injunction Act now codified as section 2283. Although the
Reviser’s Note cannot license recognition of exceptions that the statute does not permit, 416 it does suggest the permissibility
of some loosenses in determining when the statute and its exceptions apply.417 Here, section 1983 specifically authorizes
injunctive remedies, and, as I have argued already, its core historical purposes would at least sometimes require enjoining
state judicial proceedings. These are ample reasons for holding section 2283 inapplicable.
*1236 In reaching this conclusion, I would have to acknowledge that my interpretation of the legally pertinent materials is
colored by my preference to reach, if reasonably possible, a particular substantive result. Substantively, I would prefer a
between-the-poles structure of judicial federalism that sometimes, although not routinely, permits federal injunctions againt
state judicial proceedings. To my mind, ‘routinely’ and ‘never’ reflect the Nationalist and Federalist positions that
misrepresent the vital tension at the heart of American federalism. But a between-the-poles approach ought to be
methodologically fair and open, not just substantively centrist, and the arguments are troublingly powerful that section 1983
cannot qualify as an ‘expressly authorized’ exception to section 2283. Although not shaken in my own conclusion, I know
that not everyone who favors a between-the-poles approach to judicial federalism will share my judgment on this difficult
issue. There is enough space between the poles for reasonable people to differ.
b. The Younger Issue
As viewed from between the poles, questions about the role of equitable discretion under section 1983 are both difficult and
diverse. The facts of Younger v. Harris418 provide a useful point of entry. Younger arose when Harris was charged with
violation of a California antisyndicalism statute of dubious constitutional validity. Although Harris could have raised the
constitutional question as part of his criminal defense in state court, he instead sought a federal injunction against the state
prosecution. Because the Anti-Injunction Act does not bar suits under section 1983, the question was whether the federal
district court ought to rule on the merits or should instead invoke its equitable discretion to abstain.
Perceived from between the Nationalist and Federalist poles, the purposes and legislative intent of section 1983 are relevant
but not sufficiently clear to be independently controlling. Did the forty-second Congress intend, as Nationalists suggest, to
compel federal adjudication?419 Or, as Federalists maintain, did the framers invite a continued implementation of notions of
federalism that have survived *1237 essentially unchanged since the formative years of the republic? 420 A federal injunction
against pending state judicial proceedings impinges greatly on fundamental Federalist values. Because a state judge could
equally well order a prosecution dismissed on federal constitutional grounds, a federal injunction often conveys the message
that state courts cannot be trusted to resolve federal issues fairly. Moreover, a federal action commenced after state
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proceedings have commenced imposes on the state the burdens of dual litigation and may disrupt the conduct of a trial in
state court.
As I have argued already, the purposes and legislative intent underlying section 1983 require this deep an encroachment on
the states’ traditionally sovereign prerogatives in cases within the historical core of the statute’s concerns. Outside the core,
however, matters are at least more doubtful. Moreover, the traditions of equity jurisprudence, of which the forty-second
Congress was presumably aware, clearly established that injunctions were a matter of discretion, not right, and that they
would seldom issue against a pending criminal prosecution. 421 Under the circumstances, my between-the-poles conclusion
would be that equitable discretion continues to exist under section 1983, but should be exercised in light of the statute’s
substantive purposes and the legislature’s reasonably ascertainable intent. 422 Those purposes and intent are clearest at the
core, and in core cases they should be accorded controlling weight. In cases such as Younger, however, the Court should
shoulder the responsibility for developing equitable guidelines that are responsive to modern conditions. Its task, which is
informed by history but is substantially one of judicial lawmaking, is to reach a sensible accommodation of Nationalist and
Federalist values in a framework of competition and balancing.423
When judicial balancing then occurs, certain normative disagreements, measurable by reference to the Nationalist and
Federalist ideal types, may prove irreconcilable. But there is still hope for limited consensus between the poles. This hope
resides in the acknowledgement *1238 that Nationalist and Federalist values are differentially implicated in different kinds of
disputes. A short list of some relevant factors will illustrate this point:
Pending or nonpending prosecution. It is more disruptive of state processes, and arguably more of an insult to state judges,
for a federal court to enjoin a pending prosecution than to entertain a suit for an injunction when no state action has yet been
filed.424 As a result, Federalist values are more strongly threatened in cases involving pending prosecutions.
Criminal or civil action. The state is likely to have a stronger sovereign interest in the enforcement of its criminal than of its
civil law.425 An injunctions against civil proceedings, whether pending or nonpending, is therefore a lesser intrusion
(although still an intrusion, to be sure) on traditional state sovereignty interests.
Past, future, or continuing conduct. The traditional rule against enjoining criminal prosecutions makes most sense when a
criminal defendant seeks to challenge the constitutionality of state law as applied only to past conduct that she has no plan to
repeat. When only past conduct is involved, there is relatively little threat of ‘chilling’ future action that is constitutionally
protected and possibly socially desirable.426 As more future conduct is involved—because the criminal defendant intends to
continue the activity that led to prosecution, or because others plan to engage in the same or similar activity—the Nationalist
concern to ensure efficacious protection of federal rights becomes more powerful. Even if a state criminal court were as
competent as a federal court, the federal court adjudicating a civil action can give interlocutory and class-based relief that a
criminal *1239 court generally cannot.427
Nature of the relief sought. Depending on how it is drafted, an injunction may often be more intrusive on traditional state
sovereign prerogative than a declaratory judgment. 428 The former functions as a coercive order against state officials; the
latter may leave more avenues for prosecutors to prosecute other persons and thereby obtain narrowing construction that
would bring state statutes within constitutional bounds. 429 But the degree of a federal remedy’s intrusion on state judicial
processes defies measurement in terms of a simplistic distinction between declaratory and injunctive relief. Much depends on
the way that either an injunction or a declaratory judgment is drafted and on whether the plaintiff is an individual, a group of
named individuals, or a much broader class. The broader the plaintiff class, the more far-reaching the res judicata and
collateral estoppel effects of a federal judgment,430 and thus the deeper the intrusion on Federalist values.
These observations do not, of course, point directly to a conclusion about how particular disputes ought to be resolved. On
the one hand, the Nationalist interest in avoiding chill of constitutionally protected conduct can best be protected by enjoining
a statute’s enforcement against a broadly defined class. 431 On the other hand, an injunction of this kind frustrates the state’s
procurement of narrowing constructions and the enforcement of its statutes to the greatest possible degree. When balancing
occurs between the poles, however, it is crucial to know precisely what is at stake.
Although factors such as those that I have cited seldom yield algorithmic solutions, they help to illustrate that all cases
involving calls for equitable restraint under section 1983 do not present identical issues. Younger, for example, presented an
extremely strong case for federal abstention: (i) a prosecution was pending in state court; (ii) the action arose under the state’s
criminal law; (iii) the only plaintiff to have standing apparently made no allegation that the threat of prosecution interrupted a
continuing course of conduct; and (iv) a relatively *1240 intrusive injunctive remedy was sought. The conjunction of these
factors presumably helps to explain why even so Nationalist a Justice as William Brennan concurred in the Court’s
disposition of the case. But while I think that Younger was rightly decided, many of its extensions and applications encroach
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too far on Nationalist values to be defensible outside of the extreme position defined by the Federalist model. There are too
many Younger-type issues for me to address any in much detail. In general, however, my between-the-poles strategy would
be to attempt to accommodate Nationalist and Federalist concerns by pursuing three guiding precepts with something less
than unbending rigor. First, in cases, in which a named plaintiff presents a ripe and justiciable claim to relief from the threat
of prosecution based on future conduct, federal courts generally ought to exercise their jurisdiction. Such cases involve
claims for relief not available in criminal prosecutions;432 generally they will not disrupt pending state actions;433 and the
threat of repeated prosecutions, if not alleviated by prospective relief, would often chill constitutionally protected conduct.
Second, however, the scope of discretionary remedies should generally be limited to permit state prosecutors to proceed
against persons who are not parties to the action. This approach would facilitate efforts by state prosecutors to obtain
narrowing constructions of overbroad statutes from the state judiciaries. 434 Third, I would view with skepticism—although
without irrebuttable presumptions—particular claims that a state possesses sufficiently important interests in the conduct of
civil litigation in its courts or administrative agencies to require federal abstention. But I am at least as concerned with modes
of reasoning as with ultimate conclusions. Judicial opinions elaborating the Younger doctrine should move quickly beyond
ritualistic incantation of general values and should eschew mechanical formulae for the identification of congressional intent.
In their place should come careful, context-specific identifications of *1241 competing concerns and the development of
standards for the exercise of equitable discretion on a case-by-case basis.
2. Other Issues from Between the Poles
a. Respect for State Judicial Proceedings
Like the Younger abstention, res judicata and collateral estoppel doctrines and the federal courts’ habeas corpus jurisdiction
raise questions about appropriate federal respect for state judicial proceedings.
i. Res Judiciata and Collateral Estoppel
As I discussed earlier, res judicata and collateral estoppel issues involving the full faith and credit statute arise acutely in
actions under section 1983. Although some tension between the two statutes is irreducible, it merits emphasis that not all
section 1983 actions are alike. The historical purpose of section 1983 and its accompanying jurisdictional statute was to give
plaintiffs the option to sue in a federal forum.435 There is no requirement that a plaintiff, even in a suit under section 1983,
litigate in a federal rather than a state court.436 In section 1983 actions that implicate res judicata and collateral estoppel
issues, it therefore becomes relevant to ask why the initial judgment, whose preclusive effect is in issue, came from a state
rather than a federal court. In a case in which the federal plaintiff selected the state forum or failed to remove a removable
action, the argument for giving full effect to section 1738 at its strongest; the section 1983 policy of creating a fair
opportunity to litigate in a federal forum is not implicated at all.
To me, however, matters look different when, as in Allen v. McCurry,437 issue preclusion in invoked against a section 1983
plaintiff who appeared involuntarily in the state litigation as a criminal defendant. Commentators as diverse as Professors
Cover438 and Bator439 have argued that state trial courts and federal civil courts are likely to possess distinctive perspectives.
When a federal constitutional issue is abstracted from the context and pressures of a criminal *1242 trial, it is no derogation
of the state trial court to say that a federal civil court may view that issue differently, or that the federal court’s perspective is
one that section 1983 invites plaintiffs to solicit.
My conclusion that Allen v. McCurry was wrongly decided on its facts is not the only possible between-the-poles assessment,
but neither is the between-the-poles label wholly conclusory. In seeking a mediating solution between the values and
assumptions underlying section 1983 and those embodied in section 1738, a common assumption of between-the-poles
stances might be that the law should draw distinctions on a context-sensitive basis.440
ii. Habeas Corpus.
Subject to the fourth amendment exception carved out in Stone v. Powell,441 the federal district courts generally have
jurisdiction to relitigate questions of law duly raised in state criminal proceedings. Although the reigning doctrine is
substantially Nationalist, it does not carry Nationalist values to their logical extreme, since relitigation is routinely available
only for questions of law, not questions of fact. 442 This distinction reflects sensitivity to Federalist values; it would be much
more intrusive on legitimate state interests to require routine relitigation of issues of fact—which would often entail a
substantial *1243 repetition of a criminal trial—than to countenance relitigation of questions of law. Moreover, the prevailing
relitigation rule of Brown v. Allen443 has at least one effect that ought to be viewed as salutary for reasons having little to do
with the familiar tension between Nationalist and Federalist values: it makes the habeas corpus jurisdiction of the federal
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district courts and the appellate jurisdiction of the Supreme Court roughly coextensive in state criminal cases. 444 This
jurisdictional parallelism reduces pressure on the appellate docket of the Supreme Court, since the Court knows that legal
issues over which it declines to exercise direct review will still be subject to federal habeas jurisdiction. This is an important
consideration that too easily falls out of view in a pairing of Nationalist against Federalist arguments. Here, as elsewhere, a
between-the-poles approach is distinguished by its openness to arguments outside the Nationalist and Federalist paradigms.
Determining the appropriate rule in habeas cases involving procedural defaults is enormously difficult. As the Federalist
model emphasizes, the states must be permitted to establish reasonable procedural rules, and some preclusionary sanctions
may be necessary to create incentives for conformity. 445 But Nationalist values also demand recognition. Pressure should be
put on the states to develop rules that truly are reasonable. 446 Moreover, even under reasonable rules, substantive
miscarriages of justice, which typically arise through the fault of the lawyer, not the client, 447 should be correctable. These
considerations yield no easy or meachanical rules. As an example of between-the-poles reasonableness, however, I would
commend the thoughtful and meticulous study of my colleague Daniel Meltzer, who has illustrated in detail one shape that
mediating doctrines might take.448 Two aspects of his approach deserve attention. First, throughout his analysis, Meltzer
manifests sensitivity to the *1244 competing Nationalist and Federalist interests at stake.449 Second, in balancing those
interests, he insists on the relevance of context.450 Proceeding in this vein, Meltzer concludes that the pertinent habeas corpus
doctrine should embody federal common law standards that not only define the availability of federal collateral review but
also fix obligations of the state courts to forgive procedural defaults with respect to federal issues. 451 Among the virtues of
Meltzer’s proposal, it would hasten vindication of federal rights in the state courts and would tend in the long run to reduce
frictions between the state and federal systems by giving state courts both the opportunity and the obligation to pass in the
first instance on more constitutional claims.452
b. State Sovereign Immunity and the Eleventh Amendment
The eleventh amendment generates a set of issues on which my own considered convictions, though I view them as betweenthe-poles, have a somewhat Nationalist flavor. Like federal sovereign immunity, state immunity under the eleventh
amendment threatens the rule of law.453 A sensible federal system cannot permit the states to violate federal norms and then
raise state sovereign immunity or the eleventh amendment as an impenetrable shield. My own preference, which recent
scholarship has shown to be reasonably consistent with the text and history of the eleventh amendment, 454 would therefore be
for overruling Hans v. Louisiana455 and recognizing that the states are vulnerable to suit in federal court in actions arising
under the Constitution and, where Congress so directs, under the laws of the United *1245 States.456
Despite overtones of Nationalism, this position need not ignore central Federalist concerns. As Professor Shapiro has
observed, many of the legitimate functions currently served by eleventh amendment doctrine could better be performed by
‘flexible doctrines of construction, comity, and restraint.’457 Clear statement rules provide one example. Although it should
be held that Congress possesses power under the commerce clause to subject the states to suit in federal court, the special rule
of the states in our federal system makes it reasonable to presume that Congress would not take this step lightly. Requiring a
clear statement of congressional intent to do so thus constitutes a mediating formula that even predominantly Nationalist
writers have accepted.458 Similarly, when a state or its officers are sued on mixed state and federal constitutional grounds, a
between-the-poles approach would often call for the invocation of Pullman abstention, a flexible doctrine that permits a
federal court to stay a pending federal action until the plaintiffs have had an opportunity to pursue resolution of state law
issues in a state court.459 From a Federalist perspective, it is an important benefit of this procedure that the state court’s
decision may not only avert federal judicial involvement with complex state law questions, but may also moot a plaintiff’s
federal claims. A reasonably circumscribed Younger doctrine would also protect some of the Federalist values that underlie
restrictive eleventh amendment holdings.460
c. State Court Powers and Obligations
i. Powers
Although a contrary Nationalist argument has achieved some prominence,461 the best reading of the Madisonian
Compromise presumptively *1246 permits the state courts to prescribe all remedies reasonably necessary to vindicate federal
rights. The supremacy of law requires that this power reside in some court, and if Congress does not want to risk state judicial
interference with federal functions, it need only vest responsibility for enforcing federal norms exclusively in the federal
courts—a step clearly within its constitutional power. At least one prominent Nationalist, Professor Amar, has concurred with
Federalists in reaching this conclusion.462 Indeed, contrary arguments likely owe their origin to the pervasive competition
between the Nationalist and Federalist models. In the context of this rivalry, it is a natural Nationalist impulse to deploy
Tarble’s Case463 to attack the Federalist premise that state courts enjoy constitutional parity with the lower federal courts.
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Following a between-the-poles rejection of this competitive purpose, constitutional questions involving state court powers
should present few difficulties. Questions of statutory construction remain: Did Congress intend particular grants of federal
jurisdiction to be exclusive? Especially in light of the general availability of statutes permitting removal by any federal
official threatened with a coercive state judicial order, a presumption should favor concurrent jurisdiction.
ii. Obligations
With respect to state court obligations to entertain cases involving claimed federal rights, the supremacy clause implies a duty
of the states’ judiciaries to enforce the Constitution. A between-the-poles approach must of course worry about undue
intrusion on the states’ sovereign prerogatives in the management of their judicial systems. But the flexible nature of a
between-the-poles methodology permits accommodation through mediating doctrines. A between-the-poles decisionmaker
can cheerfully concede that there is generally no requirement that any particular state court have authority to entertain
particular claims or award particular remedies. Not every traffic court need be empowered to adjudicate constitutional
disputes; federal intrusion on the states’ discretion to define and limit the jurisdiction of their courts should be minimized.
But the states are subject to *1247 the federal Constitution, and it is not too much to ask that state courts not discriminate
against constitutional causes of action464 or that a state judicial system provide some court with authority to enforce the
Constitution’s guaranties.
In cases involving federal statutes, the first question from a vantage point between the poles involves congressional intent:
Did Congress intend to impose an obligation to adjudicate on the state courts? Where a federal court is open to hear a claim,
the Supreme Court has rightly assumed that Congress would not wish to require the exercise of jurisdiction in the presence of
a nondiscriminatory and otherwise ‘valid excuse.’465 The recent case of Garcia v. San Antonio Metropolitan Transit
Authority466 can be read to imply that this doctrine of statutory construction constitutes the states’ sole judicially enforceable
protection. Where Congress makes its intrusive wishes clear, the Court suggested, the only protection of state sovereign or
quasi-sovereign interests must come from the political safeguards of federalism. 467 From a between-the-poles perspective,
Garcia represents a puzzling abdication of judicial responsibility. Sensible judicial federalism almost always requires linedrawing between state and federal interests. This being so, there is no more justification for judicial abandonment of that role
here than there would be elsewhere.468
d. Congressional Control of Federal Jurisdiction
A between-the-poles analysis of the complex compromises underlying article III demands recognition of considerable
congressional discretion to define, limit, and adjust the jurisdiction of the lower federal courts. At the same time, the federal
judiciary is a coordinate branch within a tripartite division of powers, and it is implausible to construe the Constitution as
allowing the judicial branch to be striped of its partnership role. Beneath these lofty generalities, some conflicts will likely
prove unavoidable, even among those who reject the Nationalist and Federalist models as partial and misleading. I personally
am persuaded *1248 by recent arguments that, although Congress can eliminate either federal appellate or federal original
jurisdiction, it cannot eliminate both in the most important categories of cases. 469 This solution tends toward the Nationalist
end of the spectrum of between-the-poles approaches, since it implies that the state courts do not enjoy constitutional parity
with the lower federal courts in all contexts. In cases in which the Supreme Court retains the power to review state court
judgments, however, I would hesitate to invalidate ‘jurisdictional gerrymandering’ that did not directly burden a suspect
class. If the state and federal courts are likely to possess different perspectives, it seems wholly appropriate for Congress to
prefer that of the state courts to that of the federal courts, subject to federal appellate review.
I should emphasize again, however, that I mean to be illustrating an analytical stance, not providing an algorithm for decision
or a canon of substantively correct results. If there is a common thread to what I would consider between-the-poles
approaches to this issue, it is that positions should be assessed in light of their reasonableness in the context in which they
arise, not tailored to fit a broader theory about the parity or lack of parity of state and federal courts in other doctrinal areas.
E. The Judicial Role in the Separation of Powers
Implicit in my prescription of a between-the-poles approach to questions of judicial federalism is the assumption that the
federal courts, and especially the Supreme Court, have and ought to have a large responsibility for the substance and health of
judicial federalism. There is at least an important difference of degree between my position and that of federal courts
commentators who have argued that, where competing values are at stake, the business of the courts is not to ‘weigh the
competing arguments and [try] to arrive at an acceptable middle ground,’ 470 but to paly a more chaste and nonpolitical role
and to leave ‘balancing’ choices either to Congress or to the processes of constitutional amendment.471 I characterize the
difference as one of degree because, as I have tried to make clear, I wholly agree that constitutional and statutory
interpretation are precisely *1249 that—interpretation, not lawmaking. Judges have a responsibility to reach the best
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understanding of a legal text as it was written, not to author an independent command, and the intent of Congress and the
framers are important components of the interpretive enterprise within our legal tradition. But our interpretive tradition,
which is the repository of the interpretive standards to which conscientious judges must adhere, is not self-defining.472 And I
do, more than some, assume that legal interpreters frequently have not only the power but also the duty to choose between
plausible outcomes on the basis of normative attactiveness. Justifications for this view are implicit in many of the arguments
that I have offered already. A substantial judicial responsibility for substantive outcomes is partly the result of the nature of
the interpretive enterprise, partly the product of the historical accident that the original meaning and intent of so many leading
sources of federal courts law are obscure or ambiguous.
Although more deserves to be said, this is not the place to say it. But it may be useful to identify two strands of argument that
a full justification for the prescribed judicial role under the separation of powers would need to draw upon. First, my view
accords with what courts familiarly do and must do. 473 For courts to act as the legislature’s presumptive partners in creating a
workable body of law is firmly and desirably rooted in the American legal tradition.474 I do not mean to make the point too
simplistically. We have moved from the era of the common law to an ‘age of statutes,’ 475 and constitutional interpretation
has always represented a special case in our legal tradition. 476 But no statutory or constitutional framer could ever foresee all
of the problems, or the changed future circumstances, that time and experience inevitably generate.477 Where large issues of
constitutional and quasi-constitutional policy are involved, it would be a *1250 brash set of framers indeed who would not
wish to enlist the aid of an interpretive community with substantial discretion. Our system not only of interpretation but of
statutory and constitutional lawmaking presupposes flexibility in the courts to accommodate language reflecting core
historical purposes to the perceived needs of changing interpretive contexts.478 The need for the courts to function as partners
in a continuing lawmaking enterprise becomes stronger as statutes and constitutional provisions grow older. 479
Second, a system that locates substantial responsibility in judges for the substantive desirability of outcomes is likely to
generate better results than one that views its judges as disinterested researchers questing for historical meaning and intent.480
As I have argued repeatedly in this essay, it is frequently impossible to tease determinate meaning from legal texts without
undertaking explicit or implicit normative commitments. The power of the Nationalist and Federalist models may frequently
shield interpreters from any sense of personal responsibility for choice; the models may prevent the truly determinative
choice—that of an angle of vision or a set of interpretive premises—from being experienced as a choice at all. But choice is
unavoidable. This being so, the influence of policy considerations should be acknowledged openly, so that assumptions and
premises can be tested and, when found wanting, rejected.
To the extent that argumentative premises, such as those furnished by the Nationalist and Federalist models, function merely
as rhetorical structures providing justifications for results reached on other grounds, the argument that the truly driving
considerations should be brought into the open is even more compelling. So long as alternative and inconsistent sets of
background assumptions are available, judges will seldom experience difficulty in providing a rhetorical explanation for any
result that they may reach. But this situation is pathological. Judges responsible for their decisions in the appropriate sense
would not deploy overstated and inconsistent interpretive assumptions to ‘rationalize’ results on an ad hoc basis while
creating an internally *1251 contradictory body of law. Accepting responsibility for the law that they develop, judges in a
better tradition would relate their considerations of original meaning and the framers’ intent to the world for which they are
crafting their interpretive decisions. They would do so not only with an eye to the particular result but, more broadly, to the
whole body of federal courts law of which judges are at once the custodians and the architects.
CONCLUSION
Two models of judicial federalism—Nationalist and Federalist—pervade contemporary federal courts debates. Viewed
individually, both the Nationalist and the Federalist models locate individual problems in a relatively orderly conceptual
structure. The models thus clarify and simplify historical data and legal arguments for those who accept them. Moreover,
recognizing the influence of the two models helps to unite and clarify a number of debates that otherwise might seem
discrete. When the Nationalist and Federalist models are viewed in conjunction, however, it becomes clear that they function
as engines of distortion and disorder. They are engines of distortion because each is too partial in its perception of judicial
federalism and of the values and evidence central to a number of particular disputes. The familiar models are instruments of
disorder because, although both are partly legitimated by their acceptance in the case law, judicial decisionmaking and
rhetoric tend to swing too sharply and unpredictably between them. The result is a body of law that embodies contradictions,
produces unpredictability, and invites mockery.481 It is time to move beyond the Nationalist and Federalist models and to
establish the dominance of structures of thought and a rhetorical tradition that lie between the Nationalist and Federalist
poles.
Footnotes
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a
Professor of Law, Harvard University. The author would like to thank Akhil Amar, Erwin Chemerinsky, Robert Clark, Louis
Kaplow, Daniel Meltzer, Martin Redish, and David Shapiro for their extremely helpful comments on earlier drafts.
1
Throughout this Article, I use the term ‘judicial federalism’ somewhat loosely to encompass virtually all questions involving the
respective competences of state and federal courts to adjudicate issues and award remedies in cases of joint state and federal
interest. For some examples, see infra p. 1145.
2
Cf. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 606-08 (1981) (discussing two
inconsistent rhetorical traditions running through much of the law and literature in the federal courts field).
3
What I call models are what have been known since Weber as ‘ideal types.’ See M. Weber, Economy and Society 19-22 (G. Roth
& C. Wittich eds. 1978); C. Hempel, Aspects of Scientific Explanation 155-71 (1965). They are intellectual constructs, formed by
a synthesis of familiar arguments and views. Although the elements of the models thus have foundations in actual legal argument,
the models themselves are my own creations, and their elements are arranged to exhibit a conceptual purity that ‘cannot be found
in reality’ but with which ‘concrete phenomena can be compared for the purpose of explicating some of their significant
components.’ C. Hempel, supra, at 156.
4
P. Bator, D. Meltzer, P. Mishkin & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System (3d ed. 1988)
[hereinafter Hart & Wechsler]. The current third edition of the casebook is much less consistently ‘Federalist,’ in the sense in
which I use that term, see infra notes 29-61 and accompanying text, than were the first two editions: H. Hart & H. Wechsler, The
Federal Courts and the Federal System (1953), and P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The
Federal Courts and the Federal System (2d ed. 1973).
5
Hart, Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959) [hereinafter Hart, Foreword]; Hart, The Power of
Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362 (1953) [hereinafter Hart,
Dialogue]; and Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489 (1954) [hereinafter Hart, State &
Federal Law].
6
Bator, Congressional Power Over the Jurisdiction of the Federal Courts, 27 Vill. L. Rev. 1030 (1982) [hereinafter Bator,
Congressional Power]; Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441
(1963) [hereinafter Bator, Finality]; Bator, supra note 2.
7
This is not the only possible view of the intent and history of the original Constitution. See, e.g., W. Crosskey, Politics and the
Constitution in the History of the United States (1953); Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of
Federal Jurisdiction, 65 B.U.L. Rev. 205 (1985) [hereinafter Amar, Neo-Federalist View]; Amar, Of Sovereignty and Federalism,
96 Yale L.J. 1425 (1987) [hereinafter Amar, Sovereignty and Federalism].
8
Although the Federalist model claims to be the descendant of the Federalists who authored the original Constitution and shaped
the nation’s early constitutional history, the accuracy of this claim is disputed. Professor Amar, for example, argues that extreme
deference to claims of state sovereignty interests and to state courts more closely parallels historical Anti-Federalism than
Federalism. Amar adopts the mantle of ‘Neo-Federalism’ for his quite different—what I shall call ‘Nationalist’—views. See
Amar, Neo-Federalist View, supra note 7, at 208 n.9; Amar, Sovereignty and Federalism, supra note 7, at 1426 n.9.
9
See, e.g., Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941 (1987); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89 (1984).
10
See, e.g., Allen v. McCurry, 449 U.S. 90, 103-04 (1980); Quern v. Jordan, 440 U.S. 332, 338-45 (1977).
11
See, e.g., Mitchum v. Foster, 407 U.S. 225, 240-43 (1972); Tarble’s Case, 80 U.S. (13 Wall.) 397 (1872).
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12
See W. Crosskey, supra note 7; Amar, Neo-Federalist View, supra note 7; Amar, Sovereignty and Federalism, supra note 7;
Powell, The Compleat Jeffersonian: Justice Rehnquist and Federalism, 91 Yale L.J. 1317, 1360-70 (1982).
13
See, e.g., Patsy v. Board of Regents, 457 U.S. 496, 502-12 (1982); Mitchum v. Foster, 407 U.S. 225, 240-43 (1971); Fiss,
Dombrowski, 86 Yale L.J. 1103, 1107-09 (1977); Soifer & Macgill, The Younger Doctrine: Reconstructing Reconstruction, 55
Tex. L. Rev. 1141, 1170-71 n.136, 1175-77 (1977).
14
See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976); Ex parte Young, 209 U.S. 123 (1908).
15
See, e.g., Fay v. Noia, 372 U.S. 391 (1963); Monroe v. Page, 365 U.S. 167, 172-83 (1961).
16
See Fiss, supra note 13, at 1103; Neuborne, The Myth of Parity, 90 Harv. L. Rev. 1105, 1107-09 (1977); see also Stewart,
Federalism and Rights, 19 Ga. L. Rev. 917, 917 (1985) (noting the view that ‘federalism is merely a politically opportunistic card
to be played or not depending upon the substantive interests thereby advanced’).
17
The association of the models with substantive political beliefs is historically contingent. See Neuborne, supra note 16, at 110615. For example, during the ‘Lochner era,’ political liberals frequently sounded Federalist themes in criticizing the federal courts
not only for substantive errors but for violating sound principles of judicial federalism. See, e.g., H. Friendly, Federal Jurisdiction:
A General View 3 n.7 (1973) (describing Ex parte Young, an important Nationalist decision interpreting the eleventh amendment,
as ‘the bete noir of liberals in [my] law school days’). In yet an earlier era, ‘liberal’ opponents of Supreme Court decisions that
were protective of chattel slavery adopted ‘a forceful states’ rights stance’ because of their belief that state law and state courts
‘would be less effective [than their federal counterparts] in protecting the rights of slaveholders.’ Neuborne, supra note 16, at
1111.
18
See, e.g., Neuborne, supra note 16, at 1108-09 (1977) (discussing Ex parte Young); Redish, Supreme Court Review of State Court
‘Federal’ Decisions: A Study in Interactive Federalism, 19 Ga. L. Rev. 861, 863 (1985) (discussing Michigan v. Long., 463 U.S.
1032 (1983)).
19
See, e.g., Powell, supra note 12, at 1362-63 (arguing that Justice Rehnquist has a relatively consistent federalist theory of
federalism that sometimes forces him to results inconsistent with his ‘conservative politics’).
20
See, e.g., Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941 (1987); Atascadero State Hosp. v. Scanlon, 473
U.S. 234 (1985); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889
(1983).
21
See, e.g., Bator, supra note 2, at 622 n.49; Durfee & Sloss, Federal Injunction Against Proceedings in State Courts: The Life
History of a Statute, 30 Mich. L. Rev. 1145, 1145-46 (1932); Saltzburg, Habeas Corpus: The Supreme Court and the Congress, 44
Ohio St. L.J. 367, 373 (1983).
22
See, e.g., Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 472 (1966) (legal rules fashioned to
cover new problems should be cloaked in reason, ‘not garbed in a regal patchwork of history that, on close examination, proves as
embarrassingly illusory as the Emperor’s new clothes’).
23
See Nelson, History and Neutrality in Constitutional Adjudication, 72 Va. L. Rev. 1237, 1241-45 (1986) (developing a
‘contextualiz [ing]’ model of historical research).
24
See Fallon, A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1194-1209, 1237-68
(1987).
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25
See Amar, Sovereignty and Federalism, supra note 7, at 1426 n.9.
26
See Fallon, supra note 24, at 1254-58 (discussing how other factors of legal relevance frequently can and do influence
interpretations of the framers’ intent in constitutional analysis).
27
See, e.g., Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 4 (1983) (denying federal jurisdiction, for
‘reasons involving perhaps more history than logic,’ over an ‘important issue’ that ‘affects thousands of federally regulated trusts’
and ‘must eventually receive a definitive, uniform resolution’ for ‘reasons involving perhaps more history than logic’).
28
See Cover & Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035 (1977).
29
The model is developed largely from arguments advanced in scholarly literature and in Supreme Court opinions. Important
sources of ideas in the scholarly literature include Hart & Wechsler, supra note 4; Bator, Congressional Power, supra note 6;
Bator, Finality, supra note 6; Bator, supra note 2; Hart, Dialogue, supra note 5; Hart, State and Federal Law, supra note 5; and
Powell, supra note 12. Among the most suggestive Supreme Court opinions are Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89 (1984); Younger v. Harris, 401 U.S. 37 (1971); Henry v. Mississippi, 379 U.S. 443 (1965) (Harlan, J., dissenting);
Fay v. Noia, 372 U.S. 391 (1963) (Harlan, J., dissenting); Toucey v. New York Life Ins. Co., 314 U.S. 118 (1941); Hans v.
Louisiana, 134 U.S. 1 (1889). It should be emphasized, however, that the model is an intellectual construct developed to show the
underlying relationships among a set of ideas. There is no claim that any of the authors from whose work the model is constructed
subscribes to each of the premises advanced as constitutive of the model.
30
See, e.g., Bator, supra note 2, at 633-34 (emphasizing the Constitution’s ‘structural and institutional’ values); Powell, supra note
12, at 1327-28 (identifying history and constitutional structure as the sources of Justice Rehnquist’s federalist theory).
31
See, e.g., Nevada v. Hall, 440 U.S. 410, 433-34 (1979) (Rehnquist, J., dissenting).
32
See, e.g., Powell, supra note 12, at 1320 (Justice Rehnquist’s federalist theory holds that ‘the constitutional first principle intended
by the framers was the maintenance of the federal system and of the dignity and autonomy of the states’); Bator, supra note 2, at
632 (arguing that structural norms are as important in the constitutional scheme as those that protect individual rights).
33
Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-4 (1988). For other
discussions of the values promoted by federalism, see McConnell, Federalism: Evaluating the Founders’ Design, 54 U. Chi. L.
Rev. 1484, 1491-1511 (1987) (discussing the framers’ plan and what they hoped to accomplish through a federalist system);
Stewart, supra note 16, at 917-19 (explaining how federalistic decentralization promotes the well-being of society).
34
See Hart, State and Federal Law, supra note 5, at 491.
35
See, e.g., Powell, supra note 12, at 1346-47.
36
Hart, State and Federal Law, supra note 5, at 491.
37
U.S. Const. amend. X.
38
See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469
U.S. 528 (1985).
39
U.S. Const. amend. XI.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
40
For a discussion of the respective Federalist and Nationalist interpretations of the eleventh amendment, see infra notes 210-81 and
accompanying text.
41
Hart & Wechsler, supra note 4, at 10.
42
As viewed from a Federalist perspective, the political science of the framers recognized that the state courts frequently served and
would continue to serve, as ‘the initial agency’ of state regulation and lawmaking, with the legislatures functioning
characteristically only ‘as a second level of official adjustment.’ Hart, State and Federal Law, supra note 5, at 492, 499. Within a
Federalist account, this assumption about the lawmaking function of state courts helps to explain how the framers could be fearful
that constitutional provision for lower federal courts could ‘mak[e] an unnecessary encroachment on the jurisdiction’—and thus
on the lawmaking prerogatives—of the state courts. Hart & Wechsler, supra note 4, at 10 (quoting John Rutledge). It was
apparently because of this concern that the Constitutional Convention, having first agreed in principle to the mandatory creation
of federal trial courts, later rescinded its decision on a motion for reconsideration. See id. at 10-11.
43
Madison was joined by James Wilson in offering the compromise resolution. Hart & Wechsler, supra note 4, at 11.
44
Id. Out of the compromise came the language in article III that the federal judicial power would be vested in one Supreme Court
and in ‘such inferior courts as the Congress may from time to time ordain and establish.’ U.S. Const. art. III, § 1. Analogous
constitutional language provides that the Supreme Court shall have appellate jurisdiction subject to ‘such Exceptions . . . as the
Congress shall make.’ U.S. Const. art. III, § 2, cl. 2.
45
See Bator, supra note 2, at 606.
46
U.S. Const. art. VI.
47
Hart, Dialogue, supra note 5, at 1401.
48
Bator, Congressional Power, supra note 6, at 1037.
49
See, e.g., Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); Railroad Comm’n v. Pullman Co., 312 U.S.
496 (1941).
50
Hart, State and Federal Law, supra note 5, at 506; see Bator, supra note 2, at 620.
51
Bator, supra note 2, at 624.
52
Hart, Dialogue, supra note 5; Hart, Foreword, supra note 5; Hart, State and Federal Law, supra note 5.
53
Bator, Congressional Power, supra note 6; Bator, Finality, supra note 6; Bator, supra note 2.
54
Hart & Wechsler, supra note 4. This was especially true of earlier editions of that work. See supra note 4.
55
See Powell, supra note 12; Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 Harv. L. Rev. 293 (1976).
56
See, e.g., Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 518 (1955); Toucey v. New York Life Ins. Co., 314
U.S. 118 (19841).
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
57
See, e.g., Henry v. Mississippi, 379 U.S. 443, 457 (1965) (Harlan, J., dissenting); Fay v. Noia, 372 U.S. 391, 448 (1963) (Harlan,
J., dissenting).
58
See, e.g., Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941 (1987); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89 (1984); Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973) (Powell, J., concurring).
59
See Note, Justice Sandra Day O’Connor: Trends Toward Judicial Restraint, 42 Wash. & Lee L. Rev. 1185, 1222 (1985) (‘The
overwhelming trend in O’Connor’s opinions, motivated by . . . considerations of federalism, is to limit access to federal courts
and to infuse state government with increased independence to maintain the health of a federal system.’).
60
See, e.g., Powell, supra note 12, at 1362-63 (arguing that Justice Rehnquist’s theory of federalism is reasonably determinate and
occasionally leads to results contrary to his substantive political instincts).
61
See Amar, Neo-Federalist View, supra note 7, at 208 n.9; Amar, Sovereignty and Federalism, supra note 7, at 1426 n.9; Powell,
supra note 12, at 1366-70.
62
See, e.g., Wisdom, Foreword: The Ever-Whirling Wheels of American Federalism, 59 Notre Dame L. Rev. 1063, 1074-78 (1984).
63
See, e.g., Amar, Sovereignty and Federalism, supra note 7, at 1429, 1451-66; Fiss, supra note 13, at 1107; Soifer & Macgill, supra
note 13, at 1143.
64
See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).
65
See, e.g., Blackmun, Section 1983 and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away? 60
N.Y.U. L. Rev. 1, 3-7 (1985).
66
See Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323, 1324 (1952).
67
See Amar, Sovereignty and Federalism, supra note 7, at 1466-78. A major difficulty is that the Constitution’s supporters and
oppopents alike attributed ‘complex and often contradictory meanings’ to the concept of state sovereignty. Powell, The Modern
Misunderstanding of Original Intent, 54 U. Chi. L. Rev. 1513, 1524 (1987). For useful discussions, see also G. Wood, The
Creation of the American Republic, 1776-87, at 306-89 (1969) (describing the conflict and confusion that surrounded the framers’
attempts to allocate the power of the people between state and federal governments); Fletcher, A Historical Interpretation of the
Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against
Jurisdiction, 35 Stan. L. Rev. 1033 (1983) (describing how the framers, Federalists, and Anti-Federalists all had difficulty
grasping a shared conception of state sovereignty).
68
See, e.g., Nichol, Federalism, State Courts, and Section 1983, 73 Va. L. Rev. 959, 960 (1987).
69
See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 327-29 (1816); Amar, Neo-Federalist View, supra note 7, at 231-33;
Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U.
Pa. L. Rev. 741, 749-50 (1984).
70
On the concept of a ‘Reconstruction Constitution,’ see, e.g., Soifer & Macgill, supra note 13, at 1170-71, 1175-77.
71
The Supreme Court made this clear in Bolling v. Sharpe, 347 U.S. 497 (1954). Although the fourteenth amendment’s equal
protection clause does not literally apply against the national government, the Court in Bolling, following the decision in Brown v.
Board of Education, pronounced it unthinkable that the national government should not be held to the same antidiscrimination
norm as the states. The Court thus held that the due process clause of the fifth amendment effectively incorporates fourteenth
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
amendment norms and makes them applicable against the national government. See id.
72
See, e.g., Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts, 16 Harv. C.R.-C.L. L. Rev.
129 (1981).
73
See Neuborne, supra note 16, at 1127-28. For a historical argument that ‘the . . . experiment of relying . . . on state courts for
federal law enforcement’ during the years 1790-1860 was unsuccessful and shows the necessity of ready access to federal courts
to enforce federal rights, see Gibbons, Federal Law and the State Courts 1790-1860, 36 Rutgers L. Rev. 399, 401-453 (1984).
74
Neuborne, supra note 16, at 1121-24.
75
Id. For similar arguments, see Sedler, The State Constitutions and the Supplemental Protection of Individual Rights, 16 U. Tol L.
Rev. 465, 470-71 (1985); Developments in the Law, Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1060-61 (1970).
76
See, e.g., Mitchum v. Foster, 407 U.S. 225, 240-43 (1972); Monroe v. Pape, 365 U.S. 167, 172-84 (1961); Nichol, supra note 68,
at 971-83; Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 Duke
L.J. 987, 990-1020.
77
See, e.g., S. Kutler, Judicial Power and Reconstruction Politics (1968); Amsterdam, Criminal Prosecutions Affecting Federally
Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793,
805-30 (1965); Wiecek, The Reconstruction of Federal Judicial Power, 1863-1875, 13 Am. J. Legal Hist. 333 (1969).
Reconstruction Congresses adopted at least twelve pieces of removal legislation. S. Kutler, supra, at 147. Reconstruction also
witnessed the conferral of power on the lower federal courts to issue writs of habeas corpus on behalf of prisoners detained by
state authorities. See Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (current version at 28 U.S.C. § 2241(c)(3)). Prior provisions for
federal habeas corpus, apparently reflecting Federalist assumptions about state sovereign prerogatives and the adequacy of state
courts for protecting fundamental freedoms, had excluded state prisoners from the reach of federal authority. See Wiecek, supra,
at 343. It was also during the Reconstruction Era, in 1875, that Congress gave the lower federal courts their first sustained grant of
‘general federal question’ jurisdiction over all substantial civil suits based on the Constitution and laws of the United States. With
the enactment of this statute, the Supreme Court has observed, ‘the lower federal courts . . . ‘became the primary and powerful
reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.’’ Steffel v. Thompson,
415 U.S. 452, 464 (1974) (quoting F. Frankfurter & J. Landis, The Business of the Supreme Court: A Study in the Federal
Judicial System 65 (1928)).
78
Typical is the legislative history surrounding enactment of the 1871 Civil Rights Act, Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13
(the predecessor statute of 42 U.S.C. § 1983), which authorized suits for damages or equitable relief against state officials who
violated or caused the deprivation of federal civil rights. Proponents argued that the legislation was necessary because ‘state
courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or
were in league with those who were bent upon abrogation of federally protected rights.’ Mitchum, 407 U.S. at 240.
79
Mitchum, 407 U.S. at 240; see, e.g., Amsterdam, supra note 77, at 828-30; Nichol, supra note 68, at 971-83; Zeigler, supra note
76, at 1017-20.
80
See, e.g., Amar, Sovereignty and Federalism, supra note 7, at 1428-29; Fiss, supra note 13, at 1107 (discussing views of Justice
Brennan).
81
See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247-302 (1985) (Brennan, J., dissenting); Steffel, 415 U.S. 452;
Dombrowski v. Pfister, 380 U.S. 479 (1965); Fay v. Noia, 372 U.S. 391 (1963).
82
See, Gibbons, supra note 20; Gibbons, supra note 73.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
83
See Amar, Neo-Federalist View, supra note 7; Amar, Sovereignty and Federalism, supra note 7.
84
See Chayes, How Does The Constitution Establish Justice?, 101 Harv. L. Rev. 1026 (1988) [hereinafter Chayes, Justice]; Chayes,
The Supreme Court, 1981 Term—Foreword: Public Law Litigation and the Burger Court, 96 Harv. L. Rev. 4 (1982).
85
See Fiss, supra note 13.
86
See Neuborne, supra note 16; Neuborne, Toward Procedural Parity in Constitutional Litigation, 22 Wm. & Mary L. Rev. 725
(1981) [hereinafter Neuborne, Procedural Parity].
87
See Sager, The Supreme Court, 1980 Term—Foreword: Constitutional Limitations on Congress’ Authority to Regulate the
Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17 (1981).
88
See, e.g., Patsy v. Board of Regents, 457 U.S. 496 (1982).
89
See, e.g., Mitchum v. Foster, 407 U.S. 225, 240-43 (1972); Monroe v. Pape 365 U.S. 167, 174-80 (1961); Amsterdam, supra note
77; Nichol, supra note 68, at 971-83; Zeigler, supra note 76.
90
28 U.S.C. § 2283 (1982).
91
The language of the 1793 Act spoke in seemingly absolute terms: ‘. . . nor shall a writ of injunction be granted to stay proceedings
in any court of a state.’ Act of Mar. 2, 1793, ch. XII, § 5, 1 Stat. 333, 335. But the Supreme Court did not so construe the statute
through most of its history; by 1941 the case law reflected a number of judicial exceptions. See, e.g., Kline v. Burke Constr. Co.,
260 U.S. 226 (1922) (action in rem where federal court first acquired jurisdiction of the subject matter); Julian v. Central Trust
Co., 193 U.S. 93 (1904) (matter already litigated in state court); Marshall v. Homes, 141 U.S. 589 (1891) (state judgment obtained
by fraud); Providence & N.Y.S.S. Co. v. Hill Mfg. Co., 109 U.S. 578, 599-600 (1883) (federal statute provided for exclusive
remedy); French v. Hay, 89 U.S. (22 Wall.) 250, 253 (1874) (state proceedings removed to federal court). Toucey v. New York
Life Ins. Co., 314 U.S. 118 (1941), appeared to signal a reversal in the Supreme Court’s policy of loose construction. But
Congress responded with a 1948 statutory revision that created the three statutory exemptions contained in the present version of
the statute as quoted in the text. The Reviser’s Note states that ‘the revised section restores the basic law as generally understood
and interpreted prior to the Toucey decision.’ 28 U.S.C. § 2283 (Reviser’s Note) (1982). For a critical survey of the doctrine as it
has developed since the 1948 revision, see Redish, The Anti-Injunction Statute Reconsidered, 44 U. Chi. L. Rev. 717 (1977). For
histories of the original act, see Durfee & Sloss, supra note 21; Taylor & Willis, The Power of Federal Courts to Enjoin
Proceedings in State Courts, 42 Yale L.J. 1169 (1933); Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345
(1930).
92
See, e.g., Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 287 (1970) (the anti-injunction statute ‘in
part rests on the fundamental constitutional independence of the States and their courts’); Amalgamated Clothing Workers v.
Richman Bros., 348 U.S. 511, 518 (1955) (responding to the argument that ‘federal rights will not be adequately protected in the
state courts’ by affirming that ‘§ 2283 is but continuing evidence of confidence in the state courts reinforced by a desire to avoid
direct conflicts between state and federal courts’).
Revisionist histories of the Anti-Injunction Act have disputed the view that Congress in 1793 intended to erect any broad or
substantial barrier to federal judicial interference with state court proceedings. See, e.g., Mayton, Ersatz Federalism Under the
Anti-Injunction Statute, 78 Colum. L. Rev. 330, 332 (1978) (‘Congress in 1793 seems to have enacted only a law prohibiting a
single Justice of the Supreme Court from enjoining a state court proceeding’ and did not undertake to limit the injunctive powers
of federal courts of competent jurisdiction); Note, Federal Court Stays of State Court Proceedings: A Re-examination of Original
Congressional Intent, 38 U. Chi. L. Rev. 612, 624 (1971) (the 1793 Act left intact federal judicial power to stay state court
proceedings by writs other than injunctions and ‘reflects . . . an intention to let the federal courts themselves work out the
situations in which such stays would issue’). Supporting this Nationalist interpretation is the fact that the act was passed by a
Congress that, in the historical context, would have been most unlikely to want to retract the power of the federal courts. Mayton,
supra, at 335-36 & n.35. The actual intent of the Anti-Injunction Act, however, seems destined to remain shrouded in doubt.
Among other difficulties, there is no record of legislative debates over the statute. See Durfee & Sloss, supra note 21, at 1145-46
& n.3. But it is interesting and important that the history even of § 2283, long a symbol of the Federalist tradition, can very
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plausibly be read—as the Nationalist model would suggest that it should be—in a way that would deny it a strong Federalist
purpose.
93
See Mitchum v. Foster, 407 U.S. 225, 238-43 (1972).
94
See Currie, Res Judicata: The Neglected Defense, 45 U. Chi. L. Rev. 317, 329 (1978).
95
See Whitten, Federal Declaratory and Injunctive Interference with State Court Proceedings: The Supreme Court and the Limits of
Judicial Discretion, 53 N.C.L. Rev. 591, 597-611 (1975).
96
See, e.g., Gibbons, supra note 20, at 1891, 2003-05.
97
See Zeigler, supra note 76, at 1017-25.
98
See, e.g., Nichol, supra note 68, at 993-94; Zeigler, supra note 76, at 1017-25.
99
See, e.g., Nichol, supra note 68, at 993-94; Zeigler, supra note 76, at 988, 1017-25.
100
See Bator, supra note 2, at 622 n.49; cf. Nichol, supra note 68, at 987 (‘[w]hen deference [to state courts] carries the day, opinions
typically maintain that ‘nothing in the legislative history of section 1983’’ requires a contrary result) (quoting Allen v. McCurry,
449 U.S. 90, 104 (1980)).
101
At the risk of oversimplification, the judicial history can be divided into three periods. The first begins in 1908 with the Supreme
Court’s decision in Ex parte Young, 209 U.S. 123 (1908). After Young, there were few if any cases in which federal injunctions
stayed pending prosecutions, but while ‘a few prominent cases said that injunctions against future prosecutions should be hard to
get, in practice they became routine.’ Laycock, Federal Interference with State Prosecutions: The Need for Prospective Relief,
1977 Sup. Ct. Rev. 193 (emphasis added); see Soifer & Macgill, supra note 13, at 1149-55. The restrictive cases are more
interesting, however, because of the important way in which they fuse a vision of American federalism with the conceptual
apparatus of equity jurisprudence. A leading example is Douglas v. City of Jeannette, 319 U.S. 157 (1943). Writing for the Court
in Douglas, Chief Justice Stone affirmed the Federalist presumption that state courts are as adequate as federal courts to protect
federal constitutional rights. Because important concerns of federalism are implicated whenever a federal court is asked to
‘interfere with or embarrass threatened proceedings in state courts,’ Chief Justice Stone held, courts of equity should invoke their
discretionary powers to withhold relief ‘save in those exceptional cases’ where a threat of ‘irreparable injury . . . is clear and
imminent.’ Id. at 162-63.
The second era occurred during the years of the Warren Court, when events surrounding the civil rights movement imparted new
urgency to questions about the relative sensitivity of state and federal courts to federal constitutional rights. The central case is
Dombrowski v. Pfister, 380 U.S. 479 (1965), in which a civil rights organization sought federal injunctive protection against
threatened future prosecutions under the Louisiana Subversive Activities and Communist Control Law. A divided Supreme Court
held that an injunction was barred neither by § 2283, because no prosecution was pending when suit was filed, nor by traditional
limits on the availability of equitable remedies. Id. at 492, 497. The case’s most straightforward doctrinal innovation occurred
within the traditional equitable requirement of irreparable injury: Justice Brennan’s opinion for the Court surmounted that barrier
by postulating the transcendent value of first amendment freedoms, the exercise of which might be chilled if they could be
vindicated only as defenses to criminal prosecutions. Because Dombrowski retained the analytical apparatus of Douglas, the
decision might appear reasonably consistent with Federalist assumptions. But as Justice Harlan made clear in his dissent,
‘underlying the Court’s major premise that criminal enforcement of an overly broad statute affecting rights of speech and
association is itself a deterrent to the free exercise thereof seems to be the unarticulated assumption that state courts will not be as
prone as federal courts to vindicate constitutional rights promptly and effectively.’ Dombrowski, 380 U.S. at 499 (Harlan, J.,
dissenting). In an opinion much more faithful to the Federalist tradition, Harlan thought this premise impermissible.
According to a sympathetic commentator, it later emerged as a weakness of the Dombrowski opinion that Justice Brennan had not
explicitly rested the holding on an alternative vision of federalism. Fiss, supra note 13, at 1107. At the time of the Dombrowski
opinion, Professor Fiss argues, Justice Brennan clearly believed that the Federalist vision was ‘wholly inconsistent with the
revisions of federal jurisdiction that had occurred after the Civil War and that had given the citizen the right to choose which
forum—state or federal—would best adjudicate his grievance against the state.’ The third, ‘modern’ period is discussed in text.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
102
401 U.S. 37 (1971).
103
407 U.S. 225 (1972).
104
As re-enacted in 1948, § 2283 admits of exceptions in only a limited number of congressionally prescribed or ratified categories.
Section 1983 plausibly qualified as an exception only under the category of ‘expressly authorized by act of Congress.’
105
See Younger, 401 U.S. at 54.
106
Id. at 44-45.
107
Id.
108
See, e.g., Nichol, supra note 68, at 993-96; Zeigler, supra note 76, at 1022-25.
109
407 U.S. 225, 243 (1972).
110
Id. at 242.
111
Because § 1983 says not a word about enjoining proceedings in state courts, one respected commentator has concluded that
‘[t]here is no excuse for the Mitchum decision.’ Currie, supra note 94, at 329.
112
Bator, supra note 2, at 620.
113
See Edwards, The Changing Notion of ‘Our Federalism,’ 33 Wayne L. Rev. 1015 (1987).
114
Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05 (1975).
115
Juidice v. Vail, 430 U.S. 327, 334-35 (1977).
116
Moore v. Sims, 442 U.S. 415, 423 (1979) (finding that the ‘basic concern’ of the Younger doctrine—‘that threat to our federal
system posed by displacement of state courts by those of the National Government—is also fully applicable to civil proceedings
in which important state interests are involved’).
117
Texaco v. Pennzoil, 107 S. Ct. 1519, 1527 (1987).
118
See City of Los Angeles v. Lyons, 461 U.S. 95, 111-13 (1983); Rizzo v. Goode, 423 U.S. 362 (1976) (‘The principles of
federalism . . . governing the relationship between federal courts and state governments, though initially expounded and perhaps
entitled to their greatest weights in cases where it was sought to enjoin a criminal prosecution in progress,’ have far broader
implications). For a criticism of this expansion of the Younger doctrine, as well as a more general critique of the Lyons decision,
see Fallon, Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. Rev. 1
(1984).
119
See, e.g., Juidice, 430 U.S. at 343 (Brennan, J., dissenting); Huffiman v. Pursue, Ltd., 420 U.S. 592, 615-17 (1975) (Brennan, J.,
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
dissenting). Commentators have urged similar arguments. See, e.g., Redish, supra note 91; Zeigler, supra note 76, at 1017-25.
120
Steffel v. Thompson, 415 U.S. 452, 460-75 (1974).
121
Id.
122
Id. at 464 (quoting F. Frankfurter & J. Landis, supra note 77, at 65).
123
See Wooley v. Maynard, 430 U.S. 705, 709-12 (1977); Doran v. Salem Inn, 422 U.S. 922, 930-31 (1975).
124
But cf. supra note 79 (discussing revisionist histories of the Anti-Injunction Act).
125
Act of May 26, 1790, ch. XI, 1 Stat. 122.
126
28 U.S.C. § 1738 (1982).
127
The statutory language remains essentially unchanged from the original. A 1948 amendment substituted the present ‘same full
faith and credit’ for the original ‘such full faith and credit.’ Act of June 25, 1948, § 1738, 62 Stat. 942. But the linguistic revision
was not intended to alter the statute’s meaning. See Nadelman, Full Faith and Credit to Judgments and Public Acts, 56 Mich. L.
Rev. 33, 81-82 (1957).
128
Section 1738 gives effect to two distinct doctrines. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n.1
(1984); Allen v. McCurry, 449 U.S. 90, 94-96 (1980). ‘Claim preclusion’ or ‘res judicata’ refers to the effect of a judgment in
precluding relitigation of claims and defenses that arose from one transaction and were raised, or could have been raised, in an
earlier proceeding. Claim preclusion thus encompasses principles of merger and bar. See Restatement (Second) of Judgments §§
18-20 (1982). The doctrine of ‘issue preclusion’ or ‘collateral estoppel’ holds that a decision of an issue of fact or law that is
necessary to a final judgment in one action may prevent relitigation of the same issue in a suit on a different claim by one of the
parties to the first action. Id. §§ 27-28.
129
See Migra, 465 U.S. at 81; Kremer v. Chemical Constr. Corp., 456 U.S. 461, 466 (1982). A partial qualification is required for
cases, mostly involving the litigation of federal questions in which state preclusion rules are themselves preempted by federal
common law. See Burbank, Interjurisdictional Preclusion and Federal Common Law: Toward a General Approach, 70 Cornell L.
Rev. 625, 638-40 (1985). Despite the broad literal scope of § 1738, commentators agree that § 1738 is ‘infrequently . . .
mentioned,’ Smith, Full Faith and Credit and Section 1983: A Reappraisal, 63 N.C.L. Rev. 59, 81 (1984), ‘frequently
disregarded,’ Developments in the Law—Section 1983 and Federalism, 90 Harv. L. Rev. 1133, 1334 (1977), or neglected, see
Currie, supra note 94, at 318, in cases in which it would seemingly apply. The neglect of § 1738 has two dimensions. First, in a
large class of cases, federal courts apply federal preclusion law without reference to § 1738 and its command that federal courts
should apply state preclusion law, possibly on the assumption that federal and state preclusion rules would be similar if not
identical. See Smith, supra, at 80. Second, there are instances in which either the Supreme Court or the lower federal courts have
recognized exceptions to the rule of § 1738 that state law preclusion rules are binding in federal court. In the Supreme Court
jurisprudence, habeas corpus constitutes an unambiguously accepted exception. See, e.g., Townsend v. Sain, 372 U.S. 293 (1963).
Other Supreme Court cases implicitly or explicitly creating exceptions are rare but not nonexistent. See, e.g., Brown v. Felsen,
442 U.S. 127 (1979) (bankruptcy court not bound by prior state court judgment when reviewing dischargeability of debt);
England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 415-17 (1964) (plaintiffs required by abstention doctrine to
litigate state issues in state court are not barred by ordinary preclusion rules from litigating related constitutional claims in federal
court following state litigation). In the lower federal courts, despite uncertainties and divisions, a number of decisions have
recognized exceptions to otherwise binding preclusion rules based on exclusive grants of federal jurisdiction. Patent, antitrust, and
securities litigation provide examples. For a discussion and collection of cases, see 17 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure § 4470 (1981). Most of the cases allowing relitigation apparently do not discuss the relevance of § 1738.
Id. at 677. But other courts have confronted the difficulty raised by § 1738 and have reasoned that the congressional mandate
reflected in exclusive jurisdictional statutes would be offended by giving preclusive effect to prior state judgments. See, e.g.,
Lyons v. Westinghouse Elec. Corp., 222 F.2d 184 (2d Cir.) (L. Hand, J.), cert. denied, 350 U.S. 825 (1955). See generally 17 C.
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Wright, A. Miller & E. Cooper, supra, at 677-78 (‘Perhaps it is proper to assume that this old statute [§ 1738] is subject to implied
exceptions drawn from modern views of exclusive jurisdiction. Centainly there is no reason to suppose that the statute was drafted
with any thought of these questions.’).
130
Cf. Allen v. McCurry, 449 U.S. 90, 105 (1980) (rejecting an argument for an exception to the preclusion principles of § 1738 and
expressing confidence in the willingness and ability of state courts to render correct decisions of constitutional issues).
131
See, e.g., Migra, 465 U.S. at 84 (section 1738 embodies principles of comity). The statute also imposes principles of full faith and
credit on state courts, requiring that the courts of one state give full faith and credit to judgments entered in another. In the context
of early debates about the meaning of federalism, prior to the conferral of broad grants of federal jurisdiction, the prescription for
relations among states and their courts may have seemed the statute’s more important aspect. But the initial intent is clouded.
First, the records of legislative debate and committee deliberations have not survived; apparently they were destroyed during the
War of 1812. See Nadelman, supra note 127, at 60 n.124. Second, to lawyers of the period, the crucial language of the 1790
enactment may well have appeared ambiguous. The terms ‘faith’ and ‘credit’ were common law concepts used to describe the
effect to be given to judgments from a foreign jurisdiction. Id. at 48-53. Under the Articles of Confederation, judgments from one
colony were treated in the courts of another as those of a foreign sovereign. And while ‘comity’ required recognition of such
judgments under international law principles, the colonial courts did not always accord them the conclusive effect given to a
judgment from within the same colony. See id. The full faith and credit clause adopted at the Constitutional Convention, U.S.
Const. art. IV, § 1, reflected a legislative compromise, which was accepted only after failed efforts to specify the degree of
conclusive effect to which sister state judgments should be entitled. See Nadelman, supra note 127, at 55-59. Because the 1790
Act simply echoed the constitutional language, lower federal courts initially divided as to whether the statute required that
conclusive effect, or instead only some form of prima facie or evidentiary effect, must be given to state court judgments under the
statute. See Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretive Reexamination of the
Full Faith and Credit and Due Process Clauses (pt. 1), 14 Creighton L. Rev. 499, 559-70 (1981). Early Supreme Court decisions
by Justices Story and Marshall authoritatively resolved any ambiguity in favor of conclusive effect. Hampton v. McConnel, 16
U.S. (3 Wheat.) 234 (1818); Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813). But the leading decisions were entered in cases
involving the full faith and credit that must be given by a state court to the judgment of a court from another state. In this context,
concerns to forge a unified nation out of the states demanded a strong construction of full faith and credit. The balance of
concerns arguably might have appeared somewhat different in case of a collision between state sovereignty interests on the one
hand and national interests in the fairness of federal judicial decisions on the other.
132
See supra note 131.
133
Mitchum v. Foster, 407 U.S. 225, 239 (1972); see Monroe v. Pape, 365 U.S. 167, 183 (1961).
134
See, e.g., Averitt, Federal Section 1983 Actions After State Court Judgments, 44 U. Colo. L. Rev. 191, 202-04 (1972); Theis, Res
Judicata in Civil Rights Act Cases: An Introduction to the Problem, 70 Nw. U.L. Rev. 859, 878 (1976); Vestal, State Court
Judgment as Preclusive in Section 1983 Litigation in a Federal Court, 27 Okla. L. Rev. 185, 210-12 (1974); Note, Preclusive
Effect of State Judgments in Subsequent 1983 Actions, 78 Colum. L. Rev. 610 (1978). Among the lower courts, exceptional
treatment for § 1983 cases represented only a minority stance. See 18 C. Wright, A. Miller & E. Cooper, supra note 129, at 69598, 717-21. But a significant number of decisions had adopted the position that claim preclusion does not apply in civil rights
actions following state litigation in which specific federal claims advanced in the federal action had not been raised in state courts.
See, e.g., Lombard v. Board of Educ., 502 F.2d 631, 635-37 (2d Cir.), cert. denied, 420 U.S. 976 (1974). And a small minority of
courts suggested that issue preclusion might be denied at least in some circumstances. See, e.g., Chicago Sheraton Corp. v. Zaban,
593 F.2d 808, 809 (7th Cir.), cert. dismissed, 444 U.S. 911 (1979). For a fuller summary of the cases, see 18 C. Wright, A. Miller
& E. Cooper, supra note 129, at 695-96.
135
See, e.g., Currie, supra note 94, at 327-28.
136
449 U.S. 90 (1980). In Allen, the plaintiff McCurry brought a § 1983 action against police officers alleging that they had
unconstitutionally searched his home. At the time that McCurry brought the action, he had already been convicted of a crime, and
the state criminal court had adjudged the officers’ search to be constitutional in denying McCurry’s motion to suppress evidence.
The case thus presented a question of ‘issue preclusion’ or collateral estoppel—whether the state court’s decision of the
constitutional issue should prevent its being relitigated in a suit for damages in federal court. In denying issue preclusion, the
court of appeals had relied on Nationalist premises, emphasizing ‘the special role of federal courts in protecting civil rights.’
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McCurry v. Allen, 606 F.2d 795, 799 (8th Cir. 1979), rev’d, 449 U.S. 90 (1980).
137
Allen, 449 U.S. at 96. Significantly, the Court cited its own staunchly Federalist decision in Younger v. Harris, 401 U.S. 37
(1971), as supporting authority.
138
See Allen, 449 U.S. at 96 (‘It is against this background [of traditions of comity and the existence of the full faith and credit
statute] that we examine the relationship of § 1983’ and issue preclusion.).
139
See id. at 97-98 (‘Nothing in the language of § 1983 remotely expresses any congressional intent . . . to repeal the express
statutory requirement’ of § 1738.) There is some ambiguity in the Court’s opinion about whether it actually intended to hold §
1738, and therefore state law, directly controlling of preclusion issues in § 1983 actions or whether it meant to lay down judicially
adapted federal rules of collateral estoppel—rules for which § 1738 presumably would serve as a font of policy. Cf. Younger, 401
U.S. at 37 (employing the Anti-Injunction Act, though not held to be applicable by its terms, as a source of policy for crafting
doctrines of equitable restraint). The Court initially introduced § 1738 only as ‘background’ to its decision. Allen, 449 U.S. at 96.
Moreover, at various points it referred to its decision as concerning ‘the applicability of collateral estoppel to section 1983 suits,’
id. at 93 n.2, ‘normal rules of collateral estoppel,’ id. at 95 n.7, 97 n.10, and the ‘traditional doctrines of preclusion,’ id. at 98. On
the other hand, the reference to ‘repeals by implication,’ id. at 88, implies that the Court assumed that § 1738 prescribed a binding
congressional choice of state preclusion law. Subsequent cases seem to have established the direct applicability of § 1738. See
Kremer v. Chemical Constr. Corp., 456 U.S. 461, 467, 470-72 (1982) (section 1738 applies ‘by its terms’ to actions under the
1964 Civil Rights Act); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 84-85 (1984) (section 1738 is applicable in
§ 1983 actions).
140
Allen, 449 U.S. at 99.
141
Id. at 105.
142
Id. The Allen Court expressly recognized an exception to its prohibition against relitigation for cases in which the parties lacked a
‘full and fair opportunity to litigate’ the issue concerning which preclusion was sought. Id. at 101. This exception exists within §
1738 itself; the statute has been held not to bar religigation in such contexts. Significantly, however, the ‘full and fair opportunity
to litigate’ formula represents a standard Federalist response to allegations of state court inferiority or inadequacy as guarantors of
federal constitutional rights; it presumes that state courts enjoy parity with federal courts, subject only to the possibility of proof
of manifest unfairness in a particular case. The formula has been adapted into doctrines concerning federal habeas corpus, see
Stone v. Powell, 428 U.S. 465, 480-82 (1976), and federal abstention, see Moore v. Sims, 442 U.S. 415, 430 (1979), as well as
issue preclusion. See Bator, supra note 2, at 620-29; Bator, Finality, supra note 6.
143
Allen, 449 U.S. at 105-16 (Blackmun, J. dissenting). Justice Blackmun’s dissenting opinion was jointed by Justices Brennan and
Marshall.
144
Id. at 110.
145
Id. at 108. An accompanying footnote quoted liberally from the legislative history.
146
Id. at 110.
147
Although he rejected the majority’s holding that § 1983 actions are subject to state law preclusion rules under § 1738, Justice
Blackmun would have applied preclusion doctrine—as a matter, he implied, of federal common law—based on consideration of
‘all relevant factors in each case,’ insofar as consistent with ‘the policies underlying section 1983.’ Id. at 113 (Blackmun, J.,
dissenting). He cited three factors that made issue preclusion inappropriate in Allen: (1) because a nonparty could not have
invoked collateral estoppel at the time that § 1983 was enacted, ‘the 42d Congress could not have anticipated or approved that a
criminal defendant, tried and convicted in state court, would be precluded from raising against police officers a constitutional
claim arising out of his arrest’; (2) the context of a civil action may be more sympathetic than a criminal trial for litigation of a
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fourth amendment claim; and (3) a criminal defendant, who does not make a truly voluntary choice to litigate his constitutional
claim as a defense to a prosecution in state court, must have the opportunity to relitigate in federal court in order to enjoy the
choice of a federal forum that § 1983 aims to provide. See id. at 114-16.
148
For a brief survey of the subsequent cases, see Hart & Wechsler, supra note 4, at 1624-30.
149
462 U.S. 306 (1983).
150
See Shapior, Should a Guilty Plea Have Preclusive Effect?, 70 Iowa L. Rev. 27, 32 (1984).
151
Haring, 462 U.S. at 312.
152
Id. at 323 (quoting Allen, 449 U.S. at 98-99).
153
Id. at 313-14.
154
See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75 (1984). Migra also settled an important question left open in
Allen by holding that state court judgments may be given preclusive effect with respect to claims that could have been raised, but
were not, in earlier state court litigation. Id. at 898.
155
Hart & Wechsler, supra note 4, at 1626 n.1.
156
Other important issues involving federal habeas corpus jurisdiction also could be viewed as revealing a division between the
Federalist and Nationalist models. These include issues concerning the appropriate scope of the requirement that a prisoner must
‘exhaust’ available state remedies before seeking federal habeas corpus relief, see, e.g., Rose v. Lundy, 455 U.S. 509, 513-22
(1982), and the scope of federal review of state court decisions of fact, see, e.g., Sumner v. Mata, 449 U.S. 539 (1981); Townsend
v. Sain, 372 U.S. 293 (1963). The issues discussed in text are selected principally because of their prominence. But they also are
generally representative of the Federalist/Nationalist divisions that run throughout federal habeas corpus jurisprudence.
157
See Brown v. Allen, 344 U.S. 443, 499 (1953) (opinion of Frankfurter, J.); Saltzburg, supre note 21, at 382, 388-90.
158
Ch. XXVIII, 14 Stat. 385. The language of the 1867 statute was sweeping: it granted jurisdiction to ‘the several courts of the
United States . . . to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation
of the constitution, or of any treaty or law of the United States . . ..’ Id.
159
29 U.S.C. §§ 2241-2255 (1982).
160
For summaries, see Amsterdam, supra note 77, at 819-25; Bator, Finality, supra note 6, at 475-77.
161
See, e.g., Amsterdam, supra note 77, at 829 (atmosphere of hostility to state courts surrounding post-Civil War jurisdictional
legislation supports resolving ‘fair doubts in favor of the assumption’ of federal jurisdiction); Bator, Finality, supra note 6, at 47576 (because of ‘strikingly sparse’ legislative history, the statute must be read in the context of the traditionally limited function of
habeas corpus); Saltzburg, supra note 21, at 373 (because the legislative history is inconclusive if read alone, guidance must be
taken from attitude of hostility toward state courts manifest in other contemporaneous legislation).
162
See Amsterdam, supra note 77, at 802-03; Bator, supra note 2, at 612-16, 621-23 & n.49. But see Saltzburg, supra note 21, at 368,
382 (arguing that the proper interpretation of a statute should be resolved by reference to congressional intent and that
contemporary policy concerns should not be accorded significance).
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163
Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81.
164
See Bator, Finality, supra note 6, at 466; Oaks, supra note 22, at 468; Developments in the Law—Federal Habeas Corpus, 83
Harv. L. Rev. 1038, 1045 (1970). This interpretation of the history of habeas corpus has not gone unchallenged, especially by
legal scholars generally adopting a Nationalist perspective on habeas corpus. See, e.g., Fay v. Noia, 372 U.S. 391, 408-14 (1963);
Peller, In Defense of Federal Habeas Relitigation, 16 Harv. CR.-C.L. L. Rev. 579, 610-16 (1982).
165
See, e.g., Scheckloth v. Bustamonte, 412 U.S. 218, 253-55 (1973) (Powell, J., concurring); Bator, Finality, supra note 6, at 475.
166
See, e.g., Rose v. Mitchell, 443 U.S. 545, 584-85 (1979) (Powell, J., concurring); Bator, Finality, supra note 6, at 451-54.
167
Exceptions generally compatible with a Federalist perspective include those for circumstances when a prisoner has not had a ‘full
and fair opportunity [in state court] to make his defense and litigate his case,’ Bator, Finality, supra note 6, at 456, and when the
sentencing court lacked jurisdiction, see id. at 460-62.
An influential third position, which attempts to mediate between the Federalist and Nationalist perspectives, would allow
litigation on federal habeas where there is a colorable showing of innocence. See, e.g., Rose, 443 U.S. at 586-87 (Powell, J.,
concurring); Schneckloth, 412 U.S. at 265 (Powell, J., concurring). The argument for this position is stated forcefully in Friendly,
Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).
168
See generally Bator, Finality, supra note 6, at 451-54 (systematic federal review would tax resources, demean state judges,
undermine deterrence, and defeat the important goal of repose).
169
Id. at 475; see Rose, 443 U.S. at 580 (Powell, J., concurring); Schneckloth, 412 U.S. at 255 (1973) (Powell, J., concurring); Brown
v. Allen, 344 U.S. 443, 533 (1953) (Jackson, J., concurring).
170
In addition to advancing historical arguments, Bator argues generally that a policy of continuing the search for ultimate truth
beyond the trial level is both epistemologically and pragmatically misguided. While every criminal defendant should have one full
and fair opportunity to raise federal defenses, he would limit federal habeas corpus review to the question whether the state court
had jurisdiction and whether it allowed this opportunity. See Bator, Finality, supra note 6, at 451-62.
171
See Bator, supra note 2, at 623-35. Bator argues that state supreme court judges in particular typically enjoy as much pay and
prestige as do federal district judges and avers that ‘[t]hose that I have met seem to me to be as expert on issues of federal
constitutional laws [sic] as are federal judges.’ Id. at 630. He also argues that state judges are possibly even more likely than
federal judges to be sensitive to ‘structural principles’ that limit the intrusion of federal norms on state processes and prerogatives.
Id. at 631-34.
172
See Bator, supra note 2, at 614; Bator, Finality, supra note 6, at 451-52.
173
Bator, supra note 2, at 624-25.
174
I can think of nothing more subversive to the judge’s inner sense of responsibility than the notion that, to the greatest possible
extent, all the important shots will be called by someone else because we don’t believe in his or her competence and sensitivity. If
we want the state judges to internalize the sense that they, too, speak for the Constitution . . . we must not too easily construct our
jurisdictional and remedial rules on the premise that they can’t and won’t speak for the Constitution.
Bator, supra note 2, at 624-25; see Bator, Finality, supra note 6, at 451.
175
See Amsterdam, supra note 77, at 821-25; Brennan, Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7
Utah L. Rev. 423, 426 (1961); Peller, supra note 164, at 619-20; Saltzburg, supra note 21, at 373-76.
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176
Amsterdam, supra note 77, at 818.
177
Although the Supreme Court retained its jurisdiction to review state criminal convictions on direct appeal by writ of error, a
Nationalist view of the legislative history would not see this as making relitigation in the lower federal courts unnecessary on
federal habeas corpus; many claims are difficult to raise on direct review in the Supreme Court because of the Court’s lack of
capacity to receive testimony or to find facts. See, e.g., Saltzburg, supra note 21, at 375-76.
178
See, e.g., Stone v. Powell, 428 U.S. 465, 525-30 (1976) (Brennan, J., dissenting); Amsterdam, supra note 77, at 802-03; Peller,
supra note 164, at 666-69; Wright & Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding
Responsibility, 75 Yale L.J. 895, 898-99 (1966).
179
344 U.S. 443 (1953). Professor Bator characterizes Brown v. Allen as a significant departure from prior practice. See Bator,
Finality, supra note 6, at 463-65, 499-50. In contrast, Professor Peller has argued that the Supreme Court and the lower federal
courts had almost uniformly construed the 1867 Habeas Corpus Act as conferring jurisdiction to relitigate claims of constitutional
rights. When the cases are carefully read, Peller argues, most of the decisions that Bator characterizes as jurisdictional actually
recognized the existence of federal jurisdiction; they simply denied relief on the merits because of the narrow understanding of
substantive constitutional rights against the states that obtained throughout most of the nineteenth century. See Peller, supra note
164, at 620-21, 630-34. It is extremely difficult to judge the results of the Bator-Peller debate without the aid of organizing
assumptions such as those provided by the Nationalist and Federalist models. Many of the cases resonate with jurisdictional
language, but without absolutely foreclosing Peller’s reading.
180
See Brown, 344 U.S. at 499-500, 506, 508-10 (Frankfurter, J., concurring).
181
See Hart, Foreword, supra note 5, at 107 n.68 (‘Mr. Justice Frankfurter . . . never seems to be wanting in deference to the states . .
..’).
182
Brown, 344 U.S. at 511.
183
In Brown, the Court importantly distinguished between questions of constitutional law, with respect to which relitigation should
occur on a de novo basis, and questions of fact, with respect to which state findings apparently were to be given greater deference.
See, e.g., Brown, 344 U.S. at 463; id. at 506 (Frankfurter, J., concurring). The Court’s ambiguous formulations gave rise to
considerable jurisprudential confusion as to the scope of federal habeas corpus review of state court findings of fact. See Bator,
Finality, supra note 6, at 502. At least some of the confusion has been eliminated by subsequent decisions, see, e.g., Townsend v.
Sain, 372 U.S. 293 (1963), and by congressional amendment of the governing statute, which added the current 28 U.S.C. §
2254(d), in 1966. This section establishes that the factual determinations of the state courts ‘shall be presumed to be correct,’
unless one of eight enumerated criteria is satisfied. To overcome this presumption, the petitioner must show by ‘convincing
evidence’ that the state determination was erroneous. Id.; see Sumner v. Mata, 449 U.S. 539, 550 (1981).
184
428 U.S. 465 (1976).
185
The Stone Court does trace some of the history of the habeas corpus statute, see Stone, 428 U.S. at 474-81, but discussion of the
statute’s meaning vanishes somewhat abruptly as the majority opinion turns to the justifications for and the scope of the
exclusionary rule.
186
See Stone, 428 U.S. at 494 n.35 (rejecting arguments based on skepticism about the fairness and competence of state courts and
affirming that there is no ‘intrinsic reason’ to support the notion that a federal judge should be ‘more competent, or conscientious,
or learned . . . than his neighbor in the state courthouse’ (quoting Bator, Finality, supra note 6, at 509)).
187
See Stone, 428 U.S. at 491 & n.31. Dissenting from a Nationalist perspective, Justice Brennan argued that the Court’s decision
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was incompatible with the purposes of the habeas corpus act. He also vigorously disputed the Court’s Federalist premise that state
courts were as competent as federal courts to adjudicate federal constitutional rights. See id. at 525, 530 (Brennan, J., dissenting).
188
See Peller, supra note 164, at 596 & n.98.
189
See, e.g., Rose v. Mitchell, 443 U.S. 545 (1979) (holding that a petitioner may relitigate a claim of racial discrimination in the
composition of the grand jury). Interestingly, the Court did not rest its Rose decision solely on the authority of Brown, but directly
addressed the question whether a state court was likely to be as fair and reliable as a federal court in adjudicating claims of grand
jury discrimination. With the inquiry so framed, Justice Blackmun’s majority opinion reached the Nationalist conclusion that,
when ‘the allegation is that the state judiciary itself engages in discrimination,’ there is ‘strong reason’ to believe that
constitutional errors may not be ‘appreciated by state judges.’ Id. at 563. Dissenting from a Federalist perspective, Justices Powell
and Rehnquist, objected that the decision wrongly ‘denigrate[d]’ state courts and state judges. Id. at 585 & n.7 (Powell, J.,
concurring).
190
That case, Daniels v. Allen, was consolidated with Brown. See Brown, 344 U.S. at 443.
191
See Hart, Forward, supra note 5, at 118.
192
For an insightful discussion of the independent and adequate state ground doctrine, see Meltzer, State Court Forfeitures of Federal
Rights, 99 Harv. L. Rev. 1128 (1986).
193
See Hart, Foreword, supra note 5, at 118-19 & n.102.
194
372 U.S. 391 (1963).
195
Id. at 415.
196
Id. at 416.
197
The Court attempted to distinguish appellate from habeas corpus review by noting that while the ‘appellate function is concerned
only with the judgments or decrees of state courts,’ Fay, 372 U.S. at 430, which the Supreme Court can disturb solely on grounds
of federal error, the habeas corpus jurisdiction is premised not on a judgment but on ‘detention simpliciter.’ Id. at 430. With its
jurisdiction based solely on a detention, not a judgment, a federal district court, the Court reasoned, could grant relief on habeas
corpus on the basis of a ‘precluded’ federal claim without either impugning the validity of the underlying state conviction or
offending the independent and adequate state ground doctrine that would be applicable on direct review. See id. at 424, 429-34.
Among the difficulties with this argument is that it fails to answer the question how someone validly convicted in state court can
be said to be in detention in violation of the Constitution, laws, or treaties of the United States. See Hart, Foreword, supra note 5,
at 119 & n.102. Focusing on this difficulty, Justice Harlan’s dissenting opinion in Fay argued that a federal district court lacked
constitutional (as distinct from merely statutory) power to order the release on habeas corpus of a state prisoner who had not
properly litigated his federal claim in state court. Fay, 372 U.S. at 468-70 (Harlan, J., dissenting). Where state courts had obtained
a lawful conviction, Justice Harlan argued, it was the state’s sovereign constitutional prerogative to retain the prisoner in state
custody. See id. at 466-67. Although not without rhetorical force, this extreme version of Federalist argument ultimately seems
untenable. It is settled that Congress can, if it so chooses, require state courts in federal procedural rules to observe protection of
federal interest in cases involving federal statutes. See, e.g., Dice v. Akron, C. & Y. R.R., 342 U.S. 359 (1952). Yet if Congress
possesses this power in cases involving federal statutes, it also would appear that Congress, at least if it were to proceed under
section five of the fourteenth amendment, could constitutionally enact procedural legislation requiring the states to waive
procedural defaults involving federal constitutional claims in criminal cases. But if Congress could prescribe that state procedural
rules could not be enforced to bar consideration of federal issues in state court, then Congress also ought to be able to direct that
procedural defaults in state court do not prohibit decision of federal issues on habeas corpus; it is no more objectionable to
undermine the state interest in enforcing its preclusion rules through habeas corpus than it is through direct legislation preempting
those preclusion rules in criminal cases. If this view is correct, the ultimate question in Fay is not one of constitutional power but
of the extent of judicial power conferred by Congress under its grant of habeas corpus jurisdiction.
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198
Fay, 372 U.S. at 431.
199
Id. at 438.
200
See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977); Francis v. Henderson, 425 U.S. 536 (1976).
201
433 U.S. 72 (1977).
202
See id. at 87-88 & n.12.
203
Id. at 87. The Court in Wainwright did not attempt to specify the content of the ‘cause’ and ‘prejudice’ standards. See id. at 91.
Subsequent cases have begun to develop their meaning. See, e.g., Amadeo v. Zant, 56 U.S.L.W. 4460 (May 31, 1988); Murray v.
Carrier, 106 S. Ct. 2639 (1986); Smith v. Murray, 106 S. Ct. 2661 (1986); Reed v. Ross, 468 U.S. 1 (1984); Engle v. Isaac, 456
U.S. 107 (1982) (all applying ‘cause’ standard); United States v. Frady, 456 U.S. 152 (1982) (applying ‘prejudice’ standard).
204
See Smith, 106 S. Ct. at 2668.
205
See, e.g., Carrier, 106 S. Ct. 2639; Smith, 106 S. Ct. 2661; Engle, 456 U.S. 107 (applying ‘cause’ standard); Frady, 456 U.S. 152
(applying ‘prejudice’ standard). But see Amedeo, 56 U.S.L.W. 4460 (finding ‘cause’ for a defendant’s failure to challenge racial
discrimination in the composition of both the grand and travers juries where the evidence of intentional discrimination was
purposely concealed at the time of trial and the statistical underrepresentation of blacks was insufficient to establish a prima facie
case of intentional discrimination under the then applicable legal standard); Reed, 468 U.S. 1 (finding ‘cause’ where, at time of
trial, the defendant’s lawyer could not reasonably have been expected to anticipate the change of law effected by a subsequent
Supreme Court decision).
206
Wainwright, 433 U.S. at 88.
207
Id. at 90.
208
Id.
209
See, e.g., Wainright, 433 U.S. at 105-07 (Brennan, J., dissenting); Francis v. Henderson, 425 U.S. 536, 548-51 (1976) (Brennan,
J., dissenting).
210
See, e.g., U.S. Const. amend. XIV.
211
See Borchard, Government Liability in Tort (pts. 1, 4, & 5), 34 Yale L.J. 1 (1924), 36 Yale L.J. 1, 757 (1926); Jaffe, Suits Against
Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963).
212
This, at any rate, is the consensus view. See, e.g., Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part
I, 126 U. Pa. L. Rev. 515, 527 n.50 (1978); C. Jacobs, The Eleventh Amendment and Sovereign Immunity 151 (1972); Mathis,
The Eleventh Amendment: Adoption and Interpretation, 2 Ga. L. Rev. 207, 207-10 (1968). Judge Gibbons has reached a contrary
conclusion. See Gibbons, supra note 20, at 1899. Gibbons argues that the early colonial governments were suable under their
charters, see id. at 1896-97, that there is no evidence that the state governments that succeeded them considered themselves to be
immune from suit, see id. at 1897-99, and that the widespread adoption of bills of rights during the Revolutionary era indicates the
contrary conclusion that the states must have been amenable to enforcement actions. See id. at 1898-99.
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213
Under English law at the time of the American Revolution, the monarch enjoyed a personal immunity from suit in common law
courts. But this immunity was subject to two important limitations. First, by the eighteenth century, the petition of right, a writ by
which the monarch could be sued with consent, was routinely entertained. See Jaffe, supra note 211, at 3, 5-9. Second, the
monarch’s personal immunity did not extend to other government officials, all of whom were subject to suit without consent. See
id. at 9, 9-16. Based on these limitations, Professor Jaffe concludes that the true meaning of ‘the king can do no wrong’ was that
the king never would do wrong intentionally and, if he did, that he would provide a remedy. Id. at 4. But Jaffe’s conclusion is
ultimately equivocal. Despite the general availability of remedies for unlawful action by the sovereign, Jaffe leaves unanswered
whether the doctrine of sovereign immunity left any instances in which there could be wrongs by the sovereign that were without
remedies under English law.
214
See Mathis, supra note 212, at 211 & n.16.
215
U.S. Const. art. III, § 2; see Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941, 2964-66 (1987) (Brennan, J.,
dissenting); Atascadero State Hosp. v. Scanlon 473 U.S. 234, 261 (1985) (Brennan, J., dissenting); Amar, Sovereignty and
Federalism, supra note 7, at 1467-75; Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of
an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Gibbons, supra
note 20.
216
U.S. Const. art. III, § 2; see Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) (holding that the state of Georgia was not entitled to
claim sovereign immunity in a suit brought in federal court and falling within this jurisdictional category).
217
See, e.g., Atascadero, 473 U.S. at 294-302 (Brennan, J., dissenting); Welch, 107 S. Ct. at 2967-68 (Brennan, J., dissenting);
Fletcher, supra note 215; Gibbons, supra note 20.
218
See Amar, Sovereignty and Federalism, supra note 7, at 1435-36, 1448-78.
219
See Currie, The Constitution in the Supreme Court: 1789-1801, 48 U. Chi. L. Rev. 819, 836 (1981) (‘In the states, apparently to
suit lay against the government. Was it likely that without specifically mentioning it, the convention meant to overthrow this
established principle?’).
220
3 The Debates in the Several State Conventions on the Adoption of the Federal Constituion 533 (J. Elliot ed. 1836) [hereinafter
Elliot’s Debates] (speech of James Madison to the Virginia ratifying convention).
221
See The Federalist No. 81 (A. Hamilton).
222
See 3 Elliot’s debates, supra note 220, at 555 (speech of John Marshall to the Virginia ratifying convention).
223
Their statements, like Madison’s, present a number of purzzles to legal historians. Throughout the ratification debates, both
champions and opponents of the proposed Constitution plainly tailored their positions on state sovereign immunity to gain
political advantage. See, e.g., 1 C. Warren, The Supreme Court in United States History 96 (2d ed. 1926); Fletcher, supra note
215, at 1047-51; Gibbons, supra note 20, at 1903-07. Modern Nationalists have therefore resisted the conclusion that Madison,
Hamilton, and Marshall truly believed that the Constitution upheld state sovereign immunity. Judge Gibbons, for example, has
argued that Madison’s much quoted remarks reflected a subtle distinction between suits predicated on state law, in which cases
states would retain their sovereign immunity, and suits based on federal law, in which cases their immunity would have to yield to
the requirement of federal supremacy. See id. at 1906. The second most plausible interpetation, gibbons believes, is that Madision
was ‘merely dissembling.’ Id. Gibbons similarly argues that Hamilton, in The Federalist No. 81, probably intended his remarks
about the states’ nonamenability to suit to refer to causes of action arising under state law, with respect to which the states
retained many attributes of sovereignty, but not to suits arising under the Constitution, laws, or treaties of the United States. See
id. at 1911-12. Nationalists also draw comfort from the fact that some of the Constitution’s leading proponents, including Edmund
Randolph and James Wilson, explicitly assumed that article III abrogated the states’ sovereign immunity from suit in federal court
and defended it on this basis. See 3 Elliot’s Debates, supra note 220, at 207 (quoting remarks of Edmund Randolph to the Virginia
Convention); 2 Elliot’s Debates, supra note 220, at 491 (quoting remarks of James Wilson to the Pennsylvania Convention).
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In light of the innumerable ambiguities and uncertainties that attend the historical record, most commentators have agreed that the
evidence concerning the constitutional status of state sovereign immunity in the wake of the ratification debates and before the
adoption of the eleventh amendment is mixed, contradictory, and ultimately indeterminate. See, e.g., Field, supra note 212;
Fletcher, supra note 215; Gibbons, supra note 20. More general theories of substantive and judicial federalism, rooted in
interpretations of history but also informed by contemporary concerns of policy and of value, therefore make their way almost
inevitably into the historical debate.
224
2 U.S. (2 Dall.) 419 (1973).
225
For an illuminating analysis of the opinions in the case, including a discussion of the justices’ background assumptions as they
interpreted the relevant constitutional language, see Currie, supra note 94, at 831-39.
226
Chief Justice Jay and Justices Wilson, Blair, and Cushing each wrote separate opinions. None of the justices in the majority
distinguished between common law claims, in which federal jurisdiction must be predicated on the identity of the parties, and
suits ‘arising under’ the Constitution, laws, and treaties of the United States. All of the majority justices relied on the
constitutional language. See Chisholm, 2 U.S. (2 Dall.), at 450-53 (Blair, J.); id. at 466-69 (Cushing, J.). But Chief Justice Jay and
Justice Wilson also introduced other considerations. Before coming to the relevant constitutional language, Chief Justice Jay
found amenability to suit not to be incompatible with the limited sovereignty retained by the states. See id. at 471-72. Justice
Wilson carefully examined and minimized the concept of sovereignty before arguing that the Constitution clearly ‘could vest
jurisdiction,’ id. at 464, over states if the framers had so intended, as he concluded from the language of article III that they did.
Id. at 466. In his interesting dissent, Justice Iredell appeared to draw on Federalist assumptions as he argued that (i) the language
of the Judiciary Act of 1789, read in light of the historical tradition of sovereign immunity, should not be construed to confer
federal jurisdiction of common law actions against a state and (ii) ‘nothing but express words, or an insurmountable implication
(neither of which I consider, can be found in the case)’ could justify holding the suit within article III. Id. at 449-50. Justice
Iredell, however, noted that the suit in Chisholm was based on state law and that jurisdiction was predicated solely on the diverse
citizenship of the parties. With respect to actions under state law, Iredell concluded that Congress would have intended to invest
the federal courts with no more jurisdiction to entertain suits under the common law than was possessed by Georgia state courts,
which would have been obliged to honor the state’s claim of sovereign immunity. Chisholm, 2 U.S. (2 Dall.) at 436-37. Justice
Iredell explicitly reserved the question of the states’ immunity from suits based on federal law. Id. at 449-50.
227
See, e.g., Hans v. Louisiana, 134 U.S. 1, 11 (1890) (the decision ‘created . . . a shock of surprise’); 1 C. Warren, supra note 223, at
96; Fletcher, supra note 215, at 1058. But see Gibbons, supra note 20, at 1926 (‘Congress’s initial reaction to the Chisholm
decision hardly demonstrates the sort of outrage so central to the . . . thesis’ that the decision was universally perceived as an
affront to state sovereign interests that was incompatible with the constitutional plan).
228
See Fletcher, supra note 215, at 1058-59.
229
U.S. Const. amend. XI.
230
See, e.g., Fletcher, supra note 215, at 1060; Gibbons, supra note 20, at 1926-27.
231
See Gibbons, supra note 20, at 1926-27.
232
See Fletcher, supra note 215; Gibbons, supra note 20.
233
See, e.g., Fletcher, supra note 215, at 1060-63; Gibbons, supra note 20, at 1934-38. Although their processes of reasoning are
somewhat different, substantially the same conclusion is reached by other respected commentators. See, e.g., Amar, Sovereignty
and Federalism, supra note 7, at 1473-75; Field, supra note 212, at 538-46; Nowak, The Scope of Congressional Power to Create
Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 Colum. L. Rev.
1413, 1445-46 (1975); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues
in Controversies About Federalism, 89 Harv. L. Rev. 682, 693-99 (1976).
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234
Supportive of this interpretation is that the eleventh amendment received ‘overwhelming support from Federalists in both houses
of Congress.’ Gibbons, supra note 20, at 1934.
235
See, e.g., Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 683 n.17 (1982); Edelman v. Jordan, 415 U.S. 651, 66263 (1974).
236
See, e.g., Employees of the Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 291-92
(1973) (Marshall, J., concurring in the result); Poindexter v. Greenhow (The Virginia Coupon Cases), 114 U.S. 270, 337-38
(1885) (Bradley, J., dissenting).
237
See Pennhurst State School & Hosp. v. Halderan, 465 U.S. 89, 98-100 (1984); Hahs v. Louisiana, 134 U.S. 1 (1889).
238
See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 412 (1821) (holding that the eleventh amendment did not bar Supreme
Court jurisdiction of a criminal appeal because the suit was not brought ‘by a citizen of another State, or by a citizen or subject of
a foreign State’ and thus was not ‘within the amendment, but is governed entirely by the Constitution as originally framed, and we
have already seen, that in its origin, the judicial power extended to all cases arising under the constitution or laws of the United
States, without respect to parties’) (alternative holding). Only once prior to the Civil War, in Ex parte Madrazzo, 32 U.S. (7 Pet.)
627, 632 (1833), did the Supreme Court accept a claim of immunity based on the eleventh amendment. See Orth, The
Interpetation of the Eleventh Amendment, 1798-1908: A Case Study of Judicial Power, 1983 U. Ill. L. Rev. 423, 429 (1983);
Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61, 68-69 (1984). But cf. Collins,
The Conspiracy Theory of the Eleventh Amendment (Book Review), 88 Colum. L. Rev. 212, 223-24 (1988) (noting a potentially
important reservation in Chief Justice Marshall’s Madrazzo opinion).
239
134 U.S. 1 (1890). Hans barred federal jurisdiction of a suit against a state by one of its own citizens—an action beyond the
eleventh amendment’s literal prohibition, which encompasses only suits against a state by the citizens of another state or by
citizens or subjects of a foreign power—in which the plaintiff advanced a constitutional claim that strongly implicated federal
supremacy concerns.
240
Id. at 14-15. The Hans opinion was equivocal on the source of state sovereign immunity—whether in the eleventh amendment,
see, e.g., C. Wright, Law of Federal Courts § 48, 287 & n.6 (4th ed. 1983); Gibbons, supra note 20, at 1893-94; the common law,
see, e.g. Employees of Dep’t of Pub. Health & Welfare v. Department of Pub. Health & Welfare, 411 U.S. 279, 313 (1973)
(Brennan, J., dissenting); Field, supra note 212, at 537 & n.81, or the constitutional plan as it existed prior to the eleventh
amendment, see, e.g., Department of Pub. Health, 411 U.S. at 291-92 (Marshall, J., concurring). Nevertheless, the case represents
the principal source of authority for subsequent cases suggesting that the eleventh amendment requires a general recognition of
state sovreign immunity, despite the amendment’s literal applicability only to suits brought in federal court and ‘commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.’ U.S.
Const. amend. XI; see, e.g., Pennhurst, 465 U.S. at 98; Edelman v. Jordan, 415 U.S. 651, 663 (1974); United States v.
Mississippi, 380 U.S. 128, 140 (1965); Ford Co. v. Department of Treasury, 323 U.S. 459, 464 (1945).
241
See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 260 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens,
JJ., dissenting); Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941, 2965-68 (1987) (Brennan, J., joined by
Marshall, Blackmun, and Stevens, JJ., dissenting).
242
426 U.S. 833 (1976).
243
Atascadero, 473 U.S. at 303 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting) (citing Garcia, 469 U.S.
528). The reference to the Court’s tenth amendment jurisprudence is doubly revealing. First, from a Nationalist perspective,
potential federal jurisdiction should be coextensive with Congress’s legislative powers under article I. Second, as revealed by the
Court’s Garcia opinion, which was joined by all four of the dissenting justices in Atascadero, from a Nationalist perspective the
concept of state sovereignty under the tenth amendment imposes few if any limitations on congressional power. Thus, the
Nationalist model views issues of judicial federalism as closely related to, and sometimes determined by, a more substantive
theory of congressional prerogatives vis-a-vis the states in the constitutional scheme. For a discussion of the relationship between
the Supreme Court’s recent cases involving state sovreignty claims under the tenth and eleventh amendments, see Brown, State
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Sovreignty Under the Burger Court—How the Eleventh Amendment Survived the Death of the Tenth: Some Broader Implications
of Atascadero State Hospital v. Scanlon, 74 Geo. L.J. 363 (1985).
244
See Welch, 107 S. Ct. 2941.
245
See id. at 2957-58.
246
Federalists as well as Nationalists concur in this conclusion. See, e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S.
89, 104-05 (1984) (accepting as ‘necessary’ the exception associated with Ex parte Young) (opinion of Powell, J.).
247
Cf. Shapiro, supra note 238, at 84-85 (describing disputes over the application of sovereign immunity doctrine as being between
those who approach the doctrine with a degree of respect approaching ‘awe’ and those who, like himself, have been content to
work with the doctrien while recognizing that ‘the notion of the state’s immunity from suit is itself [a] fiction . . . that never
properly stands in the way of ultimate vindication of the rights of the individual against the state’ (footnote omitted)).
248
Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 842-43 (1824). Marshall also propounded the complementary theory
that, because a state cannot authorize its officials to violate the Constitution, any unconstitutional action must be that of some
individual rather than the state. See id. at 838, 859. But cf. Collins, supra note 238, at 223 (noting that Marshall, in Georgia v.
Madrazzo, 26 US. (1 Pet.) 110, 124 (1828), posited that ‘even were the state not named, the defendant officer still had to have a
real interest in the controversy familiar to the common law’ in order to justify a decree against the officer personally).
249
The Supreme Court allowed injunctive relief against state officers, consistently through Board of Liquidation v. McComb, 92
U.S. 531 (1876), even when the purpose and effect of the lawsuit were to determine their official actions. See Gibbons, supra note
20, at 1978. The departure from this pattern appears to have come in Louisiana v. Jumel, 107 U.S. 711 (1882), in which seven
justices held that a suit to prevent a state’s impairment of its obligations on a contract was effectively a suit against the state itself
brought by the citizens of another state and that ‘under the Eleventh Amendment of the Constitution no State can be sued in the
courts of the United States by the Citizens of another State.’ Id. at 720.
250
Currie, Sovereign Immunity and Suits Against Government Officers, 1984 Sup. Ct. Rev. 149, 151 n.11.
251
See Gibbons, supra note 20, at 1991-2002. In its stead came a period of vacillation. During this period, the leading issue involved
the capacity of the federal courts to compel the former Confederate states to make payments on debts that they had incurred
before the Civil War. So enormous was the burden, and so politically unpopular was repayment, that in the post-Reconstruction
years all of the southern states repudiated at least part of their debts. Orth, supra note 238, at 435. Historians have suggested that
the Court shied from authorizing jurisdiction in cases involving the former Confederate states because it recognized that judicial
decrees could not be enforced against them. See, e.g., Gibbons, supra note 20, at 1998; Orth, supra note 238, at 435. During the
same period the Court generally continued to uphold federal jurisdiction in suits involving states where the prospects for
obedience or enforcement were better. See id. at 447-50.
252
123 U.S. 443 (1887).
253
In part the Ayers opinion was written as if to suggest that constitutional significance attaches to the fact that the suit essentially
was one to enforce a contract. See id. at 505. But the suggestion that the states enjoyed substantive freedom to violate contracts
was inconsistent with Supreme Court authority dating to Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). Moreover, other
language in the opinion suggested a more broadly Federalist interpretation of the eleventh amendment: ‘To secure the manifest
purposes of the constitutional exemption guaranteed by the 11th Amendment requires that it should be interpreted, not literally
and narrowly, but fairly, and with such breadth and largeness as effectually to accomplish the substance of its purposes.’ Ayers,
123 U.S. at 505-06.
254
209 U.S. 123 (1908).
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255
Id. at 160.
256
Id.
257
This fiction was in fact firmly established prior to Young, see, e.g., Gunter v. Atlantic Coast Line R.R., 200 U.S. 273, 283-84
(1906); Smyth v. Ames, 169 U.S. 466, 518-19 (1898), and arguably traces back to Osborn v. Bank of the United States, 22 U.S. (9
Wheat.) 738, 842-43 (1824).
258
See, e.g., Neuborne, supra note 16, at 1108.
259
See Fletcher, supra note 215, at 1041 n.25.
260
Ex parte Young, 209 U.S. 123, 176 (1908) (Harlan, J., dissenting).
261
415 U.S. 651 (1974).
262
See id. at 665 (‘The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois,
and thus the award resembles far more closely the monetary award against the State itself . . . than it does the prospective
injunctive relief awarded in Ex parte Young.’).
263
See Fletcher, supra note 215, at 1120.
264
Milliken v. Bradley, (II), 433 U.S. 267 (1977). The Court reasoned that, although the programs were designed to compensate for
past harms, they were permissible under Edelman because ‘they are part of a plan that operates prospectively to bring about the
delayed benefits of a unitary school system.’ Id. at 290. But this rationalization is not convincing, since all judicial orders—
including awards of damages—operate prospectively in the same sense as the compensation in Milliken (II).
265
See Hutto v. Finney, 437 U.S. 678 (1978).
266
See, e.g., Amar, Sovereignty and Federalism, supra note 7, at 1480.
267
A constitutional value judgment lies plainly on the surface of the important decision in Pennhurst State School & Hosp. v.
Halderman, 46k U.S. 89 (1984), in which a passionately divided Supreme Court held by a five-to-four vote that the Young fiction
could not be used to strip state officers of eleventh amendment immunity based on their alleged violations of a state constitution.
Prededent plainly did not determine the result. Distinguishing large numbers of cases, see id. at 109-17, Justice Powell’s Court
opinion took its main support directly from Federalist values. Justice Powell characterized state sovereignty as a bedrock value of
the federal system that was embodied in the eleventh amendment. See id. at 97-100. Bowing partially to Young and the
Nationalist values on which it rests, the majority acknowledged that federal courts must be available to vindicate federal rights in
suits for injunctions against state officials. See id. at 105-06. But where a plaintiff sought to enforce the state constitution, and
federal rights thus were not directly in issue, Justice Powell concluded that the Federalist interests must prevail. See id. at 106.
Justice Stevens’s angry Pennhurst dissent accused the Court of overruling at least twenty-eight cases, see id. at 127 (Stevens, J.,
dissenting), in which, he asserted, the Court had either held that a suit against an officer was not a suit against a state or had
upheld pendent jurisdiction of state law injunctive claims against state officials when the plaintiff also had asserted a claim to
relief under federal law that was actionable in federal court under the fiction of Young. More was at stake, however, than fidelity
to state decisis. The opportunity to litigate both state and federal claims in one proceeding provides a strong reason for plaintiffs
seeking injunctions against state officials to present their federal claims in state court, rather than in a federal forum, where
Pennhurst would allow only federal claims to be heard. Though it remains a possibility, the bifurcation of the claims—federal
claim in federal court, state claim in state court—could be both excessively costly and procedurally treacherous. See Shapiro,
supra note 238, at 80-82; Werhan, Pullman Abstention After Pennhurst: A Comment on Judicial Federalism, 27 Wm. & Mary L.
Rev. 449 (1986). As a result, Pennhurst seems to make it less likely that all meritorious federal claims will be presented in a
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federal forum. As much as the reasoning on which the majority rested, this is a result uncongenial to the Nationalist values that
most adequately explain the result in Young.
268
427 U.S. 445 (1976).
269
Writing for the Court, Justice Rehnquist reasoned that a settled ‘line of cases has sanctioned intrusions by Congress, acting under
the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States’
and has recognized an expansion of congressional power ‘with the corresponding diminution of state sovereignty.’ Id. at 455.
270
See D. Currie, Federal Jurisdiction in a Nutshall 161 (2d ed. 1981).
271
See id.; Fletcher, supra note 215, at 1113.
272
See Fitizpatrick v. Bitzer, 427 U.S. 445, 457-60 (Brennan & Stevens, JJ., concurring separately) (1976).
273
See Welch v. Texas Dep’t of Highways & Pub. Transp., 107 Sup. Ct. 2941 (1987); Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). The
Court has visited this question before, but with results that now seem inconclusive. Parden v. Terminal Ry., 377 U.S. 184 (1964),
squarely put the question of congressional powerBut the Court’s opinion left the answer unclear. At one point, Justice Brennan’s
opinion for the Court appeared to issue a Nationalist conclusion: ‘By empowering Congress to regulate commerce, then, the
States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation,’ including their
sovereign immunity from suit. Id. at 192. No sooner had Justice Brennan taken this position, however, than he tacked in a
Federalist direction. ‘It remains the law,’ he wrote, ‘that a State may not be sued by an individual without its consent.’ Id.
Consistently with the latter premise, the Court undertook a ‘waiver’ analysis to determine whether the state of Alabama, by
continuing to operate a railroad in interstate commerce after Congress had provided that all such railroads would be suable in
federal district court, had impliedly consented to suit. Parden’s conjunction of the ‘abrogation’ and ‘waiver’ questions rests on a
transparent confusion. See, e.g., M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 142 (1980); Tribe,
supra note 233, at 688-89. If Congress has power to abrogate state sovereign immunity under the commerce clause, then state
consent to suit is not required. Nonetheless, the confusion has not been clearly resolved by subsequent cases.
274
The time of decision may be close, since the Supreme Court has granted certiorari in a case that the court of appeals found to raise
this question. United States v. Union Gas Co., 832 F.2d 1343 (3d Cir. 1987), cert. granted sub nom. Pennsylvania v. Union Gas
Co., 108 S. Ct. 1219 (1988). In the Supreme Court, however, the antecedent question will of course be whether Congress made its
intent to abrogate state sovereign immunity sufficiently clear for this question to be properly presented. See infra notes 278-81
and accompanying text.
275
See supra notes 230-34 and accompanying text.
276
See, e.g., Nowak, supra note 233, at 1441-42; Tribe, supra note 233, at 693-94.
277
See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 556-57 (1985).
278
See Parden v. Terminal Ry., 377 U.S. 184 (1964) (reasoning that the Court ‘should not presume to say, in the absence of express
provision to the contrary, that [Congress] intended to exclude’ the states from otherwise applicable substantive and jurisdictional
legislation).
279
For a forceful defense, see Brown, supra note 243.
280
See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238-46 (1985); Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89, 99 (1984) (‘Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
recognition of the vital role of sovereign immunity in our federal system.’); Edelman v. Jordan, 415 U.S. 651, 674 (1974).
281
Atascadero, 473 U.S. at 243, quoted in Welch v. Texas Dep’t of Highways & Pub. Transp., 107 S. Ct. 2941, 2946 (1987) (pluralit
opinion).
282
The controversy focuses almost exclusively on the power of state courts to compel action by federal officials in the performance
of their official functions through writs of habeas corpus and mandamus and injunctions. In other kinds of actions, state courts
routinely interpret and apply federal law and in the process of doing so must rule on the lawfulness of federal administrative
action and on the constitutionality of acts of Congress. See Hart & Wechsler, supra note 4, at 488-92. Nor, subject to the removal
provisions of 28 U.S.C. §§ 1441, 1442, and 1442a, are state courts generally disabled from exercising jurisdiction over federal
officials in criminal actions, see, e.g., Colorado v. Symes, 286 U.S. 510 (1932), suits for damages, see, e.g., Scranton v. Wheeler,
179 U.S. 141 (1900); Teal v. Felton, 53 U.S. (12 How.) 284 (1851), or in actions at law for specific relief, such as replevin and
ejectment, see, e.g., Scranton, 179 U.S. 141; Teal v. Felton, 53 U.S. (12 How.) 284 (1851), or in actions at law for specific relief,
such as replevin and ejectment, see, e.g., Scranton, 179 U.S. 141; United States v. Lee, 106 U.S. 196 (1882); Slocum v.
Mayberry, 15 U.S. (2 Wheat.) 1 (1817). But see Stanley v. Schwalby, 162 U.S. 255 (1896) (action may not be brought in state
court if United States is a necessary party). For general discussions of state court jurisdiction and powers in cases involving
federal officers, see Arnold, The Power of State Courts to Enjoin Federal Officers, 73 Yale L.J. 1385 (1964); Note, Limitations on
State Judicial Interference with Federal Activities, 51 Colum. L. Rev. 84 (1951).
283
80 U.S. (13 Wall.) 397 (1871). Tarble’s Case was itself decided largely on the authority of Ableman v. Booth, 62 U.S. (21 How.)
506 (1858).
284
See Arnold, supra note 282, at 1401-02 (the supremacy clause, which binds state courts to enforce the Constitution, implies the
power as well as the obligation to do so); Hart & Wechsler, supra note 4, at 491. The Judiciary Act of 1789 did not confer original
federal jurisdiction over suits or proceedings against federal officers arising out of their official acts. One commentator thus has
concluded that
[t]he theory of that legislation seems to have been that remedies against Federal officers were to be enforced in the State courts
except when in case of diverse citizenship the circuit court had concurrent jurisdiction, and that supervision by the national
government could be sufficiently exercised by writ of error from the highest court of the State to the Supreme Court of the United
States.
Bishop, The Jurisdiction of State and Federal Courts Over Federal Officers, 9 Colum. L. Rev. 397, 397 (1909).
285
See The Moses Taylor, 71 U.S. (4 Wall.) 411, 429-30 (1866).
286
See, e.g., Tarble’s Case, 80 U.S. (13 Wall.) 397, 408-09 (1871); Redish & Woods, Congressional Power to Control the
Jurisdiction of Lower Federal Courts: A Critical Review and a New Synthesis, 124 U. Pa. L. Rev. 45, 97-101 (1975).
287
See, e.g., Alabama ex rel. Gallion v. Rogers, 187 F. Supp. 848, 852 (M.D. Ala. 1960) (denying state court power to enjoin federal
enforcement of federal civil rights law and noting that ‘[s]uch action by the state courts . . . cannot be tolerated without there
being created frustration of national purposes’), aff’d per curiam, 285 F.2d 430 (5th Cir.), cert. denied, 366 U.S. 913 (1961);
Kennedy v. Bruce, 298 F.2d 860 (5th Cir. 1962) (affirming the earlier holding in the Rogers case in a similar civil rights action);
Redish & Woods, supra note 286, at 89-92 (arguing that civil rights cases support the proposition that state courts lack power to
enjoin federal officials); Note, Draft Reclassification for Political Demonstrations—Jurisdictional Amount in Suits Against
Federal Federal Officers, 53 Cornell L. Rev. 916, 928 (1968) (arguing that due to concerns about efficiency and the possibility of
state obstructionism, state courts should not have the power to enjoin federal officials).
288
See, e.g., Tarble’s Case, 80 U.S. (13 Wall.) 397, 408-09 (1871) (state authority to issue writs of habeas corpus against federal
officials could undermine constitutional power to raise and support armies and provide for regulation of armed services);
Ableman v. Booth, 62 U.S. (21 How.) 506, 515 (1858) (state courts may not issue writs of habeas corpus against federal officers,
because the national government could not fulfill its constitutional functions ‘if offences against its laws could not [be] punished
without the consent of the State in which the culprit was found’); Redish & Woods, supra note 286, at 82-102; Note, supra note
287, at 929.
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289
See Redish & Woods, supra note 286, at 102; cf. Tarble’s Case, 80 U.S. (13 Wall.) 397, 411 (1871) (federal courts stand ready to
vindicate constitutional rights in cases where state courts lack jurisdiction). See generally Neuborne, supra note 16 (federal courts
are recognized by constitutional litigators as preferable to state forums for the vindication of federal constitutional rights).
290
Tarble’s Case, 80 U.S. (13 Wall.) 397, 408-09 (1871).
291
Id. at 410-11
292
Compare Redish & Woods, supra note 286, at 84-109 (defending Tarble’s Case and promoting a general theory of congressional
power to control state and federal jurisdiction based on its rule) with Hart & Wechsler, supra note 4, at 491 (attacking the
reasoning in Tarble’s Case and, with respect to theory advanced by Redish and Woods, wondering ‘Why should the dubious tail
of Tarble’s Case was such a large dog?’); see also Sager, supra note 87, at 80-84 (discussing the debate over Tarble’s Case and
concluding that the dispute is of little practical importance, because Congress could always ensure exclusive federal jurisdiction
by affirmatively expressing such an intent).
293
These include questions of state judicial authority to issue writs of mandamus and injunctions commanding action by federal
officials. See Hart & Wechsler, supra note 4, at 489-90.
294
See Redish & Woods, supra note 286, at 93-109.
295
Hart & Wechsler, supra note 4, at 491.
296
Although Redish & Woods argue that the case expresses a constitutional mandate, see Redish & Woods, supra note 286, at 94-95,
they also take the seemingly incompatible position that Congress could override the decision by specifically authorizing the state
courts to issue writs of mandamus against federal officials. See id. at 106; cf. Redish, Constitutional Limitations on Congressional
Power to Control Federal Jurisdiction: A Reaction to Professor Sager, 77 NW. U.L. REV. 143, 157-59 (1982) (asserting that
Tarble’s Case should be read as involving ‘simply an inference of congressional intent to exclude state court power in the face of
congressional silence’).
297
See Hart & Wechsler, supra note 4, at 491 & n.7; Note, supra note 282, at 87 n.31.
298
The Court specifically noted the existence of an available remedy in federal court. See Tarble’s Case, 80 U.S. (13 Wall.) 397, 411
(1871).
299
See Redish, supra note 296, at 157-59; cf. Hart & Wechsler, supra note 4, at 488 (suggesting that Tarble’s Case may have been
based on a variety of factors, of which the existence of a federal statute was one).
300
See, e.g., Hart & Wechsler, supra note 4, at 488.
301
For illuminating iscussions of the capacity of the federal courts to craft subconstitutional rules of federal common law,
implementing constitutional norms but not required by them and therefore subject to replacement by Congress, see Field, Sources
of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881 (1986); Monaghan, The Supreme Court 1974 Term—
Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). For more restrictive views of the scope of federal judicial
power to craft common law rules, see Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1 (1985); Schrock
& Welsh, Reconsidering the Constitutional Common Law, 91 Harv. L. Rev. 1117 (1978).
302
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816).
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303
U.S. Const. art. VI, cl. 2.
304
Although Congress has undoubted power to create exclusive federal jurisdiction in cases presenting federal issues, see The Moses
Taylor, 71 U.S. (4 Wall.) 411 (1866), it has rarely done so. For a general discussion of congressional exclusion of state court
jurisdiction over cases presenting federal issues, see Hart & Wechsler, supra note 4, at 479-81. Moreover, an established and
virtually unchallenged presumption holds that a grant of federal jurisdiction generally should not be interpreted to preclude
concurrent state jurisdiction. See, e.g., Claflin v. Houseman, 93 U.S. 130, 136 (1876) (the state court has ‘jurisdiction, where it is
not excluded by express provision, or by incompatibility in its exercise from the nature of the particular case’); Charles Dowd
Box Co. v. Courtney, 368 U.S. 502 (1962). But cf. Tarble’s Case, 80 U.S. (13 Wall.) 397, 407 (1872) (federal jurisdiction is
inappropriate, ‘except so far as it may be necessary . . . to preserve [the National government’s] rightful supremacy in cases of
conflict of authority’). The presumption that state courts may exercise jurisdiction concurrent with that of federal courts reflects in
substantial part the influence of the Federalist model, even among judges and commentators who more commonly reason from
Nationalist premises. But see Redish & Muench, Adjudication of Federal Causes of Action in State Courts, 75 Mich. L. Rev. 311,
313-40 (1976) (criticizing the presumption). But prevailing principles governing the parties’ selection of a state or federal forum
render concurrent jurisdiction almost wholly inoffensive to Nationalist values. If federal jurisdiction exists by statute, a plaintiff
enjoys the option to sue in federal court. Further, in nearly any case in which the plaintiff could have selected a federal forum, the
defendant has a right of removal. See 28 U.S.C. § 1441(a) (1982).
305
The best known and most forceful statement of this position comes from Justice Frankfurter’s concurring opinion in Brown v.
Gerdes, 321 U.S. 178, 188-89 (1944) (Frankfurter, J., concurring):
Neither Congress nor the British Parliament nor the Vermont Legislature has power to confer jurisdiction upon the New York
Courts . . . [s]ubject to only one limitation, each State of the Union may establish its own judicature, distribute judicial power
among the courts of its choice, define the conditions for exercise of their jurisdiction and the modes of their proceeding, to the
same extent as Congress is empowered to establish a system of inferior federal courts within the limits of federal judicial power,
and the States are as free from control by Congress in establishing state systems for litigation as is Congress free from state
control in establishing a federal system for litigation.
306
See Hart & Wechsler, supra note 4, at 497 (asking whether the view that Congress may not require the states to accept jurisdiction
is ‘tenable in light of the possibility that Congress may may choose not to create any lower federal courts at all’); cf. Hart,
Dialogue, supra note 5, at 1401 (asserting that state courts ‘are the primary guarantors of constitutional rights, and in many cases
they may be the ultimate ones’).
307
See Brown, 321 U.S. at 188 (Frankfurter, J., concurring); General Oil Co. v. Crain, 209 U.S. 211, 232-33 (1908) (Harlan, J.,
concurring).
308
See Dice v. Akrone, C. & Y. R.R., 342 U.S. 359, 367 (1952) (Frankfurter, J., dissenting) (recognizing, despite Justice
Frankfurter’s views as expressed in Brown, 321 U.S. at 188, that ‘a State must entertain negligence suits brought under the
Federal Employers’ Liability Act if it entertains ordinary [state law] actions for negligence’); cf. Federal Energy Regulatory
Comm’n v. Mississippi, 456 U.S. 742, 784-85 (1982) (O’Connor, J., dissenting) (acknowledging that state courts can be required
not to discriminate against federal claims but distinguishing, and finding violative of the tenth amendment, a federal requirement
that state administrative agencies consider adoption and implementation of federal standards).
309
See, e.g., Amar, Sovereignty and Federalism, supra note 7, at 1509-10; Neuborne, Procedural Parity, supra note 86, at 761-62.
310
See, e.g., Neuborne, Procedural Parity, supra note 86, at 759-60; Redish & Muench, supra note 304, at 342-43; Sandalow, Henry
v. Mississippi and the Adequate State Ground: Proposals for a Revised Doctrine, 1965 Sup. Ct. Rev. 187, 207 n.84; cf. Federal
Energy Regulatory Comm’n v. Mississippi, 456 U.S. 742 (1982) (upholding congressional authority, in a preemptible field, to
require state utility regulatory commissions and state reviewing courts to conform to federal regulations).
311
209 U.S. 211 (1908).
312
See Crain, 209 U.S. at 224-228. One sentence in the Court’s opinion could be read to suggest that, because of the eleventh
amendment, the suit could not have been litigated in federal court:
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If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution, and may be
forbidden by a state to its courts, as is contended in the case at bar that it may be . . . it must be evident that an easy way is open to
prevent the enforcement of many provisions of the Constitution, and the Fourteenth Amendment, which is directed at state action,
could be nullified as to much of its operation.
Id. at 226. If this was in fact the Court’s understanding, its holding would be consistent with one version of the Federalist position.
See supra note 304 and accompanying text. But it is highly uncertain that the Court actually believed that a suit in federal court
would have been barred; Crain was decided on the same day as Ex parte Young, 209 U.S. 123 (1908), which held that a suit
against a state official for injunctive relief—the same relief sought in Crain—was not a suit against the state and thus not barred
from federal court by the eleventh amendment. Moreover, the surrounding sentences suggest that the crucial distinction
determining the obligations of the state courts is not one involving the availability or nonavailability of federal judicial relief; it is,
rather, ‘between valid and invalid state laws, as determining’ whether the suit is one against the state—in which case the state
may insist upon its sovereign immunity—or one against state officials. Crain, 209 U.S. at 226. Because a state cannot authorize
its officers to behave unconstitutionally, official action pursuant to an invalid state law cannot be protected by sovereign
immunity; and a state court cannot decline to exercise jurisdiction on this basis.
313
See Crain, 209 U.S. at 232-33 (Harlan, J., dissenting).
314
See Iowa-Des Moines Nat’l Bank v. Bennett, 284 U.S. 239, 247 (1931) (a state court is obliged by federal law to order a refund as
the remedy for taxes collected in violation of the fourteenth amendment, despite the court’s lack of state law authority to award
this remedy); Ward v. Love County, 253 U.S. 17, 24 (1920) (no state statutory authority is necessary to establish a right to recover
money exacted by a county ‘through imposition’ and ‘in contravention of the Fourteenth Amendment’); see also Allied Stores v.
Bowers, 358 U.S. 522, 526 (1959) (federal rather than state law determines whether a state court must recognize a plaintiff’s
standing to assert federal constitutional claims).
315
P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 935 (2d ed.
1973). The more recent third edition of Hart & Wechsler, see supra note 4, does not repeat the claims discussed in the text.
316
The relevant case are Musgrove v. Georgia R.R. & Banking Co., 335 U.S. 900 (1949), and Georgia R.R. & Banking Co. v.
Redwine, 342 U.S. 299 (1952). In the Musgrove case, which came first, the Georgia Supreme Court had held that the Georgia
court could not exercise jurisdiction over a lawsuit asserting constitutional claims because the action was an unconsented action
against the state barred by the state law of sovereign immunity. See Musgrove v. Georgia R.R. & Banking Co., 204 Ga. 139, 49
S.E.2d 26 (1948). By dismissing an appeal on the basis that the state court’s judgment rested on an adequate nonfederal ground,
see Musgrove, 335 U.S. 900, the United States Supreme Court Court clearly implied that the state court was under no
constitutional obligation to entertain the suit. The second Supreme Court decision in Redwine occurred when the same action was
refiled in federal court. In Redwine the Court treated as open the question whether the suit must be dismissed from federal court as
a forbidden action against the state within the meaning of the eleventh amendment. To this question the Court in fact gave the
answer that the eleventh amendment did not apply. Redwine, 342 U.S. at 305. But Redwine’s view that the federal action
presented an open question concerning the existence of federal jurisdiction, when coupled with the earlier dismissal of the appeal
from the state’s refusal to exercise jurisdiction in the state action between the parties, could be read to imply that a state court
need not grant a remedy for the violation of federal constitutional rights, even in a case in which federal jurisdiction might be
found not to exist.
317
A careful reading of the Georgia Supreme Court’s opinion in the Musgrove case reveals a highly plausible basis on which Crain
might be distinguished. The state court in Musgrove stated specifically that its holding implied no conclusion as to the remedies
that might be available if the defendant should seize or levy upon the plaintiff’s property—‘the defendant having done no more
than theaten to make assessments.’ Musgrove v. Georgia R.R. & Banking Co., 204 Ga. 139, 159, 49 S.E.2d 26, 38 (1948). With
the case in this posture, the Supreme Court, in dismissing an appeal as resting on an adequate state law ground, could have viewed
the decision as based on a valid state law rule concerning not the existence but the timing of remedies against the state. Cf.
Atchinson, T. & S.F. Ry. v. O’Connor, 223 U.S. 280, 285 (1912) (no constitutional right to an injunction against state taxes).
318
See Flectcher, supra note 215, at 1096. An exception to this generalization is required for cases in which plaintiffs seek just
compensation for the taking of their property for public use. The Court has held that the just compensation clause of the fifth
amendment compels the states to provide a damages remedy for permanent or temporary takings of private property. See First
English Evangelical Lutheran Church v. County of Los Angeles, 107 S. Ct. 2378 (1987). Chief Justice Rehnquist’s opinion in
First English was careful to rest its holding on the remedial significance of the just compensation clause and thus not to imply any
broader obligation of the state courts to provide remedies not authorized by state law. See id. at 2388-89.
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319
For a thorough elaboration of the relevant considerations, see Wolcher, Sovereign Immunity and the Supremacy Clause: Damages
Against States in Their Own Courts for Constitutional Violations, 69 Calif. L. Rev. 189 (1981). This issue is closely related to,
and partially overlaps with, the dispute over whether the eleventh amendment should be construed to bar federal jurisdiction of a
case against a state based on a claim of constitutional right. That debate, and the opposed Federalist and Nationalist positions, are
discussed above. See supra text accompanying notes 282-301. Also bearing on the question would be the decision in Nevada v.
Hall, 440 U.S. 410 (1979), that one state need not extend to another the privilege of sovereign immunity from suit in its courts. As
the dissenting justices noted, the implication of the holding is that ‘the sovereign-immunity doctrine has no constitutional source.’
Id. at 428 (Blackmun, J., dissenting) (emphasis added). If so, the claim that a state may invoke sovereign immunity against suits
to enforce federal and even constitutional rights seems much weakened.
320
See, e.g., Douglas v. New York, N.H. & H.R.R., 279 U.S. 377, 387-88 (1929); Missouri ex rel. S. Ry. v. Mayfield, 340 U.S. 1, 45 (1950).
321
For a defense of this presumption, see Sandalow, supra note 310, at 207.
322
See McKnett v. St. Louis & S.F. Ry., 292 U.S. 230 (1934). There is language in some Supreme Court cases suggesting that the
obligation to accept jurisdiction absent a federally valid excuse stems directly from the Constitution. See, e.g., Testa v. Katt, 330
U.S. 386, 391 (1947); McKnett, 292 U.S. at 233-34. But it is hard to regard the nondiscrimination requirement as being
constitutionally mandated in the sense that it could not be modified by Congress. If Congress so chose, no constitutional principle
would seem to be offended by a statute authorizing state courts to refuse jurisdiction of federal causes of action, even on a
discriminatory basis, in cases where federal courts were open to vindicate the federal rights.
323
It is clear that Congress can require state courts to adjudicate federal causes of action in the absence of a nondiscriminatory
excuse, such as a uniformly applied policy of forum non convenies. See, e.g., Testa, 330 U.S. 386; McKnett, 292 U.S. 230; Redish
& Muench, supra note 304, at 341.
324
The Court’s constructions of both state and federal law sometimes have seemed designed to obviate the need for decision. Redish
& Muench, supra note 304, at 346; see Douglas, 279 U.S. 377 (the Employers’ Liability Act imposes no duty of adjudication ‘as
against an otherwise valid excuse’).
325
456 U.S. 742 (1982).
326
Federal Energy Regulatory Comm’n involved the constitutionality of the Public Utility Regulatory Policies Act of 1978, Pub. L.
95-617, 92 Stat. 3117. Among other effects, the Act directed state regulatory commissions to enforce certain federal standards;
required the state commissions to consider the adoption and implementation of specific rate design and regulatory standards;
prescribed procedures to be followed in the administrative consideration; and established that ‘any person’ may bring an action in
state court to enforce the state’s obligations under the Act. Upholding the constitutionality of the Act against a tenth amendment
challenge based on state sovereignty interests, the Court reasoned that, where Congress could have preempted the field entirely,
the legislatively chosen alternative was less intrusive on traditional state sovereign prerogatives and therefore constitutionally
permissible. Federal Energy Regulatory Comm’n, 456 U.S. at 764-71. Significantly, only Justice Powell dissented from the
Court’s sustaining of Congress’s power to require judicial enforcement in the state courts of state administrative obligations
lawfully imposed by Congress. See id. at 773-75 (Powell, J., dissenting).
327
426 U.S. 833 (1976).
328
See Hart & Wechsler, supra note 4, at 498.
329
See Merritt, supra note 33, at 11-12.
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330
469 U.S. 525 (1985).
331
See Garcia, 469 U.S. at 537-54 (overruling National League of Cities); see also South Carolina v. Baker, 108 S. Ct. 1355, 1360
(1988) ( ‘States must find their protection from congressional regulation through the national political process, not through
judicially defined spheres of unregulable state activity.’).
332
Garcia, 469 U.S. at 566.
333
Id. at 580 (Rehnquist, J., dissenting); see also Stewart, supra note 16, at 971 (National League of Cities may be resurrected.).
334
Closely analogous questions, in which the models are similarly implicated and their equilibrium similarly volatile, arise when a
state court accepts jurisdiction over a federal statutory claim but applies procedural rules that are less hospitable to that claim than
are the parallel federal procedures. The issue then is whether Congress would have wished to require the state courts to apply
federal procedural rules and, if so, whether Congress is constitutionally competent to impose procedural obligations on the states.
With respect to the question of congressional intent, when Congress creates federal statutory rights, the legislative history seldom
addresses the procedures to be followed in state court adjudications; presumptions therefore are crucially important. Generally, in
the absence of indications to the contrary, the Supreme Court imputes to Congress a set of Federalist understandings: it assumes
that Congress, respectful of the interests supporting uniform procedures in state courts, would have intended federal law to take
state courts as it finds them. See C. Wright, supra note 240, § 45, at 271-73; Hart & Wechsler, supra note 4, at 637-38.
Nonetheless, without any express indication of congressional intent, the Supreme Court at least occasionally has reasoned from
the competing Nationalist perspective. For example, it has held that state courts adjudicating claims under the Federal Employers
Liability Act, 45 U.S.C. §§ 51-60 (1982), must follow federal divisions of responsibility between judge and jury, see Dice v.
Akron, C. & Y. R.R., 342 U.S. 359 (1952), that tey must abandon pleading rules that are substantially more burdensome than their
federal counterparts, Brown v. Western Ry., 338 U.S. 294 (1949), and that they may not enforce notice requirements that frustrate
the ready enforcement of federal rights in § 1983 actions, see Felder v. Casey, 108 S. Ct. 2302 (1988). Besides reflecting the
Nationalist position that specific legislative intent need not always be proved in order to hold that state procedural requirements
must give way to the interest in enforcing federal rights, these cases reject the Federalist position concerning the scope of
congressional power to impose procedural obligations on the states. The cases are few, however, and the fairest summary would
probably be that the ongoing competition between the two models gives rise to considerable doctrinal uncertainty, if not
instability, throughout the field.
335
S. 210, 96th Cong., 1st Sess., 125 Cong. Rec. 7577 (1979) (Helms amendment); see Gunther, Congressional Power to Curtail
Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 900 (1984).
336
See Gunther, supra note 335, at 897.
337
Id. at 900.
338
49 U.S. (8 How.) 441 (1850).
339
Id. at 448.
340
See, e.g., Amar, Neo-Federalist View, supra note 7, at 231-38; Eisenberg, Congressional Authority to Restrict Lower Federal
Court Jurisdiction, 83 Yale L.J. 498, 504-05 (1974).
341
See, e.g., Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 327-29 (1816); Amar, Neo-Federalist View, supra note 7, at 231-32;
Clinton, supra note 69, at 749-50.
342
See, e.g., Hart & Wechsler, supra note 4, at 11; Bator, Congressional Power, supra note 6, at 1030-37; Gunther, supra note 335.
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343
See, e.g., Bator, Congressional Power, supra note 6, at 1030-31; Gunther, supra note 335, at 912-13.
344
Bator, Congressional Power, supra note 6, at 1031 (emphasis in original).
345
Id.
346
See Martin, 14 U.S. (1 Wheat.) at 328-39 (Story, J.).
347
See Sager, supra note 87, at 45-57.
348
See Amar, Neo-Federalist View, supra note 7, at 231-32.
349
See J. Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 246-47 (1971);
Eisenberg, supra note 340.
350
It has generally been so regarded even by scholars who have advanced versions of the more limited Nationalist claim considered
in the text. See, e.g., Amar, Neo-Federalist View, supra note 7, at 212; Sager, supra note 87, at 30-36. A distinct but related
argument, advanced by Professor Theodore Eisenberg, begins with the premise that article III contemplated the performance by
the federal judiciary of functions that include checking the other two branches of government, achieving uniformity of decisions
in questions of national concern, and protecting individual rights. See Eisenberg, supra note 340, at 504-13. According to
Eisenberg, the framers anticipated that the Supreme Court’s appellate jurisdiction would be adequate to achieve these
constitutional ends and therefore contemplated that the need for lower federal courts should be subject to congressional judgment.
Today, however, the Supreme Court is no longer capable of providing a federal forum to hear the merits of every case involving a
federal question. Under these changed circumstances, Eisenberg argues, the existence of federal courts to pass on at least the most
important claims of federal rights have become a constitutional requirement. Despite its ingenuity, Eisenberg’s argument
generally has not been accepted by other scholars in the Nationalist tradition. Critics have objected that Eisenberg’s interpretation
would strip the provision of article III that authorizes Congress to create exceptions to the Supreme Court’s appellate jurisdiction
of virtually all its significance. See, e.g., Amar, Neo-Federalist View, supra note 7, at 216-18.
351
See Martin, 14 U.S. (1 Wheat.) at 328-39 (1816) (Story, J.); Amar, Neo-Federalist View, supra note 7, at 254-59; Clinton, supra
note 69, at 753; Sager, supra note 87, at 56.
352
As viewed from a Nationalist perspective, historical as well as textual evidence favors this interpretation. First, the framers
viewed the national judiciary as an essential component of a tripartite scheme of government. See, e.g., Amar, Neo-Federalist
View, supra note 7, at 231-38. If Congress were free to eviscerate the judicial power through its definitions of the bounds of
federal jurisdiction, a basic element of the constitutional structure would be undermined. Eisenberg, supra note 340, at 505, 507;
Sager, supra note 87, at 57-59. Second, the framers anticipated the possibility of state resistance to national authority, including
the danger that state courts, which were dependent on the state legislatures, might prove unreliable as guarantors of constitutional
norms. See, e.g., Amar, Neo-Federalist View, supra note 7, at 233-38, 248-51; Sager, supra note 87, at 43-57. Despite the
supremacy clause, it therefore was generally assumed at the Constitutional Convention that state court judgments should be
subject to Supreme Court review. See Sager, supra note 87, at 51. In light of this assumption, Nationalists argue that it would
make no sense to allow state courts the last word on questions of fundamental national importance.
353
See, e.g., Yakus v. United States, 321 U.S. 414, 429 (1944); Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850).
354
The Court has, however, occasionally upheld legislation that foreclosed jurisdiction by any federal court at all. See, e.g., Lauf v.
Shinner, 303 U.S. 323, 330 (1938); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).
355
See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 420 (1821); Castro, The First Congress’s Understanding of its Authority
Over the Federal Courts’ Jurisdiction, 26 B.C.L. Rev. 1101 (1985).
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356
For a brief and lucid summary of the Act’s provisions, see Bator, Judiciary Act of 1789, in 3 Encyclopedia of the American
Constitution 1075 (1986).
357
See Amar, Neo-Federalist View, supra note 7.
358
Article III, § 2 of the Constitution provides: ‘The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases
affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to
Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and
Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under
grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.’
359
See Amar, Neo-Federalist View, supra note 7, at 246-54.
360
The conformity between Amar’s theory of the Constitution’s requirements and the 1789 Judiciary Act is by no means perfect.
Under the Judiciary Act of 1789, either the Supreme Court or the lower federal courts were given jurisdiction in each of the three
constitutionally enumerated categories of jurisdiction defined by subject matter and with respect to which the judicial power of
the United States extends to ‘all Cases’—(i) cases arising under the Constitution, laws, and treaties of the United States; (ii) cases
‘affecting ambassadors, other public Ministers and Consults’; and (iii) cases of ‘admiralty and maritime jurisdiction.’ But in each
instance the jurisdictional grant contained apparent gaps.
First, in cases arising under the Constitution, laws, and treaties of the United States, the first Judiciary Act failed to provide
general federal question jurisdiction in the lower federal courts. There was Supreme Court appellate jurisdiction, which, of course,
would suffice to satisfy Amar’s thesis. But it was limited to cases in which a state court rejected a claim of federal right. Thus, in
cases arising under federal law in which federal claims were upheld in state court, federal judicial power was not vested in any
federal court. Although this omission embarrasses Amar’s thesis to some degree, Amar can argue that it is not inconsistent with
the spirit of his account of article III, because, viewed from a Nationalist perspective, the fundamental purpose of the
Constitution’s ‘arising under’ jurisdictional category was ‘not . . . uniformity but . . . protecting individual rights’ against
government violation. Amar, Neo-Federalist View, supra note 7, at 263.
Second, although § 13 of the Judiciary Act did provide exclusive Supreme Court jurisdiction in cases against ambassadors, the
state courts retained concurrent jurisdiction in suits by ambassadors. If an ambassador chose to sue in state court, there was no
removal and no Supreme Court review. Thus the federal judicial power could not reach all cases involving ambassadors. To this
objection, Amar can again respond that the purpose of the article III jurisdictional grant was essentially protective—to provide the
benefits of a federal forum to any ambassador who wished to claim it. Amar has no such response to the charge of a more minor
incompatibility between his theory and the 1789 Judiciary Act. The Act did not contemplate jurisdiction in all cases ‘affecting’
ambassadors—the linguistic formulation of article III—but only over those to which an ambassador was a party.
Finally, although the original Judiciary Act provided for federal admiralty jurisdiction, the statute allowed plaintiffs to couch
some cases that could have been framed in admiralty as common law actions and thus to litigate their claims in state court. The
state decisions were not then reviewable in the Supreme Court. See Amar, Neo-Federalist View, supra note 7, at 253-54.
361
See Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1306 (1970) (‘because the cases are
rare and the opinions are muddled,’ it is hard to predict how the Court would reason today). But see Bator, Congressional Power,
supra note 6, at 1031-32 (an ‘unbroken line of authoritative judicial precedent’ supports the claim that Congress enjoys plenary
power under article III, and no case can be cited to dispute the asserted power).
362
See Hart & Wechsler, supra note 4, at 383; Bator, Congressional Power, supra note 6, at 1034.
363
For a survey of this literature, see Gunther, supra note 335.
364
The term comes from Tribe, supra note 72.
365
See id. at 142-46.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
366
Ely, supra note 361, at 1306-08.
367
See, e.g., Tribe, supra note 72, at 141; Sager, supra note 87, at 74-79.
368
See, e.g., Gunther, supra note 335, at 919-21 (the motive of redrawing jurisdictional lines to express dissatifaction with judicial
decisions is not unconstitutional); see also Bator, Congressional Power, supra note 6, at 1035-37 (a motivational test would be
unadministrable and inconsistent with historical practice). A dispute about the relevance of congressional intent echoes through
the case law. Compare United States v. Klein, 80 U.S. (13 Wall.) 128, 145 (1871) (jurisdictional legislation may not be used as
means to achieve an unconstitutional purpose) with Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869) (expressing reluctance
to inquire into motivation of jurisdiction-stripping legislation).
369
See, e.g., Bator, Congressional Power, supra note 6, at 1034-35; Hart & Wechsler, supra note 4, at 384 & n.34; Gunther, supra
note 335, at 918.
370
28 U.S.C. § 1341 (1982). The statute, the Tax Injunction Act, was originally enacted in 1937.
371
28 U.S.C. § 1342 (1982). The statute, the Johnson Act, was initially enacted in 1934.
372
303 U.S. 323, 329-30 (1938).
373
Moreover, Lauf can now be explained on the basis that the underlying right that Congress set out to burden was a substantive due
process right that no longer is a ‘right’ at all. See Ely, supra note 361, at 1307 n.305; Eisenberg, supra note 340, at 529.
374
Compare Field, supra note 212 (arguing that federal interests are sufficient to justify the creation of federal common law by
federal courts whenever the federal interest is traceable to constitutional or statutory provisions) with Merrill, supra note 301, at
13-19 (arguing that creation of federal common law intrudes on state sovereignty interests and should be sharply limited).
375
28 U.S.C. § 1443 (1982). On the proper interpretation of this Reconstruction statute, compare Amsterdam, supra note 77 (arguing
that the Reconstruction Congress that first enacted the statute intended to create a very broad right of removal) with City of
Greenwood v. Peacock, 384 U.S. 808, 834 (1966) (narrowly construing the statute and asking rhetorically, ‘Has the historic
practice of holding state criminal trials in state courts . . . been such a failure that the relationship of state and federal courts
should now be revolutionized?’).
376
The doctrine takes its name from Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941). The best general survey remains Field,
Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U. Pa. L. Rev. 1071 (1974).
377
See generally C. Wright, supra note 240, § 52, at 308-19 (discussing other doctrines authorizing federal judicial abstention to
permit state court adjudication of matters of central state concern).
378
407 U.S. 225 (1972).
379
427 U.S. 445 (1976).
380
See supra note 304.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
381
See, e.g., Hilton v. Braunskill, 107 S. Ct. 2113 (1987) (Marshall, J., joined by Brennan and Blackmun, JJ., dissenting) (asserting
that, for reasons of comity and federalism, a federal district court should not withhold habeas corpus relief on the basis of state
interests more properly weighed by a state court); Fiss, supra note 13, at 1126.
382
See supra note 3.
383
The argument for rhetorical reform applies most powerfully to authoritative declarations of law—especially to majority opinions
of appellate courts. But the argument also extends, albeit in attenuated form, to concurring and dissenting opinions by individual
judges and to scholarly writing. These types of legal writing also help to shape the legal culture, and they ought to do so in ways
that do not exemplify or encourage narrowly partisan or one-sided modes of thought or expression.
To apply a uniform standard to majority opinions, judicial concurrences and dissents, and scholarly articles undoubtedly blurs
distinctions that might be relevant in other contexts. Scholarly writings, and even judicial concurring and dissenting opinions,
frequently have a purpose of provoking thought and shifting the lines of debate. Their aim might not be to identify each of the
complex factors relevant to the ‘best resolution’ of a legal problem; it may be, rather, to act as an advocate in a multilateral
intellectual debate that, like the adversary process, may be counted on to extract truth through a competition of provocatively
overstated claims. Even when measured against this standard, however, the Nationalist and Federalist models have long since lost
their provocative characters. Today the familiar pairing of Nationalist and Federalist arguments does nothing quite so much as
breed the cynical attitude that there is an argument to be made for every position and no rational basis for preferring one to
another. Although claims about the inherent bankruptcy of legal argument and the truth of legal nihilism are somewhat in vogue,
see Cornell, Taking Hegel Seriously: Reflections on Beyond Objectivism and Relativism, 7 Cardozo L. Rev. 139 (1985)
(discussing legal ‘nihilism’ and ‘irrationalism’), I assume that legal reasoning can be either good or bad, and that the measure of
goodness depends on the legal culture and on the standards of argument that the legal community maintains. The argument here is
for maintaining appropriate standards.
384
See, e.g., R. Dworkin, Law’s Empire (1986).
385
See supra note 20 and accompanying text.
386
See supra notes 235-37 and accompanying text.
387
See supra notes 230-34 and accompanying text.
388
See Fallon, supra note 24, at 1194-1209, 1237-68 (discussing the reciprocal influences among at least five kinds of factors in
constitutional argument).
389
See Amar, Sovereignty and Federalism, supra note 7, at 1426 n.9.
390
See Fallon, supra note 24, at 1200-09.
391
See, e.g., Mitchum v. Foster, 407 U.S. 225 (1972).
392
See, e.g., Allen v. McCurry, 449 U.S. 90, 103-05 (1980); Quern v. Jordan, 440 U.S. 332, 338-45 (1979).
393
See Allen, 449 U.S. at 96.
394
See, e.g., Nichol, supra note 68; Saltzburg, supra note 21.
395
See Amar, Sovereignty and Federalism, supra note 7, at 1426 n.9.
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396
This is not to deny that judicial decisions can and should remain ‘neutral’ in other senses of that complex term. See, e.g., Nelson,
supra note 23, at 1263-69.
397
Cf. Fallon, supra note 24, at 1247-48 (emphasizing the constraints on the influence of ‘value arguments’ in constitutional
interpretation).
398
Cf. id., at 1284-85 (discussing the obligations of a constitutional interpreter to reach normatively troublesome conclusions when
the relevant legal materials are sufficiently clear); Nelson, supra note 23, at 1257-59, 1292 (arguing that sometimes there will be
only one plausible historical account of the meaning of a constitutional provision, even to a ‘contextualist’ historian who believes
that the interests and value judgments of the historian inevitably permeate the search for historical truth).
399
A similar theme is interestingly developed in Werhan, supra note 269, at 500-06; see also Bator, supra note 2, at 621-22 (the
Court should seek ‘mediating solutions’ that ensure that state and federal courts ‘will continue to be partners in the task of
defining and enforcing federal constitutional principles’).
400
407 U.S. 225 (1972).
401
401 U.S. 37 (1971).
402
See supra notes 89-94 and accompanying text.
403
For a survey, see Taylor & Wills, supra note 92, at 1171-94.
404
See, e.g., Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204 (1980); R. Dworkin, A. Matter of
Principle, 38-57 (1985).
405
See Fallon, supra note 24, at 1254-58 (defending reliance on the framers’ intent as a relevant factor in constitutional
interpretation).
406
See R. Dworkin, supra note 384, at 319-31.
407
See Zeigler, supra note 76, at 1011-20.
408
See, e.g., Monroe v. Pape, 365 U.S. 167, 171-87 (1961); Mitchum, 407 U.S. at 231-42.
409
See Mitchum, 407 U.S. at 240-42.
410
This approach to legislative intent closely parallels that of Eisenberg, Section 1983: Doctrinal Foundations and an Empirical
Study, 67 Cornell L. Rev. 482, 485-86 (1982).
411
See Nichol, supra note 68, at 964-71, 1000-09 (analyzing the disruptive effects of the routine availability of federal injunctions
against state prosecutions under § 1983).
412
The revision was triggered by the Supreme Court’s decision in Toucey v. New York Life Ins. Co., 314 U.S. 118 (1941) (holding
that § 265 of the Judicial Code forbids a federal court from enjoining a proceeding in a state court on the ground that the claims
had been previously adjudicated by the federal courts).
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413
Although the statute expressly recognizes three types of exceptions, this is the only one for which most § 1983 actions would
qualify.
414
Toucey, 314 U.S. at 118.
415
It has been viewed as such even by commentators who, with respect to closely analogous issues, have adopted a strong Nationalist
line. See, e.g., Redish, supra note 91.
416
See Mitchum, 407 U.S. at 243.
417
The Court’s decisions have sometimes, though by no means consistently, reflected this assumption. See, e.g., Leither Minerals,
Inc. v. United States, 352 U.S. 220 (1957) (holding that the statute does not apply to suits for injunctions brought by the United
States).
418
401 U.S. 37, 53-54 (1971).
419
See, e.g., Zeigler, supra note 76, at 1017-25.
420
See, e.g., Younger, 401 U.S. at 43-54; Bator, supra note 2, at 622 n.49.
421
See Younger, 401 U.S. at 46-49.
422
See Fallon, supra note 118, at 60-71 (noting the relevance of congressional intent to the question when courts should award
equitable remedies).
423
If an ideological assumption underlies this conclusion, it would be this: questions of judicial federalism are sufficiently complex,
fact-specific, and dynamic so that it is typically undesirable for broad, rule-like solutions to be drawn from uncertain historical
materials.
424
The Supreme Court has recognized the relevance of the distinction between pending and nonpending state actions at least in some
contexts. Compare Samuels v. Mackell, 401 U.S. 66 (1971) (holding that Younger principles bar a federal declaratory judgment
action that could interfere with a pending state criminal proceeding) with Steffel v. Thompson, 415 U.S. 452 (1974) (holding that
Younger principles do not bar a federal declaratory judgment action that is brought prior to the filing of a state criminal action).
425
The Supreme Court seems to have accepted this proposition, even when ordering abstention in civil cases. See, e.g., Judice v.
Vail, 430 U.S. 327, 335 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-07 (1975).
426
Well prior to Younger, the Supreme Court had denied injunctions to plaintiffs seeking relief from threatened future prosecutions
where there was no showing of interference with future conduct. See Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 (1935);
Fenner v. Boykin, 271 U.S. 240 (1926).
427
See Laycock, supra note 101, 199-222.
428
See Steffel v. Thompson, 415 U.S. 452, 474-75 (1974).
429
See Shapiro, State Courts and Federal Declaratory Judgments, 74 NW. U.L. Rev. 759, 776 (1979).
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
430
See id. at 770-79.
431
See Laycock, supra note 101, at 219-22.
432
See id. at 199-219.
433
There could, however, be a res judicata or collateral esoppel effect if a federal injunction barring prosecution for future conduct
effectively resolved the dispositive isues in a pending state criminal prosecution for past conduct. See Shapiro, supra note 429, at
764. But cf. Steffel v. Thompson, 415 U.S. 452 (1974) (Rehnquist, J., concurring) (suggesting that a federal declaratory judgment
would lack preclusive effect in a subsequent state prosecution).
434
Shapiro, supra note 429, at 770-76.
435
See, e.g., Patsy v. Board of Regents, 457 U.S. 496, 500-12 (1982).
436
See Martinez v. California, 444 U.S. 277, 283 & n.7 (1980).
437
449 U.S. 90 (1980).
438
See Cover & Aleinikoff, supra note 28, at 1046-52.
439
See Bator, supra note 2, at 631-37.
440
The power of the federal courts to make such context-sensitive choices is by no means necessarily precluded by the full faith and
credit statute, 28 U.S.C. § 1738 (1982). One route to this conclusion, which was adopted by the dissenting opinion in Allen, is
through interpretation of § 1983 itself. See Allen, 449 U.S. at 107-15 (Blackmun, J. dissenting). Professor Burbank has suggested
another. See Burbank, Interjurisdictional Preclusion and Federal Common Law: Toward a General Approach, 70 Cornell L. Rev.
625 (1985). Noting that reflexive application of state preclusion rules to federal rights ‘risks the sacrifice of federal substantive
policies,’ id. at 627, Burbank argues that § 1738 does not interfere with federal judicial power to develop common law rules
governing the preclusion of federal rights. Id. at 638-40. Although a federal court should often choose to apply or incorporate
state law in answering preclusion questions, it should reject state preclusion law and apply an independent federal rule when state
preclusion law would frustrate federal policy. See id. Because state courts are required to apply valid federal common law rules,
the preclusive effect of a prior adjudication of federal rights would, under Burbank’s proposal, be determined under uniform
standards in federal and state courts alike. There would, accordingly, be no affront to the language of § 1738. Although § 1738
does require federal courts to give the same preclusive effect to a state court judgment as would a state court, the state courts’
preclusion doctrine may itself be shaped by federal common law. Id. at 639-40.
441
428 U.S. 465, 494-96 (1976).
442
Distinctive treatment of questions of law and questions of fact is now explicitly mandated by statute. See 28 U.S.C. § 2254(d)
(1982).
443
344 U.S. 443, 487 (1953).
444
Cf. Hart & Wechsler, supra note 4, at 1487 (‘The rule of Brown v. Allen is usually thought to rest primarily on the assumption
that constitutional rights cannot be adequately protected by direct Supreme Court review of state court judgments resulting in
detention.’).
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
445
See Brilmayer, State Forfeiture Rules and Federal Review of State Criminal Convictions, 49 U. Chi. L. Rev. 741, 770-74 (1982);
Meltzer, supra note 192, at 1135, 1182.
446
See Meltzer, supra note 192, at 1190-96.
447
See id. at 1186.
448
See Meltzer, supra note 192.
449
See id. at 1208-26.
450
See id. at 1211-26.
451
See id. at 1132-33, 1190-1202. The specific substantive standards that Meltzer proposes are rather modest in scope and
intrusiveness. Meltzer argues that the federal common law rules made binding on the states should be no more forgiving than the
parallel rules applicable in litigation occurring in the first instance in federal court. See id. at 1203, 1206. In addition, he generally
would enforce waivers that were knowingly made either by a client or her lawyer, see id. at 1216-18, and he would strive to
accommodate the state’s interest in securing the timely raising of rights that require either prompt enforcement or a repetition of a
criminal trial. See id. at 1223-25.
452
See id. at 1195.
453
See Amar, Sovereignty and Federalism, supra note 7, at 1466-92.
454
See, e.g., Fletcher, supra note 215, at 1038-88; Gibbons, supra note 20, at 1895-1941, 1998-2002; Shapiro, supra note 238, at 6679.
455
134 U.S. 1 (1890).
456
Not all of the supporting scholarship comes from writers generally associated with the Nationalist camp. See, e.g., Shapiro, supra
note 238, at 62.
457
Id. at 62. Professor Werhan develops similar arguments. See Werhan, supra note 269, at 469-505.
458
See, e.g., Tribe, supra note 233, at 695.
459
The argument that Pullman abstention should do much of the work currently assigned to the eleventh amendment is forcefully
and persuasively developed in Werhan, supra note 269, at 468-74, 485-505.
460
See supra notes 113-19 and accompanying text (discussing the appropriate scope and limitations of Younger abstention).
461
See Redish & Woods, supra note 286, at 81-108.
462
See, Amar, Sovereignty and Federalism, supra note 7, at 1504-06, 1509-10.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
463
80 U.S. (13 Wall.) 397 (1871).
464
Requirements that state courts not discriminate against federal claims are not controversial. See, e.g., Testa v. Katt, 330 U.S. 386,
392-94 (1947).
465
See, e.g., Douglas v. New York, N.H. & H.R.R., 279 U.S. 377, 388 (1929).
466
469 U.S. 528 (1985).
467
Id. at 556.
468
See Van Alstyne, Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea, 1987 Duke L.J. 769,
788-89.
469
See Amar, Neo-Federalist view, supra note 7, at 254-59.
470
Saltzburg, supra note 21, at 368.
471
See id. at 368, 382; Redish, supra note 91, at 71-72.
472
See R. Dworkin, supra note 404, at 34-71.
473
See, e.g., Chayes, Justice, supra note 84, at 1029-42; Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 574 (1985)
(arguing that courts have traditionally and pervasively assumed a discretionary power to decline jurisdiction granted to them and
that, when ‘dealing with an organic law like the charter of federal court jurisdiction, courts may . . . seek to ‘creat[e] the best rule
of law in a situation in which [the] statute is said to govern’’) (quoting G. Calabresi, A Common Law for the Age of Statutes 215
(1982)).
474
See Chayes, Justice, supra note 84, at 1029-39.
475
See G. Calabresi, supra note 473, at 163.
476
See id. at 213-14 n.29.
477
See, e.g., Brest, supra note 404, at 209-17.
478
See, e.g., Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1524-54 (1987).
479
Cf. G. Calabresi, supra note 473, at 5-6, 163-66 (arguing that old statutes frequently become outdated or dysfunctional and that
courts should be able to revise or nullify them when this occurs).
480
See Eskridge, supra note 478, at 1497-1538.
481
See, e.g., Kelman, Trashing, 36 Stan. L. Rev. 293, 319-21 & n.65 (1984) (‘[T]he course on federal courts is best seen as the purest
of contentless legalist rituals, in which all ‘policy’ arguments are grounded in funhouse mirror versions of Competence and
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Federalism whether they can conceivably be brought to bear on particular cases or not.’).
End of Document
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
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—
2002
Law Review
—
23. DEATH-INNOCENCE AND THE LAW OF HABEAS CORPUS, 56 Alb. L. 1992
Rev. 225, 272
Law Review
—
Law Review
—
18. PRINCIPLED MINIMALISM: RESTRIKING THE BALANCE BETWEEN
JUDICIAL MINIMALISM AND NEUTRAL PRINCIPLES, 90 Va. L. Rev. 1753,
1847+
Scholars who grapple with the Rehnquist Court’s activism understandably have
built upon the work of Alexander Bickel, who grappled with the Warren Court’s
activism several decades...
19. REASSESSING THE ALLOCATION OF JUDICIAL BUSINESS
BETWEEN STATE AND FEDERAL COURTS: FEDERAL JURISDICTION
AND “THE MARTIAN CHRONICLES”, 78 Va. L. Rev. 1769, 1832+
AS is true in most areas of the law, modern standards of federal jurisdiction did
not result from a single, collective attempt to fashion a pervasive and coherent
structure but,...
20. HISTORY, JURISDICTION, AND THE FEDERAL COURTS: CHANGING
CONTEXTS, SELECTIVE MEMORIES, AND LIMITED IMAGINATION, 98 W.
Va. L. Rev. 171, 266+
I. Introduction․ 172 II. The Perennial Topic: Federal Judicial Authority․ 176 III.
The Challenges of Description․ 187 A. A Four-Tiered House with Many AddOns․ 190 B. The Calder...
21. IS THERE A LAW OF FEDERAL COURTS?, 96 W. Va. L. Rev. 147,
167+
I. Introduction․ 147 II. Constitutional Revolutions․ 148 III. Changing the
Landscape in Federal Courts Law․ 151 IV. The Agendas of Federal Courts
Law․ 157 V. The Nature of Federal...
22. JUDICIAL REVIEW AND GLOBAL FEDERALISM, 54 Admin. L. Rev.
491, 511
L1-4,T4Introduction 491 I. L3-4,T4The Effect of Supranational Judicial Review
on National Sovereignty 494 A. Judicial Review in E.U. Centralization․ 495 B.
Shifting Sovereignty in...
The legal space between a sentence of death and the execution chamber is
occupied by an intricate network of procedural rules. On average, it currently
takes between six and...
24. ELEVENTH AMENDMENT IMMUNITY OF A STATE IN BANKRUPTCY
CASES: A NEW JURISPRUDENTIAL APPROACH, 7 Am. Bankr. Inst. L.
Rev. 269, 334
1999
INTRODUCTION․ 270 A. The Problem․ 270 B. The Thesis․ 271 C. The
Intersection of the Eleventh Amendment and Bankruptcy Jurisdiction․ 273 D.
Petitions for Certiorari․ 277 I....
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Depth
1993
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—
1997
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1993
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2005
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1995
Law Review
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1991
Law Review
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31. ABSTENTION AND THE CONSTITUTIONAL LIMITS OF THE JUDICIAL 1991
POWER OF THE UNITED STATES, 1991 B.Y.U. L. Rev. 811, 857
Law Review
—
Law Review
—
25. CONSIDERING THE STATE LAW CONSEQUENCES OF AN
ALLEGEDLY IMPROPER BANKRUPTCY FILING, 67 Am. Bankr. L.J. 325,
341
In Gonzales v. Parks the Court of Appeals for the Ninth Circuit held that state
courts did not have subject matter jurisdiction to hear a claim that a particular
bankruptcy filing...
26. CULPABILITY, MISTAKE, AND OFFICIAL INTERPRETATIONS OF
LAW, 25 Am. J. Crim. L. 1, 78
I. Introduction․ 2 II. The Common Law of Entrapment by Estoppel․ 5
Case Law, Commentary, and Model Penal Code․ 6
1. Cases․ 6
Commentary and Model Penal Code․ 13...
A.
2.
27. QUALIFIED IMMUNITY IN SECTION 1983 CASES AND THE ROLE OF
STATE DECISIONAL LAW, 35 Ariz. L. Rev. 621, 661
Persons bringing damage actions, pursuant to 42 U.S.C. § 1983, against state
and local officials for the violation of federal constitutional rights are frequently
barred from...
28. THE CONSTITUTIONAL PUZZLE OF HABEAS CORPUS, 46 B.C. L.
Rev. 251, 291
Abstract: The U.S. Constitution has always protected habeas corpus. Yet when
we consider the Suspension Clause together with three other constitutional
principles, we find a...
29. THE DOMESTIC RELATIONS EXCEPTION TO FEDERAL
JURISDICTION: RETHINKING AN UNSETTLED FEDERAL COURTS
DOCTRINE, 36 B.C. L. Rev. 669, 723
In 1859, Supreme Court dicta disclaimed federal court jurisdiction over “the
subject of divorce, or alimony.” This pronouncement, unsupported by either
precedent or authority,...
30. PRAGMATISM WITHOUT POLITICS-A HALF MEASURE OF
AUTHORITY FOR JURISDICTIONAL COMMON LAW, 1991 B.Y.U. L. Rev.
767, 810
My paper for the symposium considers the propriety of independent lawmaking
by federal courts about their own power. There has been much debate.
Figuratively, most participants...
The federal courts have by now firmly established a variety of doctrines by
which they decline to exercise jurisdiction vested in them by Congress. The
constitutional validity of...
32. DEALING WITH YOUNGER ABSTENTION AS A PART OF FEDERAL
COURTS REFORM-THE ROLE OF THE VANISHING PROPOSAL, 1991
B.Y.U. L. Rev. 987, 1004+
1991
Should Congress take action to deal with Younger abstention, perhaps by
altering the doctrine, perhaps by abolishing it? That intriguing set of
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Type
Depth
questions is raised by President...
Law Review
—
2008
Law Review
—
1999
Law Review
—
36. JUDICIAL FEDERALISM AND THE ADMINISTRATIVE STATES, 87 Cal. 1999
L. Rev. 613, 702
Law Review
—
Law Review
—
2005
Law Review
—
2010
Law Review
—
2004
Law Review
—
33. ALTERED STATES: THE ARTICLE I COMMERCE POWER AND THE
1991
ELEVENTH AMENDMENT IN PENNSYLVANIA v. UNION GAS, 56 Brook. L.
Rev. 1413, 1442
The enduring debate within the Supreme Court and among scholars about the
“proper” constitutional relationship between the article I commerce power and
the eleventh amendment was...
34. REPRESSING ERIE’S MYTH, 96 Cal. L. Rev. 595, 660
Some cases are not just cases; they are icons. Built of more than ordinary facts
and holdings, at least three decisions stand as cultural pillars of our legal
architecture: Marbury...
35. POLYPHONIC FEDERALISM: STATE CONSTITUTIONS IN THE
FEDERAL COURTS, 87 Cal. L. Rev. 1409, 1468
Introduction․ 1411 I. Federal Courts Doctrine and State Constitutions․ 1418
A. Siler: Avoiding Federal Constitutional Claims․ 1418 B. State Forum for
Certain State Issues․ 1418...
Introduction․ 616 I. Federal Courts and the Pre-Administrative States․ 620
A. Federal Judicial Review of Pre-Modern “Agencies”: Scrutinizing Local
Government Power․ 620
1....
37. COEUR D’ALENE AND EXISTENTIAL CATEGORIES FOR SOVEREIGN 1998
IMMUNITY CASES, 86 Cal. L. Rev. 879, 917
Individuals may sue state officers in federal court according to a simple rule
most closely associated with Ex Parte Young and Jordan: plaintiffs may sue for
prospective relief...
38. FEDERALISM’S FALLACY: THE EARLY TRADITION OF FEDERAL
FAMILY LAW AND THE INVENTION OF STATES’ RIGHTS, 26 Cardozo L.
Rev. 1761, 1865
Introduction․ 1762 I. Making, Breaking, and Ignoring Federalism Rules․ 1769
II. The Inherited Tradition of Domestic Relations Law․ 1777 III. Domestic
Relations in the National...
39. REMAKING THE MOLD: PURSUING FAILURE-TO-PROTECT CLAIMS
UNDER STATE CONSTITUTIONS VIA ANALOGOUS BIVENS ACTIONS,
110 Colum. L. Rev. 1294, 1347
If a state child-welfare agency does not remove a child from his father’s
custody, despite documented evidence of abuse and its exclusive ability to do
so, is it partly responsible...
40. UNDER THE LAW OF FEDERAL JURISDICTION: ALLOCATING
CASES BETWEEN FEDERAL AND STATE COURTS, 104 Colum. L. Rev.
1211, 1279
One of the primary functions of the law of federal jurisdiction is to allocate
cases between state and federal courts. Commentators agree that the law of
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
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Date
Type
Depth
allocation is troubled,...
Law Review
—
1993
Law Review
—
43. CHALLENGING THE HART AND WECHSLER PARADIGM, 27 Conn. L. 1995
Rev. 833, 847
Law Review
—
Law Review
—
1998
Law Review
—
1997
Law Review
—
1995
Law Review
—
48. BUSTING THE HART & WECHSLER PARADIGM, 11 Const. Comment. 1994
557, 586+
Law Review
—
41. APPLYING THE SUSPENSION CLAUSE TO IMMIGRATION CASES, 98 1998
Colum. L. Rev. 1068, 1102
Notwithstanding “plenary power” and “public rights” doctrines that have
traditionally left aliens with less protection against administrative detention than
American citizens...
42. SOME CONFUSIONS ABOUT DUE PROCESS, JUDICIAL REVIEW,
AND CONSTITUTIONAL REMEDIES, 93 Colum. L. Rev. 309, 373
Due process doctrine subsists in confusion. The disarray partly reflects the
terrain that due process covers. The Due Process Clause generates rights,
among other things, to...
In 1932, a prescient Herbert Wechsler noted that Felix Frankfurter’s new
Federal Courts casebook “conditions the method which an instructor can
adopt, as surely as it does the...
44. TRANSCENDING CONVENTIONAL SUPREMACY: A
1992
RECONSTRUCTION OF THE SUPREMACY CLAUSE, 24 Conn. L. Rev. 829,
891
Judging from the numbers alone, the Supremacy Clause has become a
primary battlefield for demarcating the boundaries of the federal regulatory
state. Over the past four Terms,...
45. COEUR D’ALENE, FEDERAL COURTS AND THE SUPREMACY OF
FEDERAL LAW: THE COMPETING PARADIGMS OF CHIEF JUSTICES
MARSHALL AND REHNQUIST, 15 Const. Comment. 301, 324+
In a decade that is witnessing a resurgence of law’s development and
application to government entities around the world, in newly emerging
democracies and in multi-national...
46. WHO’S AFRAID OF HENRY HART?, 14 Const. Comment. 175, 207+
No law book has enjoyed greater acclaim from distinguished commentators
over a sustained period than has Hart & Wechsler’s The Federal Courts and
the Federal System. Indeed, the...
47. COMPARING FEDERAL COURTS “PARADIGMS”, 12 Const.
Comment. 3, 19
In a recent article, Professor Michael Wells attacks what I had characterized as
“the Hart and Wechsler paradigm” for analysis of Federal Courts issues. To
summarize crudely, Wells...
Federal Courts law was once a vibrant area of scholarship and an essential
course for intellectually ambitious students. Now its prestige has diminished so
much that scholars...
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Depth
2008
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2003
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1996
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1995
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2001
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1998
Law Review
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55. CHISHOLM, THE ELEVENTH AMENDMENT, AND SOVEREIGN
2001
IMMUNITY: ON ALDEN’S RETURN TO CONFEDERATION PRINCIPLES, 28
Fla. St. U. L. Rev. 605, 648
Law Review
—
Law Review
—
Law Review
—
49. STATE COURTS UNBOUND, 93 Cornell L. Rev. 501, 554
We may not think that state courts disobey binding Supreme Court precedent,
but occasionally state courts do. In a number of important cases, state courts
have actively defied...
50. EXAMINING THE POWER OF FEDERAL COURTS TO CERTIFY
QUESTIONS OF STATE LAW, 88 Cornell L. Rev. 1672, 1749+
Attracted by the perception that certification accords with norms of federalism
and comity, federal courts have applied certification without serious
examination of its...
51. THE INTEGRATION OF STATE PRIVATE LAW IN FEDERALIZED
FIELDS OF LAW: THE CASE FOR FEDERAL COMMON LAW, 74 Denv. U.
L. Rev. 207, 264
I. Introduction․ 208 II. Federal Preemption․ 214 A. The Relevance of
Background Assumptions to Preemption Jurisprudence․ 214 B. Federal
Preemption: From Conflict to Field...
52. PARITY REVISITED: THE USES OF A JUDICIAL FORUM OF
EXCELLENCE, 44 DePaul L. Rev. 797, 810
Longer ago than I wish to acknowledge, I urged judges and legislators to
consider qualitative differences between state and federal systems in drawing
jurisdictional lines in...
53. NARRATIVES OF FEDERALISM: OF CONTINUITIES AND
COMPARATIVE CONSTITUTIONAL EXPERIENCE, 51 Duke L.J. 223, 287
The dramatic title of the conference for which this Essay was written raises the
question, what is the Constitution “in exile” from? The “Constitution in Exile”
might refer to an...
54. NAKED POLITICS, FEDERAL COURTS LAW, AND THE CANON OF
ACCEPTABLE ARGUMENTS, 47 Emory L.J. 89, 162+
When lawyers debate Federal Courts issues, they rely on a familiar cluster of
policy arguments. Much is made, for example, of the need to respect
institutional competence, to...
I. L2-3,T3Introduction 605 II. L2-3,T3The Chisholm Decision 606 A. Doing
Justice․ 607 B. Becoming Part of the Union․ 612 III. L2-3,T3The Passage of
the Eleventh Amendment 617 A....
56. FIGHTING FEDERALISM WITH FEDERALISM: IF IT’S NOT JUST A
2006
BATTLE BETWEEN FEDERALISTS AND NATIONALISTS, WHAT IS IT?, 74
Fordham L. Rev. 2081, 2121
There are many ways to promote federalism. The most recent federalism
revival, for example, protects states differently than earlier efforts by the United
States Supreme Court to...
57. TYING THE BRAID OF SECOND-PARENT ADOPTIONS-WHERE DUE
2005
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Title
Date
Type
Depth
PROCESS MEETS EQUAL PROTECTION, 74 Fordham L. Rev. 1425, 1473
Victoria and Laura, same-sex partners, both held legal, parental custody of
each other’s biological children, Maya and Tessa. The parental relationships of
Victoria and Laura had...
1998
Law Review
—
59. HANS, AYERS, AND ELEVENTH AMENDMENT JURISPRUDENCE: ON 2001
JUSTIFICATION, RATIONALIZATION, AND SOVEREIGN IMMUNITY, 10
Geo. Mason L. Rev. 251, 291
Law Review
—
2009
Law Review
—
2003
Law Review
—
1990
Law Review
—
2004
Law Review
—
1994
Law Review
—
58. STATUTORY INTERPRETATION OF FEDERAL JURISDICTIONAL
STATUTES: JURISDICTION OF THE PRIVATE RIGHT OF ACTION UNDER
THE TCPA, 66 Fordham L. Rev. 1895, 1937
[Courts’] use of legislative history [is] the equivalent of entering a crowded
cocktail party and looking over the heads of the guests for one’s friends. From
1960 to 1995, the...
Over the past several years, the Supreme Court has expanded the breadth of
the Eleventh Amendment protections accorded to the states, making it
increasingly difficult for a citizen...
60. SPLITTING THE ATOM OF PROPERTY: RIGHTS EXPERIMENTALISM
AS OBLIGATION TO FUTURE GENERATIONS, 77 Geo. Wash. L. Rev.
1411, 1477
The Framers split the atom of sovereignty. It was the genius of their idea that
our citizens would have two political capacities, one state and one federal,
each protected from...
61. THE SUPREMACY CLAUSE AS A CONSTRAINT ON FEDERAL
POWER, 71 Geo. Wash. L. Rev. 91, 130
It is . . . not entirely unworthy of observation, that in declaring what shall be the
supreme law of the land, the constitution itself is first mentioned; and not the
laws of the...
62. WHEN FEDERALISM AND SEPARATION OF POWERS COLLIDERETHINKING YOUNGER ABSTENTION, 59 Geo. Wash. L. Rev. 114, 156
What would the Rehnquist Court do if faced with a conflict between its vision of
federalism and its commitment to the separation of powers? A case can be
made that the abstention...
63. FEDERAL COURTS, STATE COURTS AND CIVIL RIGHTS: JUDICIAL
POWER AND POLITICS REVIEW OF DANIEL R. PINELLO, GAY RIGHTS
AND AMERICAN LAW, CAMBRIDGE UNIVERSITY PRESS, 2003, PP. 349.
$23.00 (HARDCOVER), 92 Geo. L.J. 941, 980
With Lawrence v. Texas, in which the Supreme Court struck down a Texas law
prohibiting same-sex sexual acts, and Goodridge v. Department of Public
Health, in which the...
64. Empiricism, Gender, and Legal Pedagogy: An Experiment in a
Federal Courts Seminar at Georgetown University Law Center, 83 Geo.
L.J. 461, 524
Over the last decade, the organized bench and bar have drawn on the insights
of feminist legal theory and sociolegal research techniques to create a
fascinating movement. The...
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Type
Depth
1994
Law Review
—
66. FELIX FRANKFURTER: THE ARCHITECT OF “OUR FEDERALISM”, 27 1993
Ga. L. Rev. 697, 788
Law Review
—
2000
Law Review
—
1996
Law Review
—
2000
Law Review
—
70. PARITY REVISITED: AN EMPIRICAL COMPARISON OF STATE AND
1999
LOWER FEDERAL COURT INTERPRETATIONS OF NOLLAN V.
CALIFORNIA COASTAL COMMISSION, 23 Harv. J.L. & Pub. Pol’y 233, 293
Law Review
—
2009
Law Review
—
72. CONSTITUTIONAL LAW - STATE SOVEREIGN IMMUNITY - FIFTH
2004
CIRCUIT BARS CHALLENGE TO STATUTES’ CONSTITUTIONALITY IN
INTERLOCUTORY APPEAL REVIEWING DENIAL OF STATE SOVEREIGN
IMMUNITY. - MCCARTHY EX REL. TRAVIS V. HAWKINS, 381, 118 Harv. L.
Rev. 786, 793
Law Review
—
Law Review
—
65. AN ASSESSMENT OF PAST EXTRAMURAL REFORMS OF THE U.S.
COURTS OF APPEALS, 28 Ga. L. Rev. 863, 912
My nomenclature needs explanation by way of introduction. This Article will
evaluate reforms designated here ‘extramural‘ or ‘structural.‘ Although the
distinction between...
Until we have penetrating studies of the influence of [Supreme Court Justices],
we shall not have an adequate history of the Supreme Court, and, therefore, of
the United States....
67. THE SUPREME COURT’S “NEW” FEDERALISM: AN ANTI-RIGHTS
AGENDA?, 16 Ga. St. U. L. Rev. 517, 572
In recent years, the United States Supreme Court has developed a “new”
federalism doctrine. The Court’s “new” federalism seeks to elevate the power
of state governments over that...
68. POPULAR JUSTICE: STATE JUDICIAL ELECTIONS AND
PROCEDURAL DUE PROCESS, 31 Harv. C.R.-C.L. L. Rev. 187, 221
Popular election and retention of state judges have been integral components
of the American legal and political systems since the early nineteenth century.
Despite the...
69. ALDEN TRILOGY: PRAISE AND PROTEST, 23 Harv. J.L. & Pub. Pol’y
323, 409+
I. Introduction․ 324 II. The New Federalism--A Creature of the 1990s․ 328 III.
The Alden Trilogy: The Holdings, Interpretive Frameworks, and Unresolved
Questions․ 336 A. Alden v....
I. Introduction․ 234 II. Jurisdictional Foundations․ 239 A. Constitutional
Role of the State Judiciaries in the Adjudication of Federal Questions․ 239
B. State Court...
71. FEDERALISM AND THE GENERALITY PROBLEM IN
CONSTITUTIONAL INTERPRETATION, 122 Harv. L. Rev. 2003, 2069
Ever since the concept of state sovereign immunity entered the constitutional
realm, courts have struggled to balance the “sovereign interests of the State”
with “the supremacy of...
73. EX PARTE YOUNG DOCTRINE., 111 Harv. L. Rev. 269, 279
1997
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Title
Date
Type
Depth
Since the time of Edward the First, the common law has conferred immunity
from suit on the sovereign. In contrast, officers and agents of the Crown were
accountable in both law...
74. NEW LAW, NON-RETROACTIVITY, AND CONSTITUTIONAL
REMEDIES, 104 Harv. L. Rev. 1731, 1833
1991
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1990
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1990
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2003
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1990
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1989
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1998
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2004
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Introduction I. The Supreme Court’s Treatment of New Law as a Basis for
Denying Relief in Constitutional Cases A. Retroactivity in Criminal Cases 1.
The Warren Court’s Approach...
75. UNCONSTITUTIONAL STATE TAXES - FEDERAL STANDARD FOR
REMEDIES IN STATE COURT, 104 Harv. L. Rev. 188, 198
In declaring state taxes unconstitutional, the Supreme Court’s practice has
been to defer to state-court determinations of the appropriate remedy. This
deference has left the...
76. CLARIFYING COMITY: STATE COURT JURISDICTION AND SECTION
1983 STATE TAX CHALLENGES, 103 Harv. L. Rev. 1888, 1908
State taxes are frequently challenged as violating the commerce clause, the
establishment clause, the equal protection clause, or other provisions of the
federal Constitution. The...
77. CONSTRICTING REMEDIES: THE REHNQUIST JUDICIARY,
CONGRESS, AND FEDERAL POWER, 78 Ind. L.J. 223, 310
I. L2-4,T4From the Rehnquist Court to the Rehnquist Judiciary 224 A. L34,T4Developing New Norms 224․ B. L3-4,T4Sources of Judicial Authority,
Exercised Individually and...
78. SYMMETRIES OF ACCESS IN CIVIL RIGHTS LITIGATION: POLITICS,
PRAGMATISM AND WILL, 66 Ind. L.J. 1, 52
Introduction I. The Will Case II. Will as a Political Decision A. Three
Nonpragmatist Approaches to Interpreting Section 1983 1. Intentionalism 2.
Plain Meaning and Political...
79. LETTING GO OF THE ELEVENTH AMENDMENT, 64 Ind. L.J. 601, 615
In Pennsylvania v. Union Gas Co., the Supreme Court must decide whether a
private party can claim damages against a state in federal superfund litigation.
The case involves some...
80. PRINTZ AND TESTA: THE INFRASTRUCTURE OF FEDERAL
SUPREMACY, 32 Ind. L. Rev. 111, 140+
Professor Martin Redish and Steven Sklaver make an elegant argument that
state courts are competent to adjudicate federal claims not because they are in
“parity” with federal...
81. CONSTITUTIONAL REMEDIES FOR STATUTORY VIOLATIONS, 89
Iowa L. Rev. 355, 441
I. Introduction․ 357 II. Two Private Right of Action Doctrines․ 364
Preemption Cases and Violation Cases․ 365 B. Other Possible
Explanations․ 369 III. Federal...
A.
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Title
Date
Type
Depth
1994
Law Review
—
83. AMERICAN AND AUSTRALIAN CONSTITUTIONS: CONTINUING
1997
ADVENTURES IN COMPARATIVE CONSTITUTIONAL LAW, 30 J. Marshall
L. Rev. 627, 698
Law Review
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2001
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1995
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1993
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1989
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1992
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1991
Law Review
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82. FAMILY LAW, FEDERALISM, AND THE FEDERAL COURTS, 79 Iowa
L. Rev. 1073, 1126
Whether family law belongs in the federal courts under diversity jurisdiction is
somewhat contested within federal court jurisprudence. Although neither the
Constitution nor the...
The chief virtue of a comparative study . . . is [not] . . . in generalisations that
emerge from it, but in the deeper insight that it offers [all participants] into their
own...
84. ENFORCING FEDERAL CIVIL RIGHTS AGAINST PUBLIC ENTITIES
AFTER GARRETT, 28 J.C. & U.L. 41, 96
[T]he [C]ourt’s doctrinal realignment of the federal-state structure is of little
interest to most Americans. It recalls memories of dreary high school civics
classes, and for the...
85. MULTIPLE SOVEREIGNTIES: INDIAN TRIBES, STATES, AND THE
FEDERAL GOVERNMENT, 79 Judicature 118, 125
Although often unrecognized, three entities within the territory that constitutes
the United States--Indian tribes, states, and the federal government--have
forms of sovereignty....
86. NO FINAL VICTORIES: THE INCOMPLETENESS OF EQUITY’S
TRIUMPH IN FEDERAL PUBLIC LAW, 56-SUM Law & Contemp. Probs.
105, 121
If Professor Laycock senses a “segregationist spirit” in some attitudes about
keeping equity distinct and intact, I hear a note of triumphalism about the scope
and approaches of...
87. FEDERALISM’S FULL CIRCLE: RELIEF FOR EDUCATION
DISCRIMINATION, 35 Loy. L. Rev. 13, 110
Today’s unsettled federalism doctrine dictates a shift in view and strategy
regarding the effective remedial approach to current social and political
challenges. Recent Supreme...
88. BARGAINING IN THE DARK: THE NORMATIVE INCOHERENCE OF
LAWYER DISPUTE BARGAINING ROLE, 51 Md. L. Rev. 1, 104
INTRODUCTION I. BARGAINING AS STRATEGIC INTERACTION II. THE
PRACTICAL NEED TO COOPERATE A. Cordial Bargaining B. Principled
Bargaining C. Problem-Solving Bargaining D. Coordinated...
89. WANTED: A FEDERAL STANDARD FOR EVALUATING THE
ADEQUATE STATE FORUM, 50 Md. L. Rev. 131, 212
C1-3Table of Contents Introduction․ 132 I. The Heightened Scrutiny Model:
Adequate State Grounds․ 135 II. Negligible Scrutiny: A Pending State
Proceeding as an Adequate Forum․ ...
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Title
90. ENVISIONING A GLOBAL LEGAL CULTURE, 25 Mich. J. Int’l L. 1, 76
Date
Type
Depth
2003
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2010
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—
2002
Law Review
—
1989
Law Review
—
2007
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—
2001
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—
1993
Law Review
—
2010
Law Review
—
2008
Law Review
—
“To truly know a man, you must walk a mile in his shoes.” Introduction․ 2 I.
Emerging Global Institutions and the Forces That Will Shape Their Laws․ 6
A. Present and Future...
91. THE TAX INJUNCTION ACT AND FEDERAL JURISDICTION:
REASONING FROM THE UNDERLYING GOALS OF FEDERALISM AND
COMITY, 108 Mich. L. Rev. 795, 821
States routinely contest federal jurisdiction when a state tax is challenged in
federal district court on federal constitutional grounds. States argue that the
Tax Injunction Act,...
92. SUSPECTING THE STATES: SUPREME COURT REVIEW OF STATECOURT STATE-LAW JUDGMENTS, 101 Mich. L. Rev. 80, 178+
At the Supreme Court these days, it is unfashionable to second-guess states’
fealty to federal law without real proof that they are ignoring it. As the Court
declared in Alden v....
93. A REVISIONIST THEORY OF ABSTENTION, 88 Mich. L. Rev. 530, 602
There is a widespread perception that the forum of litigation may be as
outcome-determinative as the underlying merits. This perception accounts for
the importance of the...
94. STATE HABEAS RELIEF FOR FEDERAL EXTRAJUDICIAL
DETAINEES, 92 Minn. L. Rev. 265, 322
I. The Rise and Fall of State Habeas Relief for Federal Prisoners․ 270 A.
From the Nation’s Birth to the Wisconsin Rebellion: The Ascendancy of State
Courts’ Powers․ 270 B....
95. THE STRUCTURE OF JUDICIAL OPINIONS, 86 Minn. L. Rev. 447, 496
A judicial opinion tells many stories and speaks with many voices. It is less a
single and anonymous utterance of the law than a condensed quarrel, less a
line than a knot. It is...
96. REMOVAL, REMANDS, AND REFORMING FEDERAL APPELLATE
REVIEW, 58 Mo. L. Rev. 287, 333
On January 13, 1992, the United States Supreme Court denied certiorari to a
decision of the Fifth Circuit in Castillo v. Shell Oil Co., over the dissent of
Justice White. About...
97. DID THE MADISONIAN COMPROMISE SURVIVE DETENTION AT
GUANTÁNAMO?, 85 N.Y.U. L. Rev. 535, 586
This Essay takes up the Court’s less-heralded second holding in Boumediene
v. Bush--that a federal habeas court must have the institutional capacity to find
facts, which in...
98. THE UNCONSCIONABILITY GAME: STRATEGIC JUDGING AND THE
EVOLUTION OF FEDERAL ARBITRATION LAW, 83 N.Y.U. L. Rev. 1420,
1490
This Article uses recent developments in the enforcement of arbitration
agreements to illustrate one way in which strategic dynamics can drive
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Title
Date
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doctrinal change. In a fairly short...
99. FINALITY OF JUDGMENTS IN CLASS ACTIONS: A COMMENT ON
EPSTEIN V. MCA, INC., 73 N.Y.U. L. Rev. 1149, 1166
1998
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In this Response, Professor Allen contends that in arguing that plaintiffs in
state court proceedings are unable to fairly and effectively bargain for the
release of exclusively...
100. “NATURALLY” WITHOUT GENDER: WOMEN, JURISDICTION, AND
THE FEDERAL COURTS, 66 N.Y.U. L. Rev. 1682, 1767
For many years, women who work (or who have tried to work) with law and in
courts have understood that their gender was relevant to that work. However,
until recently, those who...
101. MORE THAN “SLIGHTLY RETRO:” THE REHNQUIST COURT’S
ROUT OF HABEAS CORPUS JURISDICTION IN TEAGUE v. LANF, 18
N.Y.U. Rev. L. & Soc. Change 537, 635
A. The Court’s New Rule Defining New Rules 1. The Evolution of the Court’s
New Rule on New Rules 2. The Court’s New Rule on New Rules Applied:
Three Paradigmatic Situations B. A...
102. THE IDEOLOGIES OF FORUM SHOPPING-WHY DOESN’T A
CONSERVATIVE COURT PROTECT DEFENDANTS?, 71 N.C. L. Rev. 649,
720
In this Article, Professor George Brown identifies a seeming inconsistency in
the Supreme Court’s treatment of federal-state private law forum shopping and
state-state private law...
103. FIFTY YEARS (MORE OR LESS) OF “FEDERAL COURTS”: AN
ANNIVERSARY REVIEW, 77 Notre Dame L. Rev. 1083, 1120
For some time now, legal scholars have treated doctrinal analysis in the field of
Federal Courts as taking place within the “Hart & Wechsler” paradigm. Named
after the casebook...
104. UNCONSTITUTIONAL POLITICS, 76 Notre Dame L. Rev. 519, 641
Introduction․ 520 I. The Dilemma Posed․ 527 A. New York v. United
States․ 528 B. The Districting Requirement․ 530 C. Initial Implications․
531 II. New York v. United States...
105. A DIALOGIC DEFENSE OF ALDEN, 75 Notre Dame L. Rev. 1161,
1182
I find myself in the odd position of arguing that Alden v. Maine is right, or at
least not wrong. Do not misunderstand--I do not like the result in Alden any
more than the next...
106. ELEVENTH AMENDMENT SCHIZOPHRENIA, 75 Notre Dame L. Rev.
859, 918
Running through the opinions of the Justices who comprise the current
Supreme Court majority on Eleventh Amendment immunity have been two
distinct and conflicting analytical...
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1999
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108. INTERDISCIPLINARY ASPECTS OF SEMINOLE TRIBE V. FLORIDA: 1997
STATE SOVEREIGN IMMUNITY IN THE CONTEXT OF ANTITRUST,
BANKRUPTCY, CIVIL RIGHTS AND ENVIRONMENTAL LAW Introduction:
Seminole Tribe and the Creeping Reemergence of “D, 23 Ohio N.U. L.
Rev. 1393, 1401
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1992
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1996
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112. THE FEDERALIZATION OF DOMESTIC VIOLENCE: AN EXERCISE IN 1996
COOPERATIVE FEDERALISM OR A MISALLOCATION OF FEDERAL
JUDICIAL RESOURCES?, 48 Rutgers L. Rev. 1139, 1191
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1997
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1995
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107. JUDICIAL FEDERALISM IN THE TRENCHES: THE ROOKERFELDMAN DOCTRINE IN ACTION, 74 Notre Dame L. Rev. 1085, 1128
One little-noticed side effect of the litigation explosion in this country is the
exponential growth of federal doctrines designed to simplify complex litigation.
Many of these...
This Mini-Symposium was originally conducted as a live program at the Annual
Conference of The Association of American Law Schools, January 7, 1997, in
Washington, D.C. The...
109. FEDERAL QUESTION DOCTRINES AND AMERICAN INDIAN LAW, 14 1989
Okla. City U. L. Rev. 263, 389
A. The “Classical” Historical Period: 1789-1876 B. The Complications of
Original and Removal Jurisdiction: Searching for a Unifying Approach 1.
Inconsistent Requirements, Statutory...
110. FEDERAL COMMON LAW AND THE ROLE OF THE FEDERAL
COURTS IN PRIVATE LAW ADJUDICATION -- A (NEW) ERIE PROBLEM?,
12 Pace L. Rev. 229, 261
A. Introduction This year the Federal Courts Section of the Association of
American Law Schools addresses questions of legitimacy and limits in the
fashioning of common law by...
111. BALANCING, JUSTICE, AND THE ELEVENTH AMENDMENT:
JUSTICE STEVENS’ THEORY OF STATE SOVEREIGN IMMUNITY, 27
Rutgers L.J. 563, 604
I.․ Introduction 564 II.․ The Context of Justice Stevens’ Position on State
Sovereign Immunity 566 III.․ Evolution of Justice Stevens’ Eleventh
Amendment Jurisprudence 568 A. First...
Domestic violence is one of this country’s most pernicious and persistent social
problems. Like cancer, it is egalitarian, affecting every stratum of American life.
No class,...
113. CONSTITUTIONAL LAW-SOVEREIGN IMMUNITY-CONGRESS’S
ARTICLE I POWERS MAY NOT ABROGATE STATE SOVEREIGN
IMMUNITY GRANTED BY THE ELEVENTH AMENDMENT AND EX PARTE
YOUNG IS INAPPLICABLE TO SUITS BROUGHT UNDER THE INDIAN
GAMING RE, 27 Seton Hall L. Rev. 806, 835
The concept of sovereign immunity predates the formation of a federal
government in the United States. Initially founded on the belief that the King
enjoyed immunity from all...
114. A CATALOGUE OF JUDICIAL FEDERALISM IN THE UNITED
STATES, 46 S.C. L. Rev. 835, 875
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Title
Date
Type
Depth
I. Introduction․ 835 II. Court Structures and Organization․ 836 III. Principles of
Judicial Federalism․ 841 IV. Jurisdictions and Procedures․ 846 A. Diversity․
846 B. Federal...
2005
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2005
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1993
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1990
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1995
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120. WHY AND HOW TO TEACH FEDERAL COURTS TODAY, 53 St. Louis 2009
U. L.J. 693, 727+
Law Review
—
121. TAKING COMITY SERIOUSLY: HOW TO NEUTRALIZE THE
ABSTENTION DOCTRINE, 46 Stan. L. Rev. 1049, 1114
1994
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2007
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2002
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115. THE DECONSTRUCTION AND RECONSTRUCTION OF HABEAS, 78
S. Cal. L. Rev. 1125, 1220
I. INTRODUCTION․ 1126 II. THE PARADIGMATIC CONSTRUCT․ 1134
A. The Construct Itself․ 1134 B. The Underlying Doctrines․ 1139 C. The
Construct’s Vision of Judicial Federalism․ ...
116. CONSTITUTIONALISM IN THE STREETS, 78 S. Cal. L. Rev. 401, 456
This Article embarks on a reconstruction of constitutionalism in the early
American Republic through a microhistorical case study of United States v.
Peters, the first Supreme...
117. HABEAS CORPUS JURISDICTION: THE LIMITS OF MODELS, 66 S.
Cal. L. Rev. 2507, 2531
It is a pleasure to have the task of reacting to two such interesting and
insightful articles. I have always thought there are two rules for commentators.
First, discuss the...
118. ONE HUNDRED YEARS OF FOLLY: THE ELEVENTH AMENDMENT
AND THE 1988 TERM, 64 S. Cal. L. Rev. 51, 104
The eleventh amendment has become a great battleground of constitutional
federalism. Although phrased as a limited restriction on federal jurisdiction, the
amendment has been read...
119. TWO VISIONS OF JUSTICE: FEDERAL COURTS AT A
CROSSROADS, 11 St. John’s J. Legal Comment. 63, 71
For some time now, the conservative legal movement has waged a concerted
campaign to exalt a doctrine it refers to as ‘judicial restraint‘ and to demonize
that which it terms...
The abstention doctrine prohibits a federal court from deciding a case within its
jurisdiction so that a state court can resolve some or all of the dispute. The
purported rationale...
122. PRIVATIZING BANS ON ABORTION: EVISCERATING
CONSTITUTIONAL RIGHTS THROUGH TORT REMEDIES, 80 Temp. L.
Rev. 123, 199
State governments have devised a new means to evade the Constitution. Their
new means is to enact tort statutes that, in effect, ban constitutionally protected
conduct. In...
123. ACTIVISM AS RESTRAINT: LESSONS FROM CRIMINAL
PROCEDURE, 80 Tex. L. Rev. 1057, 1115
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Title
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Type
Depth
Much has been made in recent years about the puzzling chasm that separates
constitutional law, on the one hand, and criminal procedure, on the other--what
one leading commentator...
2000
Law Review
—
125. FEDERAL COURT PRACTICE AND PROCEDURE: A THIRD BRANCH 1999
BIBLIOGRAPHY, 30 Tex. Tech L. Rev. 909, 1108
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1994
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1992
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131. THE FUTURE OF STATE AND FEDERAL CIVIL RIGHTS
1994
PROSECUTIONS: THE LESSONS OF THE RODNEY KING TRIAL, 41 UCLA
L. Rev. 509, 608+
Law Review
—
124. THE FIGURE IN THE CARPET, 78 Tex. L. Rev. 1731, 1770
In Henry James’s story, a prolific novelist confides to a literary critic that his
books share a common theme. That theme is integral to the nov-els, lending
them meaning in the...
This effort may seem to be as futile as it is ambitious: to compile a
comprehensive bibliography of books and articles dealing with the various
aspects of the federal courts and...
126. A BIBLIOGRAPHY FOR THE UNITED STATES COURTS OF
APPEALS, 25 Tex. Tech L. Rev. 335, 378
If we are to keep our democracy, there must be one commandment: Thou shalt
not ration justice. This Bibliography was compiled for a book by the present
author entitled, Rationing...
127. SOME PRELIMINARY THOUGHTS ON LONG-RANGE PLANNING
FOR THE FEDERAL JUDICIARY, 23 Tex. Tech L. Rev. 1, 15
The hardest strokes of heaven fall in history upon those who imagine that they
can control things in a sovereign manner, as though they were kings of the
earth, playing Providence...
128. THE CURTAILMENT OF FEDERAL COURT JURISDICTION:
SEMINOLE TRIBE OF FLORIDA V. FLORIDA, 24 T. Marshall L. Rev. 109,
147
“The ‘degree of confusion following a splintered decision ․ is itself a reason for
reexamining that decision’.” The Eleventh Amendment, since its adoption and
ratification in 1798,...
129. INTERSECTIONS OF STATE AND FEDERAL POWER: STATE
JUDGES, FEDERAL LAW, AND THE “RELIANCE PRINCIPLE”, 81 Tul. L.
Rev. 283, 329
Over the same time span that the Rehnquist Court has established substantive
limitations on state and local regulatory power, this Article argues that it
wavered far less often in...
130. FEDERALISM AND THE FAMILY RECONSTRUCTED, 45 UCLA L.
Rev. 1297, 1400+
Introduction․ 1297 I. Arguing from History for Localism․ 1301 A. History
Marks Family Law as the Lodestar of Localism․ 1302 B. The Unexplained
Elevation of History․ 1306 C....
Introduction․ 510 I.
‘The Rodney King Case’․ 516
A.
The Beating․
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Title
516
B. Procedural History․ 524
Prosecuting Civil Rights Cases․ 534...
Date
C.
Type
Depth
Impact of the Case․ 533 II.
2010
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2002
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1989
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135. TWO CHEERS FOR FEMINIST PROCEDURE, 61 U. Cin. L. Rev. 1201, 1993
1207
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1995
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132. PREVENTIVE ADJUDICATION, 77 U. Chi. L. Rev. 1275, 3334
This Article identifies, justifies, and explains the parameters of a largely ignored
but important category of cases—what is here called “preventive adjudication.”
In this category...
133. THE “CONSERVATIVE” PATHS OF THE REHNQUIST COURT’S
FEDERALISM DECISIONS, 69 U. Chi. L. Rev. 429, 494
This Article broadly examines the conservative Rehnquist Court’s federalism
doctrines and, in doing so, explores the connections between judicial
conservatism and a commitment to...
134. MARBURY, SECTION 13, AND THE ORIGINAL JURISDICTION OF
THE SUPREME COURT, 56 U. Chi. L. Rev. 443, 499
In this year marking the Bicentennial of the Judiciary Act of 1789, and in a
symposium designed to commemorate that Act, it might seem perverse, if not
downright gauche, to begin...
When I first told my wife, who is also a lawyer, that I was going to be on a
panel about feminism and civil procedure, she asked me who else was going to
participate. When I read...
136. AN UNWELCOME STRANGER: CONGRESSIONAL INDIVIDUAL
RIGHTS POWER AND FEDERALISM, 44 U. Kan. L. Rev. 61, 101
The United States Supreme Court’s two recent decisions concerning the
availability of federal remedies against private organizations that obstruct
access to abortion clinics...
137. JURISDICTION STRIPPING, CONSTITUTIONAL SUPREMACY, AND
THE IMPLICATIONS OF EX PARTE YOUNG, 153 U. Pa. L. Rev. 1677, 1708
On July 22, 2004, the House of Representatives passed the Marriage
Protection Act of 2004, a bill that would strip the federal courts of jurisdiction
over cases challenging the...
138. FORUM SHOPPING FOR ARBITRATION DECISIONS: FEDERAL
COURTS’ USE OF ANTISUIT INJUNCTIONS AGAINST STATE COURTS,
147 U. Pa. L. Rev. 91, 203
“The facts of this case demonstrate the quagmire into which federal courts
frequently have been thrust in arbitration disputes in which the parties have
involved both state and...
139. FEDERALISM AND FAMILIES, 143 U. Pa. L. Rev. 1787, 1888
Introduction ․ 1788 I. The Localist Strand in Constitutional Federalism ․ 1794
A. Localism Under Dual Federalism ․ 1796 B. The Paradigm of Procedural
Federalism: Process and...
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Title
140. THE TWO-TIERED STRUCTURE OF THE JUDICIARY ACT OF 1789,
138 U. Pa. L. Rev. 1499, 1567
Date
Type
Depth
1990
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1990
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2008
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1991
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1991
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1991
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What limits (if any) does the Constitution impose on congressional efforts to
strip federal courts of jurisdiction in controversial areas— abortion, flag burning,
or what have...
141. THE HISTORY AND STRUCTURE OF ARTICLE III, 138 U. Pa. L. Rev.
1569, 1632
In his present article and two that preceded it, Akhil Amar takes issue with what
has come to be regarded as the traditional view of article III—that Congress
has plenary authority...
142. CONGRESS, EX PARTE YOUNG, AND THE FATE OF THE THREEJUDGE DISTRICT COURT, 70 U. Pitt. L. Rev. 101, 153
In 1908 the Supreme Court held in Ex parte Young that a federal judge could
enjoin a state attorney general from enforcing an unconstitutional state statute,
notwithstanding...
143. RETHINKING EXCLUSIVE FEDERAL JURISDICTION, 52 U. Pitt. L.
Rev. 383, 434+
Two centuries ago the first United States Congress provided that certain
actions could only be litigated in the then newly created federal courts, not in
the existing state courts....
144. EX PARTE YOUNG: SOVEREIGNTY, IMMUNITY, AND THE
CONSTITUTIONAL STRUCTURE OF AMERICAN FEDERALISM, 40 U. Tol.
L. Rev. 843, 888+
THE U.S. Supreme Court’s recent state-immunity jurisprudence requires
reconsideration. The call for reconsideration does not stem from an absolutist
rejection of all forms of...
145. JUDICIAL RESTRAINTS ON ILLEGAL STATE VIOLENCE: ISRAEL
AND THE UNITED STATES, 35 Vand. J. Transnat’l L. 73, 149
This Article examines the role of courts in controlling state violence in the
United States and Israel. The Author considers how U.S. federal courts should
respond to illegal...
146. REFLECTIONS ON THE HART AND WECHSLER PARADIGM, 47
Vand. L. Rev. 953, 987+
I. INTRODUCTION II. THE HART AND WECHSLER PARADIGM A. Stances
Toward Hart and Wechsler 1. The Unmet Challenge of Brown? 2. The Puzzling
Persistence of Hart and Wechsler B. Sources...
147. PRIVACY IN THE FIRST AMENDMENT: PRIVATE FACTS AND THE
ZONE OF DELIBERATION, 44 Vand. L. Rev. 899, 923
I. INTRODUCTION․ 899 II. THE CLASSIC DEMOCRATIC MODEL OF
THE FIRST AMENDMENT: MEIKLEJOHN REVISITED․ 902
A.
Meiklejohn, New York Times v. Sullivan, and the Democratic Model․ ...
148. EXPLORING A SECOND LEVEL OF PARITY: SUGGESTIONS FOR
DEVELOPING AN ANALYTICAL FRAMEWORK FOR FORUM SELECTION
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Title
Date
Type
Depth
IN EMPLOYMENT DISCRIMINATION LITIGATION, 44 Vand. L. Rev. 641,
688
I. INTRODUCTION II. THE YELLOW FREIGHT DECISION AND ITS
IMPLICATIONS A. Prior Decisions B. The Seventh Circuit’s Rejection of
Valenzuela C. The Supreme Court’s Finding of...
1992
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1998
Law Review
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1999
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2000
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2005
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1998
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155. ARTICLE III CASES, STATE COURT DUTIES, AND THE MADISONIAN 1995
COMPROMISE, 1995 Wis. L. Rev. 39, 197
Law Review
—
Law Review
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149. THE CONSITUTIONALITY OF SECTION 27A OF THE SECURITIES
EXCHANGE ACT: IS CONGRESS RUBBING LAMPF THE WRONG WAY?,
37 Vill. L. Rev. 1213, 1328
I. Introduction II. Historical Background of Statutes of Limitation in Rule 10b-5
Litigation A. Statutes of Limitation and Statutes of Repose in General B.
Statutes of Limitation...
150. IN PRAISE OF THE ELEVENTH AMENDMENT AND SECTION 1983,
84 Va. L. Rev. 47, 82
AS everyone knows, the Eleventh Amendment is a mess. It is the home of selfcontradiction, transparent fiction, and arbitrary stops in reasoning. Any hope of
doctrinal stability...
151. MUST COURTS RAISE THE ELEVENTH AMENDMENT SUA
SPONTE?: THE JURISDICTIONAL DIFFICULTY OF STATE SOVEREIGN
IMMUNITY, 56 Wash. & Lee L. Rev. 1037, 1078+
Table of Contents I. Introduction․ 1038 II. The Love-Hate Relationship of the
Eleventh Amendment and State Sovereign Immunity․ 1040 A. The Love․
1040 B. The Hate․ 1041 III. How...
152. PRINCIPLES OF FORUM SELECTION, 103 W. Va. L. Rev. 167, 203
i. L2-3,T3Introduction 167 ii. L2-3,T3Venue 170 A. Venue Statutes․ 170 B.
Forum Non Conveniens․ 172 C. Transfer of Venue․ 175 D. Personal
Jurisdiction․ 178 iii. L2-3,T3Federal...
153. THE FUTURE OF PARITY, 46 Wm. & Mary L. Rev. 1457, 1497
In the dual enforcement of constitutional norms in the United States, state
governmental institutions, and particularly state courts, are entrusted with
adjudicating federal...
154. STATE JUDGES, STATE OFFICERS, AND FEDERAL COMMANDS
AFTER SEMINOLE TRIBE AND PRINTZ, 1998 Wis. L. Rev. 1465, 1545
Introduction․ 1466 I. The Eleventh Amendment and State Sovereign
Immunity․ 1474 A. The Eleventh Amendment: Text and History․ 1476
Precedent․ 1485
1. Constitutional...
B.
Traditional federal courts scholarship holds that state courts are empowered to
hear, and that they have certain duties to hear, Article III cases and
controversies. Support for...
156. SAYING WHAT RIGHTS ARE-IN AND OUT OF CONTEXT, 1991 Wis.
L. Rev. 929, 968
1991
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THE IDEOLOGIES OF FEDERAL COURTS LAW, 74 Va. L. Rev. 1141
Title
Date
Type
Depth
In this Article, Professor Althouse examines the role of “context” in the
lawmaking process. Specifically, she concentrates on the Supreme Court’s
new habeas corpus doctrine, and...
Law Review
—
Law Review
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1996
Law Review
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1997
Law Review
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161. ALTERING THE COURSE OF THE CONSTITUTIONAL CONVENTION: 1990
THE ROLE OF THE COMMITTEE OF DETAIL IN ESTABLISHING THE
BALANCE OF STATE AND FEDERAL POWERS, 100 Yale L.J. 765, 783
Law Review
—
157. WHY ALIENAGE JURISDICTION? HISTORICAL FOUNDATIONS AND 1996
MODERN JUSTIFICATIONS FOR FEDERAL JURISDICTION OVER
DISPUTES INVOLVING NONCITIZENS, 21 Yale J. Int’l L. 1, 66
I. Introduction․ 2 II. The Origins․ 6 A. The Constitutional Convention and
Ratification․ 6
1. Historical Context․ 6
2. Debate over the Alienage
Provisions of Article III․ ...
158. AFTERWORD: FEDERALISM’S OPTIONS, 14 Yale J. on Reg. 465, 503 1996
I. The Fixtures of United States’ Legal Federalism․ 465 II. Alternative
Conceptions: The Permeable Boundaries of Judicial Federalism․ 479 III.
Federalism and Physicality: The...
159. AFTERWORD: FEDERALISM’S OPTIONS, 14 Yale L. & Pol’y Rev.
465, 503
I. The Fixtures of United States’ Legal Federalism․ 465 II. Alternative
Conceptions: The Permeable Boundaries of Judicial Federalism․ 479 III.
Federalism and Physicality: The...
160. THE COMMON LAW ORIGINS OF CONSTITUTIONALLY
COMPELLED REMEDIES, 107 Yale L.J. 77, 164
C1-3Contents I. Diversity Jurisdiction and Federal Questions․ 84 A.
‘General Law’ and Diversity․ 85
1. The Origins of Diversity Jurisdiction․
85
2. Use of Diversity to...
The Committee of Detail, comprised of five delegates from the Constitutional
Convention, produced the first draft of the Constitution. Yet most constitutional
scholars have...
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