THE ILLEGITIMATE FOUNDATIONS OF THE
ABSTENTION DOCTRINE*
Younger
By Anthony J Dennis**
I.
INTRODUCTION
The United States Supreme Court's decision in Younger v.
Harris1 gave rise to what has become known as the Younger abstention doctrine.2 This doctrine has been the subject of extensive commentary ' This Article does not propose to summarize
that body of commentary nor to criticize specific works within
that already-large collection. Rather, the author hopes first to
* I would like to thank Assistant Professor Larry Marshall, a member of the
Northwestern University School of Law faculty, for his helpful comments on an earlier
draft of this Article.
*** member of the Connecticut and District of Columbia bars, Anthony J. Dennis
received his J.D. from Northwestern University School of Law in 1988 and his B.A., cum
laude, from Tufts University in 1985.
1. 401 U.S. 37 (1971).
2. See infra notes 8-33 and accompanying text.
3. See, e.g., Theis, Younger v. Harris:Federalism in Context, 33 Hasting L.J. 103
(1981); Wells, The Role of Comity in the Law of Federal Courts, 60 N.C.L. Rev. 59
(1981); Calhoun, Exhaustion Requirements in Younger - Type Actions: More Mud in
Already Clouded Waters, 13 Ind. L. Rev. 521 (1980); Koury, Section 1983 and Civil
Comity: Two for the Federalism Seesaw, 25 Loy. L. Rev. 659 (1979); Rosenfeld, The
Place of State Courts in the Era of Younger v. Harris, 59 B.U.L. Rev. 597 (1979); Gibbons, Our Federalism, 12 Suff. U.L. Rev. 1087 (1978); McMillan, Abstention - The Judiciary's Self-Inflicted Wound, 56 N.C.L. Rev. 527 (1978); Redish, The Doctrine of
Younger v. Harris: Deference in Search of a Rationale, 63 Cornell L. Rev. 463 (1978);
Laycock, Federal Interference with State Prosecutions: The Need for Prospective Relief, 1977 Sup. Ct. Rev. 193; Solfer & Macgill, The Younger Doctrine: Reconstructing
Reconstruction, 55 Texas L. Rev. 1141 (1977); Wilkinson, Anticipatory Vindication of
Federal Constitutional Rights, 41 Albany L. Rev. 459 (1977); Weinberg, The New Judicial Federalism, 29 Stan. L. Rev. 1191 (1977); Zeigler, An Accommodation of the
Younger Doctrine and the Duty of the Federal Courts to Enforce Constitutional Safeguards in the State Criminal Process, 125 U. Pa. L. Rev. 266 (1976); 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 (1975); Wechsler, Federal Courts, State Criminal Law and the First Amendment, 49 N.Y.U.L. Rev. 740
(1974).
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critically address what heretofore has largely been assumed.
Namely, that the Court correctly applied the factors" which it
asserted as the basis of the Younger abstention doctrine. It will
be demonstrated that since the Younger abstention doctrine's
inception, the Court has misconstrued and misapplied such factors as doctrines of equity jurisprudence which have been advanced by the Court as the basis for its decision to abstain from
exercising federal jurisdiction under Younger It will then be argued that, for these and other reasons, the Younger abstention
doctrine rests upon an illegitimate foundation.
Unfortunately, for reasons known only to the Court, the
Younger abstention doctrine has been applied and expanded
over the years despite its questionable conceptual foundations.
The rule of Younger v. Harris, and the vision of federalism
presented in that case, has been successfully invoked to preclude
federal judicial intervention in a broad array of state proceedings.5 As was perhaps inevitable, the Court's reluctance to critically reevaluate its earlier decision has at last placed it an untenable position. The decisional framework for resolving federalstate relations which the Court presented in Younger v. Harris
is fundamentally at odds with the decisional framework that the
Court explicitly set forth in Garcia v. San Antonio Metropolitan
Transit Authority 6 As a result, the bench and the bar have
been left without a coherent conceptual framework for resolving
issues that implicate federal-state relations. Surprisingly, the
Court continues to apply both lines of decision,7 seemingly unaware of the contradictions in its position.
A.
Younger and its Progeny
The Younger abstention doctrine has its origins in the 1971
case of Younger v. Harris.8 In that case, John Harris was in4. The two primary factors behind the Court's decision in Younger were equity and
federalism.
5. See infra notes 26-33 and accompanying text.
6. 469 U.S. 528 (1985); see infra notes 139-165 and accompanying text.
7. See infra note 162 and accompany text.
8. 401 U.S. 37 (1971). Younger was one of six cases rendered on the same day all of
which were resolved under the abstention doctrine announced in that case. The other
cases were: Boyle v. Landry, 401 U.S. 77 (1971); Byrne v. Karalexis, 401 U.S. 216 (1971);
Dyson v. Stein, 401 U.S. 200 (1971); Perez v. Ledesma, 401 U.S. 82 (1971); Mackell v.
Samuels, 401 U.S. 66 (1971).
YOUNGER ABSTENTION DOCTRINE
1990]
dicted for violating the California Criminal Syndicalism Act
which made it a crime to advocate, teach or take part in crime
and sabotage to effect a change in industrial ownership or any
other political change.9 Harris sought a federal injunction under
Section 1983 to prevent Younger, who was the Los Angeles District Attorney, from prosecuting him. 10 Harris alleged "that the
prosecution and even the presence of the Act inhibited him in
the exercise of his rights of free speech and press, rights guaranteed him by the first and fourteenth Amendments."" Three
other individuals intervened as plaintiffs in the federal suit, alleging that their first amendment rights were also being chilled
by the ongoing prosecution of Harris under the Act. 2 Although
Harris successfully secured an injunction against prosecution
from a three-judge federal district court,'3 the Supreme Court
reversed1 4 and refused to enjoin a pending state criminal prosecution despite allegations that such a proceeding violated the
federal plaintiff's constitutional rights. 5
The Younger Court rested its decision on two grounds.
First, the Court invoked doctrines of equity jurisprudence which
state that "courts of equity should not act, and particularly
should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer
irreparableinjury if denied equitable relief."' 6 The Court concluded that Daniel Harris had an adequate remedy in state
court because he could bring his constitutional claims as part of
his defense in that proceeding." A consideration the Supreme
Court labeled "Our Federalism"" prowded the second basis for
Younger abstention. "Our Federalism" consists of:
[A]n even more vital consideration, the notion of "comity" that
9.
Younger, 401 U.S. at 39-39 n.1.
10. Id. at 39.
11.
Id.
12. Id. at 39-40. The claims of plaintiff-intervenors Jim Dan, Diane Hirsch and
Farrel Broslawsky were dismissed for lack of standing. Id. at 41-42.
13. Younger, 401 U.S. at 40 (convened pursuant to 28 U.S.C. § 2284 (1982)).
14. Id. The case came to the Supreme Court by direct appeal from the decision of
the three-judge federal district court by virtue of 28 U.S.C. § 1253 (1982). Id.
15. Id. at 54.
16.
17.
18.
Younger, 401 U.S. at 43-44 (emphasis added).
Id. at 44.
Id.
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is, a proper respect for state functions
The concept does not
mean blind deference to "States' Rights" any more than it means centralization of control over every important issue in our National GovWhat the concept does represent is a
ernment and its courts
system in which there is sensitivity to the legitimate interests of both
State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights
and federal interests, always endeavors to do so in ways that will not
unduly interfere with the legitimate activities of the States. 9
Given this federalism aspect of Younger abstention, the Court
proceeded to ascertain the importance of the state interest
called into question by the state proceeding in order to determine whether to permit federal interference with the ongoing
prosecution.20 In Younger itself, the Court concluded that states
have a very important interest in enforcing their criminal laws. 21
Consequently, notions of federalism, in addition to equitable
principles, counselled against federal interruption of the crimi2
nal action.1
23
Although the Court took note of the Anti-Injunction Act
which generally prohibits federal courts from enjoining state judicial proceedings, the Court in Younger nonetheless rested its
19. Id. at 44-45.
20. Younger, 401 U.S. at 45-46, 53.
21. Id.
22. The Younger court listed three exceptions to the kind of abstention provided
for in that case: where the prosecution was brought in bad faith, where the prosecution
was part of a plan of harassment or where "extraordinary circumstances" existed which
would give rise to irreparable injury. As an example of the last exception, the Court
posited the notion of a patently unconstitutional state statute. Id. at 47-51, 53.
Presumably, these exceptions are justifiable on equitable grounds. The argument
could be made that there is no adequate remedy at state law and therefore that irreparable injury will occur if any injunction does not issue to prohibit state police and prosecutors from repeatedly arresting and charging individuals with criminal violations without
hope of an eventual conviction. However, it is unclear why under Younger abstention the
Court could not consider the availability of a state court injunction as a possible adequate remedy at state law. The Younger Court never makes this inquiry. The 'patently
unconstitutional state statute' exception is less defensible both on equitable and federalism grounds. For a discussion of the three exceptions, see Redish, Federal Court Jurisdiction: Tensions in the Allocation of Judicial Power 304-07 (1980); Fiss, Dombrowski,
86 Yale L.J. 1103, 1115 (1977); Sedler, Dombrowski in the Wake of Younger- The View
from Without and Within, 1972 Wis. L. Rev. 1, 29-40.
23. 28 U.S.C. § 2283 (1982). The Anti-Injunction Act provides: "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."
1990]
YOUNGER ABSTENTION DOCTRINE
decision on expressly non-statutory grounds,"4 leaving open the
question of whether the Anti-Injunction Act also barred injunctive relief under the circumstances. Therefore as a result of
Younger, in addition to any limits on federal injunctions imposed by the Anti-Injunction Act,25 a federal court must also
satisfy the "Our Federalism" and equitable restraint tests posed
by the Younger abstention doctrine before enjoining a pending
state criminal proceeding.
In the years since Younger, the abstention doctrine announced in that case has been expansively applied by the Court
to prohibit federal intervention in ongoing state proceedings
that implicate state interests of many kinds.2 " Armed with the
conceptual framework developed in Younger, the Supreme
Court gradually expanded Younger abstention from its foundation in criminal proceedings to quasi-criminal proceedings,2 7
proceedings implicating a state court's contempt power, 28 proceedings concerning a state's public welfare program,2 9 proceedings concerning state custody and family law statutes, 30 state bar
disciplinary proceedings, 31 state administrative proceedings involving the issue of sex discrimination in employment 3 2 and,
most recently, judicial proceedings involving the enforcement of
a court's judgment through the posting of a bond in the sum of
the verdict pending appeal."
Despite the Court's willingness to apply Younger abstention
in a variety of new circumstances, the Court has failed to adequately address a fundamental question: Given the non-statutory nature of the Younger abstention doctrine, upon what conceptual basis can the Court rest its repeated decisions to abstain
24. Younger, 401 U. S. at 54.
25. See supra note 23. One year after the Younger decision, in Mitchum v. Foster,
407 U.S. 225 (1972), the Court held that Section 1983 is an "expressly authorized" exception to the Anti-Junction Act, thereby diminishing the impact of the Act's prohibition
against federal intervention with state judicial proceedings.
26. See Infra notes 27-33 and accompanying text.
27. See Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).
28. See Juidice v. Vail, 430 U.S. 327 (1977).
29. See Trainor v. Hernandez, 431 U.S. 434 (1977).
30. See Moore v. Sims, 442 U.S. 415 (1979).
31. See Middlesex County Ethics Committee v. Garden State Bar Association, 457
U.S. 423 (1982).
32. Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U. S. 619
(1986).
33. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).
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from adjudication 9
II.
Younger
ABSTENTION: EQUITY IN THE SERVICE OF FEDERALISM
An analysis of the legitimacy of the Younger abstention
doctrine properly begins with an investigation of the Court's
own reasons for creating and applying that doctrine. In Younger,
the Court purported to apply established (and presumably noncontroversial) principles of equity law"' As will be demonstrated, the Younger Court paid attention to neither the raison
d'etre of equitable principles nor the inquiry and approach dictated by specific equitable doctrines. The Court's treatment of
relevant rules of equity can be characterized, at best, as cavalier
and, at worst, as disingenuous.
A.
Equity Law
In order to appreciate the degree to which the Supreme
Court has misapplied or ignored equitable concepts within the
context of the Younger abstention doctrine, despite its claims to
the contrary, it is necessary to review briefly the most commonly
invoked equitable doctrines, their history and development. Equity law began as a power of the British sovereign which was
eventually delegated to a royal officer bearing the title of Chancellor.3 Over the years and through the Chancellor's repeated
exercise of his equitable powers, equity evolved into a recognizable set of legal concepts and doctrines.36 By the fourteenth century it had become embodied in its own separate court system
called the Courts of Chancery 31
Equity functioned within the British legal system to mitigate the rigidity of the common law 38 The law of equity sought
to fashion a just remedy which would be responsive to the facts
34. See Younger, 401 U.S. at 43-54.
35. See H. McClintock, Principles of Equity 1-19 (1948) [hereinafter McClintock,
Equity]; see generally Hazeltine, The Early History of English Equity, in Essays in
Legal History (P Vinogradoff ed. 1913) [hereinafter Hazeltine]; S.W Holdsworth, A
History of English Law (1924) [hereinafter Holdsworthl; F Maitland, Equity, (2d rev.
ed. 1936) [hereinafter Maitland]; Adams, The Origin of English Equity, 16 Colum. L.
Rev. 87 (1916).
36. See supra note 35.
37. See Hazeltine, supra note 35, at 261-85; Holdsworth, supra note 35, at 336-38;
Maitland, supra note 35, at 1-16.
38. See McClintock, Equity, supra note 35, at 1-19.
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YOUNGER ABSTENTION DOCTRINE
of the case and the needs of the particular litigant while also
serving the overall goals of the common law where the common
law was somehow inadequate."9 Consequently, equitable relief
was considered an extraordinary remedy activated only upon a
showing of certain factors." Specifically, before a litigant could
escape the constraints of the common law, equity required a
showing of substantial and imminent harm, the inadequacy of
other available remedies and a demonstration that irreparable
harm would occur if equitable relief was not granted."
The irreparable injury standard requires a showing that
other available remedies are somehow incapable of making the
plaintiff whole."2 One noted treatise writer has defined this equitable doctrine as follows:
[W]e mean by saying that in injury is irreparable either that no
legal remedy furnishes full compensation or adequate redress, owing
to the inherent ineffectiveness of such legal remedy, or that, owing to
the delay incident to the prosecution of an action at law to final judgment and obtaining service thereon, such judgment and process would
prove fruitless of beneficial results.4"
Thus, the irreparable injury or irreparable harm standard is but
another name for the inadequate remedy at law doctrine. This
standard underscores the extraordinary nature of equitable
relief.
With regard to state criminal prosecutions, the defendant is
usually regarded as having an adequate legal remedy by way of
39.
40.
41.
See McClintock, Equity, supra note 35, at 1-19, 101-05, 110-13.
See McClintock, Equity, supra note 35, at 46-55.
See McClintock, Equity, supra note 35, at 46-55; Shreve, Federal Injunctions
and the Public Interest, 51 Geo. Wash. L Rev. 382, 388-97 (1983). The intellect and
imagination of a number of those who occupied the office of Chancellor helped to shape
the doctrines of equity. See T. Plunkett, A Concise History of the Common Law 695-707
(1956). These limiting principles were also shaped by political forces inside of England
and reflected, in part, the balance of power between the Crown which still retained nominal control over the Chancery courts and the common law court system which received
the political support of Parliament. See McClintock, Equity, supra note 35, at 47.
42. 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, 600-04 (1975) [hereinafter Whitten, Federal Interference]; McClintock,
Equity, supra note 35, at 46-55, 103-04, 110-13.
43. Whitten, FederalInterference, supra note 42, at 601 (quoting 1 T. Spelling, A
Treatise on Injunctions and Other ExtraordinaryRemedies § 13, 19-20 (2d ed. 1901)).
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defense in that proceeding."" This general rule is subject to two
exceptions. American and British courts consider a party to be
irreparably injured when that party is faced with multiple prosecutions"' or a prosecution brought in bad faith 4" because the injuries inflicted upon the litigant from these types of prosecutions
cannot normally be rectified by the original judicial proceeding
itself.
The requirement of imminent and substantial harm also has
a specialized definition. Under this doctrine the court must balance the magnitude of the harm against the probability of its
occurrence."7 If the defendant is capable of preventing the harm,
equitable relief can be denied as failing the imminence requirement. 48 Conversely, equitable relief may be granted for a substantial injury which is not very likely to occur.' 9
The maxim that equity will not enjoin a criminal proceeding
has its origins in the jurisdiction of the English Court of Chancery " The British system recognized a number of exceptions to
this restriction. For example, a subsequently commenced criminal proceeding could be enjoined if it involved the same issues as
those at stake in the equitable proceeding." The maxim that
equity is concerned with the protection of property rights52 also
44. See Whitten, Federal Interference, supra note 42, at 602; See also Douglas v.
City of Jeanette, 319 U.S. 157 (1943); Williams v. Miller, 317 U.S. 599 (1942); Beal v.
Missouri Pac. R.R. Co., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941); see also
Sp[eilman Motor Sales Co. v. Dodge, 295 U.S. 89 (*1935); but see notes 99-105 and
accompanying text.
45. See Whitten, Federal Interference, supra note 42 at 603; McClintock, Equity,
supra note 35, at 471 n.67; see, e.g., Younger v. Harris, 401 U.S. 37 (1971).
46. See Whitten, Federal Interference, supra note 42, at 603-04; see, e.g., Younger
v. Harris, 401 U.S. 37 (1971).
47. See Whitten, Federal Interference, supra note 50, at 604-11; see, e.g., Fletcher
v. Bealey, 28 Ch.D. 688 (1885); Pattison v. Gilford, L.R. 18 Eq. 259 (1874); Hepburn v.
Lordan, 71 Eng. Rep. 497 (V.C. 1865); Haines v. Taylor, 50 Eng. Rep. 511 (Rolls 1846);
Earl of Ripon v. Hobart, 40 Eng. Rep. 65 (Ch. 1834); Crowden v. Tinkler, 34 Eng. Rep.
645 (Ch. 1816).
48. See Whitten, Federal Interference, supra note 50, at 606.
49. Id.
50. Id. at 597-98; see McClintock, Equity, supra note 35, at 469-74.
51. See Mayor of York v. Pilkington, 26 Eng. Rep. 584 (Ch. 1742); Whitten, Federal Interference, supra note 42 at 598.
52. See Gee v. Pritchard36 Eng. Rep. 670 (Ch. 1818); Whitten, Federal Interference, supra note 42; McClintock, Equity, supra note 35, at 470, n.59. Prof. Wechsler
disputes this reading of Gee v. Pritchardand consequently the establishment of the
property right limitation. Wechsler, Federal Courts, State Criminal Law and the First
Amendment, 49 N.Y.U.L. Rev. 740, 743-53 (1974) [hereinafter Wechsler, Federal
1990]
YOUNGER ABSTENTION DOCTRINE
served to qualify the doctrine of non-interference with criminal
matters.5 3 Where criminal proceedings jeopardized such property rights, equitable intervention was justified. 4 Of course, in
the typical case, the property right limitation served to prohibit
a court of equity from interfering in criminal matters 5 since
criminal trials usually implicate a party's interest in personal
liberty, not property
The doctrines of equity and, by implication, the judicial interpretations which have surrounded their application, were
made available to the federal judiciary by the United States
Constitution which states that "[t]he judicial [p]ower shall extend to all [c]ases, in [flaw and equity
"756 Pursuant to its
power to create the lower federal courts57 and therefore to regulate their jurisdiction," Congress conferred original jurisdiction
upon the lower federal courts in "suits of a civil nature at common law or in equity "59 The United States' adoption of the adequate remedy standard,6 0 in particular, was underscored by the
fact that this same piece of legislation also provided that "suits
in equity shall not be sustained in either of the courts of the
Courts]. According to Prof. Wechsler, in Gee Lord Eldon stretched equity to protect the
plaintiff's privacy right in some personal letters, which the defendant threatened to publish, by employing a theory of literary property. Id. at 746. Subsequent to the decision,
commentators incorrectly assumed that Gee stood for the proposition that equity only
protects property rights. Id. This misconstruction was adopted by the United States Supreme Court in In re Sawyer, 124 U.S. 200 (1988). In re Sawyer involved an injunction
to prevent the mayor and committeemen of Lincoln, Nebraska from removing a city
officer upon charges of malfeasance while in office. Id. As In re Sawyer itself did not in
fact involve a criminal proceeding, Justice Gray's remarks in that case to the effect that
equity will not restrain a criminal proceeding are mere dicta. Nonetheless, these "rules"
of equity stood. Wechsler, Federal Court, supra, at 747.
53. See Whitten, Federal Interference, supra note 42, at 599.
54. Id.
55. See supra note 52 and accompanying text.
56. U.S. Const. art. III, § 2, cl.1. For a discussion of the consequences of this fusion of law and equity under one court system and the advisability of nonetheless maintaining traditional standards of equity, see McClintock, Equity, supra note 35, at 18; G.
McDowell, Equity and the Constitution (1982); Whitten, Federal Interference, supra
note 42, at 611-16.
57. The judicial [p]ower of the United States, shall be vested. .n such inferior
[clourts as the Congress may from time to time ordain and establish. U.S. const. art. III,
§ 1, cl.1.
58. U.S. Const. art.III, § 1.
59. Judiciary Act of 1789, Ch. 20 § 11, 1 Stat. 78 (codified as amended in scattered
sections of 12 U.S.C. (1982)).
60. See supra notes 42-46 and accompanying text.
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United States, in any case where plain adequate and complete
remedy may be had at law "I'
As a result of these constitutional and statutory provisions,
the federal courts have generally followed those doctrines of equity that were in existence in Great Britain.2 Therefore, the
Younger Court's invocation of equity jurisprudence is certainly
justified as an exercise of the federal judiciary's equitable powers. Yet, as will be demonstrated, the Court did not correctly
apply doctrines of equity in Younger or in many of the other
cases that fall within the Younger line of decisions.
B. Equity and the Younger Abstention Doctrine
Since the inception of the Younger abstention doctrine, the
Supreme Court has in fact molded principles of equity law" a to
suit its federalism concerns. This process was evident64 in
Younger itself. In its discussion of the equitable component of
abstention, the Court acknowledged that the inadequate remedy/irreparable injury standard 5 of equity law "originally [grew]
out of circumstances peculiar to the English judicial system and
not applicable in this country "166 Nonetheless, although one of
the critical rationales6 7 for the doctrine's existence was inapplicable, the Supreme Court applied the standard because the
61. Act of Sept. 24, 1789, Ch. 20, § 16, 1 Stat. 82.
62. See Lockwood, Maw & Rosenberry, The Use of the Federal Injunction in Constttuttonal Litigation, 43 Harv. L. Rev. 426, 431, n.21 (1930); but see G. McDowell, Equity and the Constitution (1982).
63. See generally, McClintock, Equity, supra note 35; see supra notes 35-62 and
accompanying text.
64. Younger, 401 U.S. at 43-44.
65. Inadequate remedy and irreparable injury are two terms of equity law which
are often considered to mean the same thing. If an adequate remedy at law is not available, then the injury to a litigant is considered to be irreparable because the law, either
through its substantive or procedural provisions, denies that party an effective means of
redress.
66. Younger, 401 U.S. at 44.
67. A primary reason for the existence of the inadequate remedy standard in particular, and for the extraordinary nature of equitable relief in general, was to avoid unnecessary encroachment upon the domain of the common law courts. See McClintock,
Equity, supra note 35, at 47. The above rationale was greatly undermined by the Judicature Acts of 1873 and 1875 which merged the equity and common law courts in Great
Britain. See id at 14; Maitland, supra note 35, at 15. The two systems were subsumed
within one court system from the beginning in the United States by the U.S. Constitution. See U.S. Const. art. III § 2, cl.1. Any procedural distinctions in the federal courts
between actions at law and suits in equity were finally abolished by the promulgation in
1938 of the Federal Rules of Civil Procedure, 28 U.S.C.A. (1938). See F James & G.
Hazard, Civil Procedure 21-22 (2d ed. 1977).
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YOUNGER ABSTENTION DOCTRINE
Court considered it a valuable limit on the exercise of equity
jurisdiction for reasons peculiar to this country
[lits fundamental purpose of restraining equity jurisdiction within
narrow limits is equally important under our Constitution, in order to
prevent erosion of the role of the jury and to avoid a duplication of
legal proceedings.
.where a single suit would be adequate to protect
the rights asserted. This underlying reason for restraining courts of
equity. .is reinforced by an even more vital consideration, the notion
of "comity."
This. .is referred to by many as "Our
Federalism." 8
As the above excerpt suggests, "Our Federalism" is clearly the
more prominent justification for Younger abstention. To the
Younger Court, equity law was an empty vial to be filled with
whatever constitutional or other value the federal bench wished
to address at that particular moment. In the context of Younger
abstention, the language of equity was used exclusively to serve
the interests of federalism.
The Court's concerns as expressed in its doctrine of "Our
Federalism" also prompted the Court to alter established principles of equity law 89 In addition to imparting a new rationale70 to
an equitable doctrine the Younger Court also changed the inadequate remedy/irreparable injury doctrine itself. For reasons of
comity and federalism, the Court explained, "even irreparable
injury is insufficient unless it is 'both great and immediate.' "
In general, the Court's Younger abstention cases have made
short shrift of traditional equitable inquiry As has been demonstrated, equity requires a case by case investigation on the part
of the court into the particular facts of the case, the adequacy of
the remedies available at law and the sufficiency of the procedures at law for the attainment of those remedies. 72 Yet in Perez
v. Ledesma 73 and Byrne v. Karalexs7 4 for example, cases decided together with Younger, the Court assumed without further
68. Younger, 401 U.S. at 44.
69. See supra notes 41-49, 71 and accompanying text.
70. See supra notes 63-68 and accompanying text.
71. Younger, 401 U.S. at 46.
72. See supra notes 39-47 and accompanying text; McClintock, Equity, supra note
35, at 1-3, 45-52, 110-11.
73. 401 U.S. 82 (1971).
74. 401 U.S. 216 (1971).
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inquiry that there was an adequate remedy at state law by virtue of the existence of the federal plaintiff's right of defense in
the state criminal proceeding."
In the Younger criminal cases in general, the Court appears
to accept in a conclusory fashion that the adequacy requirement
is automatically met either by the mere existence of the right to
defend in the state proceeding or by the possibility of a subsequent habeus corpus suit.76 In Moore v. Sims, 77 a case not in-
volving a state criminal proceeding, the federal plaintiff challenged the constitutionality of Texas' child custody and family
law statutes and sought a federal injunction prohibiting their enforcement. 78 The Court passively noted the complexity of the
state statutes involved and rested its decision to abstain in part
on its general impression that Texas law appeared to raise no
barriers to the federal plaintiff's constitutional claims.79
The Supreme Court did adopt a more fact-intensive approach in Middlesex County Ethics Committee v. Garden State
Bar Association,8 0 a case which involved a non-judicial proceeding. In Middlesex the Court thoroughly investigated the procedures used in the state proceedings and the ability of those procedures to accommodate constitutional challenges before it
concluded that an adequate remedy existed at state law 81 The
Court closely scrutinized the procedures available to the state
defendant in that case, however, essentially for due process reasons because the adjudicator was not the state judiciary "2
In 1986 the Court again expressed its unwillingness to analyze the adequacy of state proceedings in Ohio Civil Rights
75. See Perez 401 U.S. 821 (1971); Bryne, 401 U.S. 216 (1971).
76. Yet, there are reasons for questioning the adequacy of state court proceedings.
The Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution as well as the private cause of action granted by 42 U.S.C. § 1983 are testimony to
the inability of some state judiciaries to adequately protect constitutional rights and to
fairly adjudicate matters before them.
A number of commentators question the fungibility of state and federal courts in
adjudication of constitutional disputes. See Neuborne, The Mythe of Panty, 90 Harv. L.
Rev. 1105 (1977); Redish, The Doctrine of Younger v. Harris:Deference in Search of a
Rationale, 63 Cornell L. Rev. 463, 477-78 (1978).
77. 442 U.S. 415 (1979).
78. Id. at 415-17.
79. Id. at 424-28.
80. 457 U.S. 423 (1982).
81. Id.
82. Id.
1990]
YOUNGER ABSTENTION DOCTRINE
83
Comm'n v. Dayton Christian Schools, Inc. Stating that it had
"no reason to doubt that Dayton [would] receive an adequate
opportunity to raise its constitutional claims," 8 the Court automatically assumed the legal sufficiency of that proceeding.
In Pennzoil Co. v. Texaco, Inc., 5 Justice Powell abandoned
traditional equitable inquiry and gave the adequate remedy
standard such a broad reading as to render it virtually incapable
of ever serving as grounds for a federal court injunction.
Pennzoil involved an appeal by the Pennzoil Company from a
Second Circuit decision 6 upholding a federal district court injunction8 7 which restrained Pennzoil from enforcing a Texas
court judgment against Texaco, Inc. Prior to the federal proceedings, Pennzoil had brought suit against Texaco in a Texas
trial court for tortious interference with a contract that Pennzoil
had with Getty Oil Co."8 Appellant Pennzoil obtained a jury verdict in the amount of $10.53 billion in the state court suit.s9
Before the trial court actually entered its judgment, 9 Texaco
filed a Section 1983 action in the United States District Court
for the Southern District of New York seeking to enjoin
Pennzoil from taking any action to enforce the judgment. The
District Court issued the injunction." On appeal, the Court of
Appeals for the Second Circuit affirmed. 2
The United States Supreme reversed, holding that the District court "should have abstained under the principles of feder9 3 Writing for the Court,
alism enunciated in Younger v. Harris."
Justice Powell rested the Court's decision on two grounds. First,
Justice Powell embarked on a state interests analysis under the
"Our Federalism" branch of the Younger abstention doctrine.9 4
83. 477 U.S. 619 1986). This case involved a state administrative proceeding. Id.
84. Id. at 620.
85. 481 U.S. 1, 107 S. Ct. 1519.
86. 784 F.2d 1133 (2d Cir. 1986).
87. 626 F Supp. 250 (S.D.N.Y. 1986).
88. Pennzoil Co., 107 S. Ct. at 1521-22.
89. Id. at 1521.
90. Id. at 1521, 1523, 1524; Texaco Inc. v. Pennzoil Co., 626 F Supp. 250 (S.D.N.Y.
1986).
91. Texaco, Inc., 626 F Supp. 250 (S.D.N.Y. 1986).
92. 784 F.2d 1133 (2d Cir. 1986).
93. Pennzoil Co., supra note 95, at 1523.
94. Pennzoil Co., 107 S. Ct. at 1525-27.
A review of Younger v. Harris, 401 U.S. 37 (1971), and its progeny indicated to
Justice Powell that a federal court should abstain regardless of the civil or criminal na-
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With respect to the second leg of Younger abstention - "the basic doctrine of equity jurisprudence that courts of equity should
when the moving party has an adequate remedy at
not act.
5
Justice
Powell concluded that Texaco had not successlaw"
fully demonstrated that Texas procedural law barred its constitutional claims thereby rendering its state law remedies madequate for the purposes of Younger abstention. 96 Stating that
"when a litigant has not attempted to present his federal claims
in related state court proceedings. .federal court[s] should assume that state procedures will afford an adequate remedy,"9
Justice Powell indicated that the mere possibility of an adequate
remedy at state law would satisfy the requirements of equity
The Court, although sitting as a court of equity, would not embark upon such an equitable analysis itself.
Amazingly, in none of the Younger abstention cases did the
Supreme Court seek to learn of the existence of state statutes
offering declaratory or injunctive relief. The presence of such
statutes would have furnished the litigant with an adequate
state law remedy and would have made a federal proceeding obviously unnecessary This is perhaps the best example of the
Court's failure to apply equitable principles despite its statements to the contrary 98
ture of a pending state proceeding "if the State's interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between
the States and the National Government." Pennzoil Co., 107 S. Ct. at 1526. Quoting a
passage from Juidice v. Vail, 430 U.S. 327 (1977), concerning the importance of the contempt process in vindicating the authority of the state judicial system, Justice Powell
concluded that a state's interest in the smooth functioning of its judiciary was also at
stake in the case. Pennzoil Co., 107 S. Ct. at 1527. Specifically, Justice Powell found that
"[t]here is little difference between the State's interest in forcing persons to transfer
property in response to a court's judgment and in forcing persons to respond to the
court's process on pain of contempt." Id.
Justice Powell was referring to the writ of execution which Pennzoil was eligible to
secure from the clerk of the court that issued the judgment if such a writ was necessary
to enforce the judgment of the court. The writ is "[a]ddressed to any sheriff or constable
in the State of Texas" and directs "the official to levy on a debtor's non-exempt real and
personal property, within the official's county." 5 W Dorsan, Texas Litigation Guide §
132.0211, p. 132-37 (1987); see also Pennzoil Co., 107 S. Ct. at 1522. In the event that
Texaco posted a supersedeas bond, Pennzoil would be prevented from executing the
judgment. Id. at 1523.
95. Id. at 1525.
96. Id at 1527-29.
97. Id. at 1528.
98. The board thesis of this article is that, given our constitutional scheme and the
1990]
YOUNGER ABSTENTION DOCTRINE
Criticism of the Court's abbreviated approach to equity
law's adequate remedy standard may appear contrived to some.
After all, it may be argued, what legitimate reason is there for
the United States Supreme Court not to assume that a state
court will adequately entertain a state defendant's constitutional
claims9 The fact situation found in Tratnor v. Hernandez9 9
reveals the dangers inherent in such a cavalier approach toward
equitable inquiry
Trainor involved a constitutional challenge to a state writ of
attachment issued against the federal plaintiffs for the return of
funds fraudulently procured from a state public assistance program. 10 0 The Supreme Court in that case should have looked
more closely at the state legislative scheme which was subject to
the plaintiffs' constitutional challenge. Instead, the Court dwelt
' It fell
at length upon the state interests implicated by the suit.101
to Justice Stevens, in his dissent, to investigate the state attachment scheme and to analyze the permissibility of bringing a constitutional challenge against one of its provisions. Justice Stevens determined that Section 28 of the Illinois Attachment
Act '0 2 permitted a defendant only to contest the "truth of the
facts alleged in the affidavit or the adequacy of the attachment
existing scope of judicial discretion, federal courts may not abstain on federalism
grounds alone. This conclusion calls into question much of the Younger abstention doc
trine. Yet, there are also other more narrow grounds for rejecting Younger abstention or
at least questioning its advisability. The placement of principles of equity and federalism
side by side within the confines of a single doctrine serves the interests of neither factor
and may lead to potentially troublesome results. The Court's use of the state interests
analysis of "Our Federalism" within the framework of equity law obscures the character
and purpose of equity and threatens to reduce equity's effectiveness as a remedy in the
other areas of the law in which it functions. Federalism and equity dictate the use of
separate inquires. A court which addresses the values of federalism must inquire into the
importance of the state interests infringed upon; a court sitting in equity looks for irreparable injury, the adequacy of other available remedies and the substantiality and imminence of harm. Equity is a supplemental remedy designed to render justice to a particular litigant where the law is otherwise inadequate. By necessity the equitable inquiry is a
specialized one and the outcome is to a large extent tied to the particular facts of the
case. See McClintock, Equity, supra note 35. For the Court to continue to rest its considered conclusions about the proper balance of power between the state and federal
governments on a system of law which holds out the possibility of a new outcome with
each new litigant would be an ill-advised strategy at best.
99. 431 U.S. 434 (1977).
100. Id. at 434-36.
101. Id. at 436-42.
102. Ill.
Rev. Stat., ch. 11, § 27 (1973).
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bond."10' 3 Section 28 "preclud[ed] consideration of any other issues. '"104 Consequently, Justice Stevens concluded that the pending state proceeding did not afford the federal plaintiffs an adequate remedy at law because, according to Section 28 of the
Illinois Attachment Act, the federal plaintiffs would not be per10 5
mitted to raise their constitutional claims.
C.
"Our Federalism" Beyond the Scope of Equitable Inquiry
In Younger, the Supreme based its use of equitable doctrines on its asserted need to address federal-state relations. The
Court openly acknowledged that the standards of equity that it
applied in that case were originally created to address problems
particular to the British judicial system.106 Nonetheless, the
Court proceeded to press principles of equity into the service of
"Our Federalism.' 0 7 The Court's swift handling of equitable
concepts in Younger seemed to imply that these standards were
mere verbal formulas without legal content. As has been shown
at length above, 08 by the time of its introduction into the American judicial system through a provision in the United States
Constitution01 and subsequently through a federal jurisdictional
statute, 110 equity law consisted of a series of highly developed
legal doctrines"' with a centuries-long history
This history indicates that equitable doctrines have never
addressed such systemic factors as federalism and comity 12 At
most, courts sitting in equity addressed inter-judicial or intergovernmental tensions only inadvertently through the resolution
of individual disputes. Thus, equity law does not provide a legitimate basis of support for the continued existence and use of the
Younger abstention doctrine. Nonetheless, one esteemed commentator, Professor David Shapiro of Harvard, has based his
103. Trainor, 431 U.S. at 467 (1977).
104. Id.
105. Id.
106. Younger, 401 U.S. at 44.
107. See supra notes 64-68 and accompanying text.
108. See supra notes 35-62 and accompanying text.
109. See U.S. Const. art. III, § 1; see also supra note 56 and accompanying text.
110. Act of Sept. 24, 1789, ch. 20, §16, 1 Stat. 82; see supra note 61 and accompanying text.
111. See supra notes 35-62 and accompanying text.
112. See supra notes 35-62 and accompanying text.
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YOUNGER ABSTENTION DOCTRINE
support of the Younger abstention doctrine in part on an analysis of the history of equity Professor Shapiro perceives the
Younger abstention doctrine as merely a manifestation of what
he mistakenly believes is equity law's traditional concern with
comity and federalism issues."' l
Professor Shapiro cites 14 two British cases1 15 in support of
his view that courts sitting in equity routinely took federalism
and comity concerns into account in rendering their decisions."'
In the first case, CarronIron Co. v. Maclaren,"7 the executors of
Henry Stainton's estate sought an injunction in England against
prosecution of a creditor's suit by the Carron Iron Company in
the Court of Sessions in Scotland.' The Carron Iron Company,
a Scotch company, alleged that Stainton, the deceased testator,
owed the Company money at the time of his death.1 9 Stainton's
possessions included real and personal property in both England
and Scotland. 20 The Lord Chancellor in England denied the injunction against the Scotch proceeding on the ground that the
Company had not "come in under the decree [distributing the
estate], so as to obtain payment partially from the English assets."'' If the Company had "come in under the decree," the
facts of CarronIron Co.' 2 2 would have fit the paradigm situation
for enjoining a litigant from instituting parallel proceedings in
other courts on the ground that such suits constituted harassment. 12 3 The Lord Chancellor in fact discussed a number of
cases illustrating that fact situation. 24 However, since the facts
of Carron Iron Co. did not fit this paradigm scenario, the Company had a right to sue in Scotland.' 2 5
113. See Shapiro, Jurisdictionand Discretion,60 N.Y.U.L. Rev. 543 (1985) [hereinafter Shapiro, Discretion].
114. Id. at 581.
115. Carron Iron Co. v. MacClaren, 10 Eng. Rep. 961 (H.L. 1855); Cohen v.
Rothfield, [19191 1 K.B. 410 (C.A. 1918).
116. See Shapiro, Discretion, supra note 113, at 580-85.
117. 10 Eng. Rep. 961 (H.L. 1855).
118. Id.
119. Id.
120. Id.
121. Carron Iron Co., 10 Eng. Rep. at 972.
122. Id. at 961.
123. Id. at 970-73.
124. Id.
125. Carron Iron Co., 10 Eng. Rep. at 970-73.
Relying on a point of agency law, Lord Brogham concurred in the judgment on the
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In the course of this seemingly inconsequential opinion, the
Lord Chancellor stated that "if the circumstances."are such as
would make it the duty of the Court to restrain a party from
instituting proceedings in this country, they will also warrant it
in restraining proceedings in a foreign court." '26 Professor Shapiro finds great significance in this passage and claims that
"[t]he Lord Chancellor. .said that circumstances that would
make it the duty of a Court to restrain proceedings domestically
would only warrant the restraint of proceedings in a 'foreign'
court.11 2 7 It is clear from the Lord Chancellor's own words that
he meant to imply no difference in obligation by his use of the
words "duty" and "warrant." As was shown above, the injunction was denied on other grounds. 128 Professor Shapiro thus
grossly misconstrues the import of the Lord Chancellor's statement. Professor Shapiro also misconstrues the character and status of the Scottish court in the eyes of the Chancery division of
England.
The Scottish court was considered a foreign court.1 2 ' To assist them in resolving the case, the majority and dissent cite and
discuss an abundant number of cases and hypotheticals from international law 130 Thus, far from supporting Professor Shapiro's
argument that English courts of equity took comity concerns
into account in rendering their decisions, the Carron Iron Co.
decision lends support to the opposite proposition since the English court in that case had an opportunity to decide the case on
such a ground and did not.
In the second case that Professor Shapiro relies upon, Cohen v. Rothfield,1 31 a moneylender named Cohen, who had
brought suit in England against his former employee Rothfield,
attempted to have the English court enjoin Rothfield from
bringing a suit in Scotland based on the same set of transactions.1 3 2 Having concluded that Cohen had not shown that the
ground that there was no good service upon the company in England concerning the
issuance of the injunction. Id. at 973-74.
126. Id. at 971.
127. Shapiro, Discretion,supra note 113, at 581.
128. See supra notes 121-25 and accompanying text.
129. See Carron Iron Co., 10 Eng. Rep. at 971 (H.L. 1855).
130. Id.
131. [1919] 1 K.B. 410 (C.A. 1918).
132. Id.
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YOUNGER ABSTENTION DOCTRINE
Scotch suit was vexatious, the Court of Appeal declined to issue
the injunction."' 3
Professor Shapiro's cursory analysis again does not do justice to the case under scrutiny Professor Shapiro indicates that
the Court of Appeals believed a higher standard was required
for the issuance of injunctive relief against suits brought in other
nations of the commonwealth.3 Professor Shapiro seems to believe that considerations of comity were responsible for the
Court's view 135 In point of fact, the Court required the plaintiff
to meet a higher standard of proof regarding vexatiousness or
harassment in such cases because the English courts themselves
know less about other court systems and the advantages that use
of such systems may or may not yield. ' As support for its
heightened standard, the Court of Appeals gave an exhaustive
list of Commonwealth nations that had unique, and sometimes
exotic, legal systems. 37
In omitting an explanation and analysis of the entire opinion, Professor Shapiro improperly inflates the significance of the
court's comment, made early in the opinion, that it wanted "to
avoid even the appearance of undue interference with another
Court. 138 As British legal history and the cases discussed above
make clear, issues of federalism and comity do not lie within the
province of a court of equity's concern.
III.
"OUR FEDERALISM"
A close reading of Younger indicates that the sources of the
Court's authority to abstain under the doctrine of "Our Federalism" are, to the Court at least, unclear. The Court begins Part II
of its opinion by recounting two hundred years of federal jurisdictional legislation.' 3 9 The Court traces the evolution of the
Anti-Injunction Act from 1793 to the present day "40 This legislative history, according to the Court, "graphically illustrates
133. Id. at 416.
134. Id. at 414-16.
135. See Shapiro, Discretion, supra note 123, at 581.
136. Cohen, [19191 1 K.B. 413-16.
137. Id. at 415 (The Court of Appeals mentions the legal systems of South Africa,
Mauritius, Quebec, Malta and Scotland).
138. Id at 413; see Shapiro, Discretion, supra note 123.
139. Younger, 401 U.S. at 43.
140. Id.
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how few and minor" are the exceptions from the Anti-Injunction
Act's general prohibition "against federal court interference with
'
state court proceedings."141
The Court established the relevance of this congressional
provision to the issue at hand, but refused to announce "Our
Federalism" as an interpretation of the Anti-Injunction Act. At
the conclusion of his opinion for the Court, Justice Black stated:
We have no occasion to consider whether 28 U.S.C. § 2283, which prohibits an injunction against state court proceedings 'except as expressly authorized by Act of Congress' would in and of itself be controlling under the circumstances of this case."" Furthermore, Justice
Stewart, in his concurring opinion, reaffirms the fact that the Court's
decision was based "on policy grounds" which did "not reach any
questions concerning the independent force of the federal anti-injunc43
tion statute.'
Later in the opinion the Court attempts to find support for
"Our Federalism" in the debates of the Founders.
[O]ne 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."'
Here too, the Court has run amok for several reasons. First, the
Court should be roundly criticized for its highly selective presentation of the debates at the Federal Convention. For reasons
that can, in hindsight, only appear self-serving, the Court does
not provide a single historical or academic source for its summary of the decisions reached at the Federal Convention. 145 Had
it squarely confronted the thoughts of the Framers with regard
to this issue, the Court would have found little or no role for
itself in this area.1 4 The speeches and writings of the Founders
strongly suggest that the authors of the Constitution intended to
141.
142.
143.
144.
145.
146.
Id.
Id. at 54.
Younger, 401 U.S. at 55.
Id. at 44.
Id. at 44-45.
See infra notes 148-61 and accompanying text.
1990]
YOUNGER ABSTENTION DOCTRINE
vest Congress with the sole authority to regulate federal-state
relations.47
In Garcia v. San Antonio Metropolitan Transit Authority, ' 8 a landmark case in federal-state relations rendered in
1984, the Supreme Court presented the thinking of the Framers
on this issue in extensive detail.1 49 According to the Court in
Garcia, the historical record clearly indicates that federal-state
relations are to be regulated by the structure of the Constitution
itself. ' 50 In the words of James Madison, which were cited with
approval by the Garcia Court:
Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress
could not exercise it; if given, they might exercise it, although it
should ' interfere with the laws, or even the Constitution of the
States.
Concerned with safeguarding the "residuary and inviolable
sovereignty" 152 of the states, the Framers made the states the
organizing principle of the federal Constitution. For example,
under the Constitution, the states have a role in the selection of
both the executive and the legislative branches of the federal
government. 153 Pursuant to the Constitution, each state has the
154
right to send two of its citizens to the United States Senate.
The popularly elected House of Representatives is also subject
to the influence of state and local interests.1 5 5 The states also
play a role in the selection of the President through the operation of the electoral college. 56 Thus, the values of federalism
and the sovereign interests of the states are entrusted under the
Constitution to "the federal political process."157
The words of the Framers and the Constitution they created
147. See infra notes 148-61 and accompanying text.
148. 469 U.S. 528 (1984).
149. Id. at 547-57.
150. Id.
151. 2 Annals of Cong. 1897 (1791), quoted in Garcia, 469 U.S. at 549.
152. The Federalist No. 39, p. 285 (J. Madison) (B. Wright ed. 1961), quoted in
Garcia, 469 U.S. at 550.
153. See infra notes 154-56 and accompanying text.
154. U.S. Const. art. I, § 3, cl. 1.
155. U.S. Const. art. I, § 2.
156. U.S. Const. art. II, § 1.
157. Garcia, 469 U.S. at 552.
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strongly militate against the approach taken by the Supreme
Court in Younger In Younger, the United States Supreme
Court arrogated to itself the right to strike the balance between
state and federal court jurisdiction over suits involving constitutional or other federal rights. In point of fact however, the federal judiciary is not the master of its own jurisdictional powers.
The Constitution specifically grants to Congress the authority to
determine the scope of the Supreme Court's appellate jurisdiction1 58 as well as the jurisdiction of the lower federal courts. 159
As a result, Congress has the final word with regard to federalism issues by virtue of its Constitutional power over federal jurisdiction itself. Thus, the provisions of the Constitution clearly
suggest that it is for Congress, not the Supreme Court, to strike
the balance with regard to federal-state relations. The Younger
opinion may be properly criticized for largely ignoring"'0 a
wealth of historical evidence' on this topic. As the Court's decision in Garcia demonstrates, the Supreme Court was well aware
of the thinking of the Framers on this issue.
Even more troubling and inexcusable perhaps is the fact
that the Supreme Court plainly considers both Younger and
Garcia to be good law 162 A strong argument can be made that
Garcia overruled Younger and the aggressive judicial attitude
toward federalism concerns represented by the latter case. In
Garcia, the Court was similarly confronted with the issue of the
scope of state and federal authority Specifically, the Court was
158. See U.S. Const. art. III, § 2.
159. See U.S. Const. art. III, § 1.
160. Younger, 401 U.S. at 44-45.
161. See supra notes 147-57 and accompanying text.
162. The Court recently upheld both decisions. Pennzoil Co. v. Texaco, Inc., 481
U.S. 1 (1987) and Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S.
619 (1986) were decided using the Younger abstention doctrine. For a discussion of these
cases, see supra notes 83-98 and accompanying text. The Court stood by its decision in
Garcia in State of South Caroline v. James A. Baker, III U.S. -,
108 S. Ct. 1355
(1988) [hereinafter Baker]. The Baker case involved a challenge by South Carolina to
Section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982. Section 310
(b)(1) removed the federal income tax exemption for interest earned on publicly offered
long-term bonds issued by state and local governments unless those bonds are issued in
registered form. Id. at 1358. Founding its decision on the rule of Garcia, the Baker Court
held that Section 310(b)(1) did not violate the Tenth Amendment or constitutional principles of federalism by effectively compelling States to issue bonds in registered form. Id.
at 1360-61. The Court also held that this provision did not violate the doctrine of intergovernmental tax immunity. Id. at 1366-68.
1990]
YOUNGER ABSTENTION DOCTRINE
asked to determine the applicability of the minimum wage and
overtime requirements of the Fair Labor Standards Act to a municipal public mass-transit authority 163 Unlike the Younger
Court, the Court in Garcia declared that such questions of federalism were conclusively committed by the Constitution to a coordinate branch of government, namely, the United States Congress. Thus, the Garcia Court declared federalism issues off
limits to the federal judiciary '"
The Supreme Court nonetheless continues to uphold both
lines of decision. The Court has recently decided two more cases
under the Younger abstention doctrine and recently reaffirmed
its decision in Garcia in Baker 165
As has been demonstrated, 6 the Supreme Court has not
provided a legal foundation for the existence of "Our Federalism." "Our Federalism" does not find support in the historical
record, the debates at the Constitutional Convention, or provisions of the United States Constitution itself." 7 Furthermore, as
the Court has itself admitted, "Our Federalism" does not constitute a judicial interpretation of federal jurisdictional legislation. 168 The two primary rationales for the Younger abstention
doctrine - equity and "Our Federalism,"- do not in fact support the use of that doctrine. Nonetheless, although the Supreme Court has articulated only two grounds of support for its
continued use of the Younger abstention doctrine, all reasonable
grounds of support for that doctrine will now be analyzed in order to demonstrate the complete conceptual bankruptcy of the
Younger decision.
A.
Other Forms of Judicial Discretion
It has been shown that federalism and comity concerns as
expressed by the doctrine of "Our Federalism" are beyond the
163. Garcia, 469 U.S. at 530-36.
164. See supra notes 148-57 and accompanying text.
Prof. Tushnet, in an article that predates the Court's decision in Garcia, discusses the
competing views of federalism that are embodied in Younger and other Supreme Court
decisions. See Tushnet, Constitutional and Statutory.Analyses in the Law of Federal
Jurisdiction, 35 UCLA L. Rev. 1301.
165. See supra note 162 and accompanying text.
166. See supra notes 139-61 and accompanying text.
167. See supra notes 139-61 and accompanying text.
168. See supra notes 142-43 and accompanying text.
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scope of a federal court's equitable discretion. Can the federalism branch of Younger abstention be justified as an exercise of
some other form of judicial discretion? If not, can the federalism
branch of the Younger abstehtion doctrine be justified as a relatively new, yet completely permissible, form of judicial
discretion 9
A survey of various discretionary doctrines reveals that the
federal courts wield considerable power over the mode, timing
and the location of a lawsuit. Under the doctrines of standing,
ripeness and mootness, doctrines which are often collectively referred to as doctrines of justiciability, a court may abstain from
adjudicating a dispute it is otherwise empowered to hear.16 9 Justiciability doctrines are founded upon the "case or controversy"
requirement of Article III of the United States Constitution. 170
Yet, the Supreme Court has also recognized a discretionary or
prudential component."'
The doctrine of standing focuses a court's attention upon
the litigant bringing the claim.' 7 2 The doctrine seeks to insure
"'that concrete adverseness [which] sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional questions.' ",173 Consequently, the
presentation of "abstract questions of wide public significance
169. See L. Tribe, American Constitutional Law, 69-71 (2d ed. 1988) [hereinafter
Tribe, ConstitutionalLaw].
170. U.S. Const. art. III § 2. See also Tribe, ConstitutionalLaw, supra note 169, at
69-72; Warth v. Selden, 422-U.S. 490 (1975).
171. See Tribe, ConstitutionalLaw, supra note 169, at 69-72; Warth, 422 U.S. at
500 (1975); Phillips Petroleum Co. v. Shutts, 442 U.S. 797, 805 (1985).
A lawsuit may be dismissed despite the satisfaction of all relevant constitutional
tests under the "case or controversy" requirement of Article III should prudential considerations dictate a finding of nonjusticiability. See Gladstone Realtors v. Bellwood, 441
U.S. 91, 99-100 (1979) (rule enunciated in standing context); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75
(1982) (rule enunciated in standing context); Secretary of State of Maryland v. J.H.
Munson Co., Inc., 467 U.S. 947, 955 n.5 (1984); see also Tribe, Constitutional Law,
supra note 169, at 108.
172. See Tribe, ConstitutionalLaw, supra note 169, at 108.
173. Flast v. Cohen, 392 U.S. 83, 99 (1968) (quoting Baker v. Carr, 369 U.S. 186,
204 (1962)). More recently, the Court has imputed a separation of powers rationale to
the doctrine of standing. Allen v. Wright, 468 U.S. 737 (1984). The Court stated that
doctrine was "built on a single basic idea-the idea of separation of powers." Id. at 752.
Professor Tribe notes that "significant elaboration by the Supreme Court will undoubtedly be necessary" before the Allen conception of standing is workable in the lower federal courts. Tribe, ConstitutionalLaw, supra note 169, at 109 n.25.
1990]
YOUNGER ABSTENTION DOCTRINE
which amount to generalized grievances pervasively shared," the
assertion of legal rights of third parties or the assertion of a
claim which falls outside the "zone of interests to be protected
or regulated by the statute or constitutional guarantee in question," would fail for lack of standing.1 74
The doctrine of ripeness addresses the timing of the suit. 75
The doctrine embodies two major concerns: "the fitness of the
issues for judicial decision," and "the hardship to the parties of
withholding court consideration. 1 76 The character and shape of
the ripeness doctrine remain unclear. 177 Under the principle of
ripeness, the Supreme Court has dismissed claims because they
appeared in too "abstract" a form, 78 challenged a state statute
which had not been enforced in 75 years, 79 did not properly present the federal question 8" or, the record underlying the claim
would be clarified by a pending state criminal trial.'
Mootness8 2 also involves an anal sis of the timing of the
174. See Valley Forge Christian College v. Americans United for Separation of
Church and State, 454 U.S. 464 (1982) (citations omitted). These factors are, according
to the Supreme Court, the prudential components of standing. According to the Court in
Valley Forge, Article III requires that there be an injury in fact, causation between the
injury and the challenged action which is the subject of the lawsuit, and that the injury
is of a type capable of redress by a court of law. Id.
For more information concerning the doctrine of standing, see generally, Brilmayer,
The Jurisprudence of Article III; Perspectives on the 'Case or Controversy Requirement, 93 HARV. L. REV. 297 (1979); Tushnet, The Sociology of Article III: A Response to
ProfessorBrilmayer, 93 Harv. L. Rev. 1698 (1980); Brilmayer, A Reply, 93 Harv. L. Rev.
1727 (1980); Fallon, Of Justiciabilityand Public Law Litigation Notes on the Jurisprudence of Lyons, 59 N.Y.U.L. Rev. 1 (1984); Nichol, Rethinking Standing, 72 Calif. L.
Rev. 68 (1984); L. Tribe, Choke Holds, Church Subsidies, and Nuclear Meltdowns:
Problems of Standing' in ConstitutionalChoices 99 (1985).
175. See Tribe, Constitutional Law, supra note 169, at 77; see generally, Nichol,
Ripeness and the Constitution, 54 U.Chi. L. Rev. 153 (1987).
176. Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967).
177. See Tribe, Constitutional Law, supra note 169, at 77-82.
178. See, e.g., Socialist Labor Party v. Gilligan, 406 U.S. 583, 586-88 (1972); Poe v.
Ullman, 367 U.S. 497, 504 (1961) (plurality opinion); Rescue Army v. Municipal Court,
331 U.S. 549, 575 (1947).
179. See Poe v. Ullman, 367 U.S. 497 (1961).
180. See, e.g., Mattillo v. Connecticut, 395 U.S. 209 (1969) (per curiam); Naim v.
Naim, 350 U.S. 985 (1956) (per curiam).
181. See Rescue Army v. Municipal Court, 331 U.S. 549 (1947); see generally, B.
Schwartz, Constitutional Law 28-34 (2d ed. 1979); Tribe, Constitutional Law, supra
note 169.
182. See generally, Kates & Barker, Mootness in Judicial Proceedings: Toward a
Coherent Theory, 62 Calif. L. Rev. 1385 (1974); Note, The Mootness Doctrine in the
Supreme Court, 88 Harv. L. Rev. 373 (1974).
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suit. Under the mootness doctrine, a court must determine
whether a litigant still has a "live controversy" and is still faced
with the prospect of continuous or imminent harm despite the
passage of time.1 83 Like the other justiciability doctrines previously discussed, the doctrine of mootness has inspired a multifaceted, and at times analytically unclear, body of case law 184
Simply put, mootness entails more than a simple determination
that a given controversy persists.1 85 For example, a suit has been
held not moot despite the resolution of the controversy when the
disputed matter was "capable of repetition, yet evading
review "186
Under the doctrine of forum non conventens, a court may
decline to assert jurisdiction even where authorized by statute
because of its conclusion that a more appropriate forum exists
for the litigation of the dispute. 7 First applied in the United
States in 1804,188 the doctrine traditionally has turned upon certain geographical factors including the convenience of the forum
of the parties, the citizenship of the parties, and the law to be
applied. 1 9 Thus, the doctrine is highly fact-specific and, like eq183. See Tribe, Constitutional Law, supra note 169, at 82-93; see e.g., Hall v.
Beals, 396 U.S. 45, 48 (1969) (per curiam); Powell v. McCormack, 395 U.S. 486, 496
(1969); SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 407 (1972).
184. See Tribe, Constitutional Law, supra note 169, at 82-93.
185. See Shapiro, Discretion,supra note 113, at 554-55. The mootness doctrine is
also concerned with practical considerations such as judicial economy. See Kates &
Barker, Mootness in JudicialProceedings: Toward a Coherent Theory, 62 Calif. L. Rev.
1385, 1412 (1974).
186. Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).
187. See Shapiro, Discretion, supra note 113, at 555, 557; see e.g., Gulf Oil Co. v.
Gilbert, 330 U.S. 501 (1947). In that case the Court stated that "a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general
venue statute." Id. at 507.
188. In Mason v. Ship Blaireau, 6 U.S. (2 Cranch) 240 (1804).
189. See Gulf Oil Co. v. Gilbert, 330 U.S. 501 (1947).
An interest to be considered, and the one likely to be most pressed, is the
private interest of the litigant. Important considerations are the relative ease
of access to sources of proof; availability of compulsory process for attendance
of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all
other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment
if one is obtained. The court will weigh relative advantages and obstacles to
fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex" "harass," or "oppress" the defendant by inflicting upon him
expense or trouble not necessary to his own right to pursue his remedy. But
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YOUNGER ABSTENTION DOCTRINE
uity, 19° is not capable of easily admitting broad systemic factors.
Existing doctrines of judicial discretion are incapable of directly accommodating the United States Supreme Court's federalism concerns. The judiciary has exercised discretion by relying
upon the justiciability provision of the United States Constitution. 19 1 In contrast, the Court's employment of the Younger abstention doctrine is founded on nothing more than its own freestanding notions of federalism and comity Furthermore, in
purpose and effect, these doctrines amount to little more than
judicial housekeeping. The doctrines of standing, mootness and
ripeness insure that the judiciary does not waste its energy and
resources on claims which are incapable of or are not yet ready
for judicial review Through the use of these doctrines the judiciary, in effect, helps the litigant fashion a proper complaint.
Judicial efficiency is also the primary reason for the existence of the doctrine of forum non conventens. Under that doctrine, a court will seek to determine which forum for the adjudication of a dispute is the least expensive for all those concerned.
The "private interest of the litigant[,].
.the ease of access to
sources of proof" and the burdens upon witnesses are all considered.'9 2 With regard to the administrative burden upon the system from adjudicating the suit, the doctrine of forum non conventens considers the schedule of the federal court involved, the
law to be applied in the case and the court's familiarity with and
unless the balance is strongly in favor of the defendant, the plaintiff's choice of
forum should rarely be disturbed. Factors of public interest also have a place
in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin.
Jury duty is a burden that ought not be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of
many persons, there is reason for holding the trial in their view and reach
rather than in remote parts of the country where they can learn of it by report
only. There is local interest is having localized controversies decided at home.
There is an appropriateness, too, in having the trial of a diversity case in a
forum that is at home with the state law that must govern the case, rather than
having a court in some other forum untangle problems in conflict of laws, and
in law foreign to itself.
Id. at 508-9 (footnotes omitted).
Federal courts as well as most state courts accept this formulation of the doctrine of
forum non conventens. See Stewart, Forum Non Conveniens: A Doctrine in Search of a
Role, 74 Calif. L. Rev. 1259, 1261 n.3 (1986).
190. See supra notes 112-38 and accompanying text.
191. See supra note 170 and accompanying text.
192. Gulf Oil, 330 U.S. at 508.
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ability to apply that law
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193
Comity and federalism concerns do not lie within the scope
of any of these doctrines.'9 4 Consequently, the court's use of
"Our Federalism" as a basis of decision cannot be justified as an
exercise of any of the above doctrines.
Reference to the existence of these doctrines of judicial discretion also cannot legitimize the Court's application of the federalism branch of the Younger abstention doctrine. These doctrines are different in kind from the federalism prong of
Younger abstention. Under the justiciability doctrines and
under the doctrine of forum non conveniens, a court seeks to
secure a just result for the parties involved through the proper
allocation of judicial resources and an analysis of the burdens
upon all of those who will be involved in the trial. Under the
Younger abstention doctrine, the court does more than determine the way in which it will allocate its resources among the
cases found on its docket. Through the application of the
Younger abstention doctrine, the Supreme Court seeks to preserve the values of federalism which underlie our constitutional
and governmental scheme and to preserve the balance of power
between two competing sovereigns - the individual states and
the federal government. These systemic concerns are far broader
than the concerns addressed by the doctrines analyzed above
and can derive little support by reference to the latter.
B.
Federal Common Law
Stripped of its equitable pretensions and unable to derive
support from other discretionary doctrines, the Younger abstention doctrine possibly may be viewed as a crude and ultimately
unsupportable exercise of the federal judiciary's common law
powers. 95 This assumes, of course, that Younger did not an193. Id.
194. Recently, the Court has shown a willingness to take systemic factors into ac
count, at least with respect to the doctrine of standing. In Allen v. Wright, 468 U.S. 737
(1984), the Court stated that the doctrine of standing was essentially founded upon a
separation of powers rationale. Id. at 752. It is unclear at this time whether Allen represents a new trend or merely an aberration in justiciability jurisprudence. The weight of
authority at this time denies the existence of a separation of powers concern in any of
the doctrines of justiciability. See also, supra note 173.
195. See Wells, Why Professor Redish Is Wrong About Abstention, 19 Ga. L. Rev.
1097, 1123-25 (1985) [hereinafter Wells, Abstention].
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YOUNGER ABSTENTION DOCTRINE
nounce a constitutional doctrine. 9 6 The Supreme Court's decision in Erie Railroad v Tompkins 97 in 1938 held that there is no
general federal common law Subsequent cases have established
that federal courts can make federal common law despite the
rule of Erie if there is a strong federal interest in the resolution
of a given dispute. 198 Nonetheless, according to City of Milwaukee v. Illinois & Michigan,"9 9 the federal judiciary must abstain
from creating federal common law despite the presence of a
strong federal interest in those instances in which Congress has
already addressed through legislation the subject implicated by
the suit.20 0
In City of Milwaukee, the states of Illinois and Michigan
sued Milwaukee and other cities in federal court for polluting
Lake Michigan. Their cause of action was founded upon their
assertion that the federal courts should fashion a federal common law of water pollution. The Supreme Court found a strong
federal interest in reducing and preventing interstate pollution.
Thus, Erie itself was not violated. However, the Court determined that Congress had already occupied the field of interstate
water pollution in that it had enacted the Water Pollution Control Act Amendments of 1972.201 Congress' "establishment of a
comprehensive regulatory program supervised by an expert administrative agency" prevented the federal judiciary from fashioning a federal common law of water pollution.20 2 The Erie line
of cases indicates that the Younger abstention doctrine must
satisfy a two-part analysis in order to constitute a legitimate exercise of federal common law First, the federal bench must find
a strong federal interest in the subject matter of the dispute.2 0 3
196. Although the Younger abstention doctrine has constitutional dimensions, the
Younger Court did not explicitly create a constitutional doctrine. The Court's decision in
Younger was founded upon "policy grounds" that included considerations of federalism
and comity which lie at the heart of our constitutional scheme. Younger, 401 U.S. at 55.
However, in rendering its decision, the Younger Court did not construe specific constitutional provisions.
197. 304 U.S. 64 (1938).
198. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964); United
States v. 93.970 Acres of Land, 360 U.S. 328 (1959); Clearfield Trust Co. V United
States, 318 U.S. 363 (1943); Wells, Abstention, supra note 211 at 1124.
199. 451 U.S. 304 (1981).
200. Id. at 313. Wells, Abstention, supra note 195, at 1124-25.
201. See City of Milwaukee, 451 U.S. at 317.
202. Id.
203. See supra note 198 and accompanying text.
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Second, the federal court must conclude that the national legislature has not already addressed the subject matter of the dispute through federal legislation.2 0°
It may be argued, albeit unsuccessfully, 20 5 that the Younger
abstention doctrine is, in essence, a common law rule of federal
jurisdiction over constitutional remedies. Thus, although the
Court does not itself present the doctrine in these terms, use of
the doctrine is conceptually justified.
The federal government indeed has a strong interest in enforcing federal constitutional rights and remedies. However,
with respect to the second part of the Erie-City of Milwaukee
analysis, Congress has already promulgated several statutes in
this area. Specifically, in the area of constitutional rights, Section 1983 provides that "[e]very person who" is deprived of their
federal constitutional rights "under color of any [state] statute"
shall have a right to sue the state authorities "in an action at
law, suit in equity, or other proper proceeding for redress. '20 6
Furthermore, Congress has explicitly addressed the issue of the
relationship between the federal and state judiciaries through
the Anti-Injunction Act.2 7 As a result of this legislation, the federal judiciary is precluded from legitimately creating common
law rules in this area. Thus, the Younger abstention doctrine
cannot be justified as an exercise of federal common law
IV
CONCLUSION
Like an unruly child left alone in a china shop, the Younger
abstention doctrine threatens to damage all that it touches. The
Court's gross misapplication of equitable concepts in Younger v.
Harris can only serve to muddy the waters of American equity
law During the course of its opinion the Court altered the irreparable injury standard, bypassed the fact specific inquiry dictated by equitable tenets and imparted an entirely new rationale
to that venerable body of law
204. See supra notes 199-202 and accompanying text.
205. But see Wells, AbstentLon, supra note 195, at 1125. Prof. Wells is wrong in
concluding that "Congress has never passed a comprehensive statute" regarding federal
"jurisdiction over constitutional remedies" for the reasons set forth in notes 206-07 and
accompanying text. Id.
206. 42 U.S.C. § 1983 (1988).
207. See 28 U.S.C. § 2283 (1988).
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YOUNGER ABSTENTION DOCTRINE
Historical accuracy regarding the creation of the U.S. Constitution was also poorly served in Younger The words and
deeds of the Farmers as well as the structure of the Constitution
itself demonstrate that Congress is the body entrusted with the
task of defining the relationship between the federal and state
sovereigns. The Younger decision notwithstanding, the Supreme
Court does not have the Constitutional right to present its own
personal opinion regarding the scope of federal and state authority in the guise of a judicial opinion.
The Court has at times acknowledged the limits of its au2 08
the
thority Confronted with a federalism question in Garcia,
at
the
end
Court consulted the historical record and concluded,
of an accurate and extensive Constitutional analysis, that such
decisions were conclusively committed by the Constitution to
Congress. 0 9
Engaging in a bit of judicial schizophrenia, the Court has
continued to uphold both the Younger and Garcia models for
resolving federalism issues. 1 0 In the name of consistency as well
as historical and Constitutional accuracy, it is hoped that the
Supreme Court will soon perceive the error of its ways and consign the Younger abstention doctrine to the trash heap.
208.
209.
210.
469 U.S. 528 (1984).
Id.
See supra notes 162-65 and accompanying text.