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Part 1: The Federal Judicial System
Part 1.1: The Province and Duty of the Federal Courts
1. Article III of the United States Constitution
a. Reasons for the federal judiciary
i. Effectively implement the powers of the national government
ii. Fear that state courts might not fully enforce and implement
federal policies, especially when state and federal interests
conflict
iii. Provide uniform interpretation of the Constitution and laws of
the United States
iv. Assure protection of individual liberties
v. Resolve disputes between the states
b. Role of Article III
i. Creates a federal judicial system
ii. Creates Supreme Court and permits establishment of lower
courts
iii. Assures independence of federal judiciary by according all
federal judges life tenure during good behavior and salaries
that cannot be decreased during their time in office
iv. Defines the federal judicial power in terms of nine categories of
“cases” and “controversies”
v. Allocates power between the Supreme Court and the lower
federal courts
vi. Prescribes that the trial of all crimes, except in cases of
impeachment, shall be by jury
vii. Requires that the trial shall occur in the state where the crime
was committed
2. Judiciary Act of 1789
a. Created lower federal courts
b. Established that federal courts may hear a case only if there is both
constitutional and statutory authority
c. Structured judiciary in three levels (Supreme Court/Circuit
Courts/District Courts)
d. Authorized the Supreme Court to review final judgments of state
courts where federal questions were raised and the state court
decided against the federal claim or defense
e. Granted jurisdiction to the new trial courts over suits between
citizens of different states
f. Authorized defendants in certain types of cases filed in state court to
“remove the cause for trial” to the federal court in the state
3. Marbury v. Madison and the Meaning of Article III
a. Rule: The Supreme Court has the power, implied from the
Constitution Article VI § 2, to review acts of Congress, and if they are
found to be unconstitutional, to declare them void.
b. Five important principles concerning the federal judiciary
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i. Established the power of the federal courts to review the
actions of the executive branch of government
1. No person, not even the president or executive officials,
can ignore the law
2. The judiciary could, assuming proper jurisdiction, issue
a writ of mandamus to the executive
ii. Announced that there was a category of issues, termed political
questions, that were not reviewable by the federal courts
1. Distinction between matters committed solely to the
executive’s discretion and those where an individual
right was at stake
2. Former is political question and nonjusticiable
iii. Established that Article III creates the ceiling on the Supreme
Court’s original jurisdiction, so Congress cannot authorize
original jurisdiction greater than that provided for within
Article III
1. Statute provided Supreme Court original jurisdiction,
this grant of authority was unconstitutional
2. Principle that federal courts are courts of limited
jurisdiction
iv. Established the power of the federal courts to declare federal
statutes unconstitutional
1. Constitution imposes limits on government powers and
those limits are meaningless unless subject to judicial
enforcement
2. Court’s authority to decide cases arising under the
Constitution implied the power to declare
unconstitutional laws conflicting with the basic legal
charter
v. Established the Court as the authoritative interpreter of the
Constitution [but there are alternative views]
1. No authoritative interpreter of the Constitution, each
branch of government interprets for itself
2. For each part of the Constitution, one branch of
government is assigned the role of serving as the final
arbiter of disputes as to the Constitution’s meaning, but
it is not the same branch for all parts of the Constitution
3. Judiciary is authoritative interpreter of the meaning of
all constitutional provisions
4. Central Themes of Federal Jurisdiction – Two major policy considerations
a. What is the proper role of the federal courts relative to the other
branches of government?
b. What is the proper role of the federal courts relative to the states and
especially to the state courts?
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Part 1.2: Scope of the Judicial Power
1. Subject Matter Jurisdiction: legal authority of a court to hear and decide a
particular type of case
2. Federal courts are courts of limited jurisdiction
a. Federal court may adjudicate a case only if there is both constitutional
and statutory authority for federal court jurisdiction
b. Presumption against federal court jurisdiction
c. Subject matter jurisdiction cannot be gained by consent
d. Federal courts may raise objections to subject matter jurisdiction
e. State courts have concurrent jurisdiction with federal courts over all
matters within federal jurisdiction, unless there is a specific federal
statute creating exclusive federal jurisdiction
f. If both personal jurisdiction and subject matter jurisdiction are
disputed in a case, a federal court may dismiss the matter for lack of
personal jurisdiction without reaching the limit of whether there is
subject matter jurisdiction
g. If a federal court dismisses a case, pursuant to a settlement, the court
lacks subject matter jurisdiction to have continuing involvement in
the matter
3. Federal Question Jurisdiction – Constitutional and statutory provisions
interpreted differently
a. Constitutional provision interpreted very expansively, allowing
federal jurisdiction whenever a federal law is a potentially important
ingredient in a case
b. Statutory provision, a case arises under federal law if it is apparent
from the face of the plaintiff’s complaint either
i. That the plaintiff’s cause of action was created by federal law;
or
ii. That the plaintiff’s cause of action is based on state law, but a
federal law that creates a cause of action is an essential
component of the plaintiff’s complaint
4. The meaning of “arising under” federal law for the purposes of Article III
a. Cohens v. Virginia
i. Rule: A case in law or equity consists of the right of the one
part, as well as of the other, and may truly be said to arise
under the Constitution or a law of the United States, whenever
its correct interpretation depends on the construction of
either.
ii. Divides nine categories of cases into two “classes”
1. Character of the cause, whoever may be the parties:
extends the jurisdiction of the Court to all the cases
described, without making in its terms any exception
whatever, and without any regard to the condition of
the parties
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2. Character of the parties: extends jurisdiction to the
specified parties, it is entirely unimportant what the
subject of controversy is
b. Osborn v. Bank of the United States
i. Rule: When a question to which the judicial power of the Union
is extended by the Constitution, forms an ingredient of the
original cause, it is in the power of Congress to give the Circuit
Courts jurisdiction of that cause, although other questions of
law or fact may be involved in it.
ii. Broad construction of what cases arise under federal law
(constitutional authorization of federal question jurisdiction)
5. Meaning of “arising under” federal law for purposes of the federal question
jurisdiction statute
a. Case arises under federal law if it is based on a cause of action created
by federal law
b. Even if a plaintiff does not allege a cause of action based on federal
law, there is a federal question if it is clear from the face of the
plaintiff’s complaint that a federal law that creates a cause of action or
that reflects an important national interest is an essential component
of the plaintiff’s state law claim
Part 2: Justiciability
Part 2.1: Justiciability & Advisory Opinions
1. Policies underlying justiciability requirements
a. Closely tied to separation of powers
b. Conservation of judicial resources, allowing the federal courts to focus
their attention on the matters most deserving of review
c. Intended to improve judicial decision-making by providing the federal
courts with concrete controversies best suited for judicial resolution
d. Promotes fairness, especially to individuals who are not litigants
before the court
2. Prohibition against advisory opinions
a. Separation of powers is maintained by keeping the courts out of the
legislation process
b. Judicial resources are conserved because advisory opinions might be
requested in many instances in which the law ultimately would not
pass the legislature
c. Helps ensure that cases will be presented to the Court in terms of
specific disputes, not as hypothetical legal questions
3. Criteria to avoid being an advisory opinion
a. Must be an actual dispute between adverse litigants
b. Must be substantial likelihood that a federal court decision alone in
favor of a claimant will bring about some change or have some effect
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Part 2.2: Constitutional Standing
1. Standing: determination of whether a specific person is the proper party to
bring a matter to the court for adjudication
2. Values served by limiting standing
a. Promotes separation of powers by restricting the availability of
judicial review
b. Serves judicial efficiency by preventing a flood of lawsuits by those
who have only an ideological stake in the outcome
c. Improves judicial decision-making by ensuring that there is specific
controversy before the court and that there is an advocate with a
sufficient personal concern to effectively litigate the matter
d. Serves values of fairness by ensuring that people will raise their own
rights and concerns and that people cannot be intermeddlers trying to
protect others who do not want the protection offered
3. Three constitutional requirements for standing
a. Plaintiff must allege that he or she has suffered or imminently will
suffer an injury
b. Plaintiff must allege that the injury is fairly traceable to the
defendant’s conduct
c. Plaintiff must allege that a favorable federal court decision is likely to
redress the injury
4. Injury
a. What does it mean to say that a plaintiff must personally suffer an
injury?
i. One simply does not have standing to sue in federal court
unless he can allege the violation of a right personal to him.
(Allen v. Wright)
ii. Plaintiff seeking injunctive or declaratory relief must show a
likelihood of future harm
iii. A litigant must demonstrate that it has suffered a concrete and
particularized injury that is either actual or imminent, that the
injury is fairly traceable to the defendant, and that it is likely
that a favorable decision will redress that injury. (Lujan v.
Defenders of Wildlife)
b. What types of injuries are sufficient for standing?
i. Injuries to common law rights: YES
ii. Injuries to constitutional rights: YES, with two qualifications
1. Necessary to decide which constitutional provisions
bestow rights
2. What facts are sufficient to establish such an injury
iii. Injuries to statutory rights: YES
1. BUT very broad congressional authorizations for
standing will not be allowed
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2. The Court may interpret statutes authorizing any citizen
to sue to expand standing to the maximum allowed by
Article III
iv. Other injuries sufficient to standing
1. YES: claim of an aesthetic or environmental harm,
possible diminution of water allocations, economic
harms or facing possible criminal prosecutions, loss of
right to sue in the forum of one’s choice
2. NO: claims of being stigmatized by the government’s
policy, marital happiness being adversely affected
5. Causation and redressability
a. Allen v. Wright: claim stated an injury, but denied standing based on
an absence of “causation”
b. Massachusetts v. EPA: A plaintiff has standing if it demonstrates a
concrete injury that is both fairly traceable to the defendant and
redressable by judicial relief.
c. Criticisms and defenses of this requirement
i. Undesirable because it is an improper determination to make
on the basis of the pleadings
ii. Inherently unprincipled because it depends entirely upon how
a court chooses to characterize the plaintiff’s injury
iii. Inherently unprincipled in terms of what constitutes a
sufficient likelihood of solution to justify standing
iv. Court manipulates causation and redressability based on its
views of the merits
6. Special standing problems: Organizations, legislators, and government
entities
a. Association or organization
i. May sue based on injuries to itself or based on injuries to its
members
ii. A claim that it is statistically likely that some of the party’s
members will visit the affected lands is insufficient to support
Article III standing. (Summers v. Earth Island Institute)
b. Legislators
i. Standing for injuries that they personally suffer
ii. Not standing when sued on the basis of injuries to his or her
ability to perform as a representative unless they have been
singled out for specially unfavorable treatment as opposed to
other members of their bodies or that their votes have been
denied or nullified
c. Government entities
i. May sue to protect its own interests, have standing based on
injuries suffered when they act in a proprietary capacity
ii. States and local governments have standing to challenge
interference with the performance of their duties as
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governments, but may not sue the federal government unless
to protect their own sovereign or proprietary interests
Part 2.3: Prudential Standing
1. Constitutional v. prudential requirements
a. Some of the justiciability doctrines are a result of the Supreme Court’s
interpretation of Article III of the United States Constitution
b. Other justiciability doctrines are derived not from the Constitution,
but instead from prudent judicial administration
c. Distinction is important because Congress, by statute, may override
prudential, but not constitutional, restrictions
2. Three prudential requirements for standing
a. Party generally may assert only his or her own rights and cannot raise
claims of third parties not before the court
b. Plaintiff may not sue as a taxpayer who shares a grievance in common
with all other taxpayers
c. Party must raise a claim within the zone of interests protected by the
statute in question
3. Limitation on third-party standing
a. Objectives
i. Avoid the adjudication of rights which those before the court
may not wish to assert
ii. Improves the quality of litigation and judicial decision-making
iii. Third parties themselves usually will be the best proponents of
their own rights
iv. Decisions will be improved in a concrete factual situation
involving an injury to a party to the lawsuit
b. Exception: where the third party is unlikely to be able to sue
i. If there are substantial obstacles to the third party asserting
his or her own rights and
ii. If there is reason to believe that the advocate will effectively
represent the interests of the third party
c. Exception: close relationship between plaintiff and third party
i. It is generally appropriate to allow a physician to assert the
rights of women patients as against governmental interference
with the abortion decision. (Singleton v. Wulff)
ii. The general rule is that a party must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties. However, there may be
circumstances where it is necessary to grant a third party
standing to assert the rights of another, but this exception is
limited by requiring that a party seeking third-party standing
make two additional showings: (1) whether the party asserting
the right has a “close” relationship with the person who
possesses the right, and (2) whether there is a “hindrance” to
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the possessor’s ability to protect his own interests. (Kowalski v.
Tesmer)
4. Prohibition against generalized grievances
a. Prevents individuals from suing if their only injury is as a citizen or a
taxpayer concerned with having the government follow the law
b. Where a harm is concrete, though widely shared, the Court has found
injury in fact
c. Unclear whether this is based on constitutional or prudential
considerations
d. Sequence of Decisions
i. Flast v. Cohen: A federal taxpayer must still have the personal
stake and interest that impart the necessary concrete
adverseness to such litigation so that standing can be
conferred on the taxpayer qua taxpayer consistent with the
constitutional limitations of Article III.
ii. Logical nexus between the status asserted by the litigant and
the claim he presents
1. Taxpayer must establish a logical link between that
status and the type of legislative enactment attacked
2. Taxpayer must establish a nexus between that status
and the precise nature of the constitutional
infringement alleged
iii. Court has been more generous in conferring standing based on
municipal taxpayer status
iv. Hein v. Freedom from Religion Foundation, Inc.: The party who
invokes taxpayer standing must be able to show not only that
the statute is invalid but that he has sustained or is
immediately in danger of sustaining some direct injury as the
result of its enforcement, and not merely that he suffers in
some indefinite way in common with people generally. In Flast
v. Cohen, this Court recognized a narrow exception to the
general rule against federal taxpayer standing: a plaintiff
asserting an Establishment Clause claim has standing to
challenge a law authorizing the use of federal funds in a way
that allegedly violates the Establishment Clause.
5. Requirement that plaintiff must be within zone of interests protected by the
statute
a. Applies when a person is challenging an administrative agency
regulation that does not directly control the person’s actions
b. Court is inconsistent about whether it is a standing requirement
c. Likely applies only in cases under the Administrative Procedures Act
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Part 2.4: Ripeness
1. Whether there is a controversy between the parties that requires
adjudication, or whether there are contingencies that might avoid the need
for the courts to intervene
2. Standing focuses on whether the type of injury alleged is qualitatively
sufficient to fulfill the requirements of Article III and whether the plaintiff
has personally suffered that harm, whereas ripeness centers on whether that
injury has occurred yet
3. When a party may seek pre-enforcement review of a statute or regulation
4. Ripeness asks whether there is a controversy between the parties that
requires adjudication and has two components: (1) the fitness of the issues
for judicial decision and (2) the hardship to the parties of withholding court
consideration. (Doe v. Bush)
5. Criteria for determining ripeness (both must be met)
a. Hardship to the parties of withholding court consideration
i. Hardship from choice between possibly unnecessary
compliance and possible conviction
ii. Hardship where enforcement is certain
iii. Hardship because of collateral injuries
iv. Hardship is a prerequisite for ripeness
v. The mere existence of a state penal statute would constitute
insufficient grounds to support a federal court’s adjudication of
its constitutionality in proceedings brought against the State’s
prosecuting officials if real threat of enforcement is wanting.
(Poe v. Ullman)
b. Fitness of issues for judicial decision: is there significant gain to
waiting for an actual prosecution?
Part 2.5: Mootness
1. Whether the controversy between the parties has ended in such a manner
that there remains no useful relief that a court could give
2. Doctrine that assures that standing and ripeness continue to exist from the
time the lawsuit is filed until its final resolution
3. Procedurally, mootness can be raised by a federal court on its own at any
stage of the proceedings
4. Circumstances that might cause a case to be moot
a. Criminal defendant dies during appeals process or civil plaintiff dies
where cause of action does not survive death
b. Parties settle the matter
c. Challenged law is repealed or expires
5. Three “critical” differences between standing and mootness
a. Allocation of the burden to prove that a case is justiciable when a
defendant voluntarily ceases the offending behavior
b. While mootness doctrine permits the Court to hear some issues that
have become moot, but standing admits no similar exceptions
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c. Purposes behind the doctrines differ
6. Exceptions to the mootness doctrine
a. Collateral consequences: some injury remains that could be redressed
by a favorable federal court decision
i. Criminal cases: when the defendant continues to face adverse
consequences of the criminal conviction
ii. Civil cases: so long as the plaintiff continues to suffer some
harm that a favorable court decision
b. Wrongs capable of repetition yet evading review
i. Injuries that occur and are over so quickly that they always will
be moot before the federal court litigation process is
completed
ii. Two requirements
1. Injury must be of a type likely to happen to the plaintiff
again
2. Must be a type of injury of inherently limited duration
so that it is likely to always become moot before federal
court litigation is completed
iii. Examples: court orders imposing prior restraints on speech,
pregnancy, challenges to election laws
c. Voluntary cessation
i. Not to be dismissed as moot if the defendant voluntarily ceases
the allegedly improper behavior but is free to return to it at
any time
ii. A case may be mooted by the defendant’s voluntary conduct is
subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.
(Friends of the Earth, Inc. v. Laidlaw Environmental Services,
Inc.)
iii. Statutory change: normally enough to render a case moot, even
though the legislature possesses the power to reinstate the
allegedly invalid law after the lawsuit is dismissed
iv. Compliance with a court order: renders a case moot only if
there is no possibility that the allegedly offending behavior will
resume once the order expires or is lifted
d. Class actions
i. Properly certified class action suit may continue even if the
named plaintiff’s claims are rendered moot
ii. An action brought on behalf of a class does not become moot
upon expiration of the named plaintiff’s substantive claim,
even though class certification has been denied. The proposed
representative retains a “personal stake” in obtaining class
certification sufficient to assure that Article III values are not
undermined. (United States Parole Commission v. Geraghty)
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Part 2.6: Political Question
1. Certain allegations of unconstitutional government conduct should not be
ruled on by the federal courts even though all the jurisdictional and other
justiciability requirements are met
2. Subject matter that the Court deems to be inappropriate for judicial review
3. Why is this doctrine confusing?
a. “Political question doctrine” is a misnomer, the federal courts deal
with political issues all of the time
b. Court has defined it very differently over the course of American
history
c. Court has failed to articulate useful criteria for deciding what subject
matter presents a nonjusticiable political question
4. Reasons for this doctrine
a. Accords the federal judiciary the ability to avoid controversial
constitutional questions and limits the courts’ role in a democratic
society
b. Allocates decisions to the branches of government that have superior
expertise in particular areas
c. Federal courts’ self-interest disqualifies them from ruling on certain
matters
d. Separation of powers grounds, minimizes federal intrusion into the
operations of the other branches of government
5. Criticisms of this doctrine
a. Judicial role is to enforce the Constitution, it’s inappropriate to leave
constitutional questions to the political branches of government
b. Judiciary’s fragile legitimacy
c. Confuses deference with abdication
6. Constitutional or prudential?
a. Constitutional if thought to be based on separation of powers or
textual commitment to other branches of government
b. Prudential if it reflects the Court’s concerns about preserving judicial
credibility and limiting the role of an unelected judiciary in a
democratic society
7. Example: impeachment and removal from office
a. A controversy is “nonjusticiable” (involves a political question) when
there is a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it. (United States
v. Nixon)
b. Leaves open the question of whether all challenges to impeachment
are nonjusticiable political questions
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Part 3: Congress and the Courts
Part 3.1: Supreme Court Appellate Jurisdiction & Judicial DecisionMaking
1. What is Congress’ power over federal court jurisdiction?
a. If Article III = floor of federal jurisdiction, then minimum jurisdiction
that must be vested in federal courts, then the federal courts must be
able to hear all of the matters described in Article III. Congress might
add to the list, but cannot subtract from it.
b. If Article III = ceiling, the maximum jurisdiction allowed, then
Congress might remove matters from federal court authority but
cannot add to it.
c. If Article III = both floor and ceiling, then federal courts must be able
to hear all matters outlined in Article III, but no more, so Congress can
neither add to nor subtract from federal jurisdiction under this view.
d. If Article III ≠ floor or ceiling, then it is simply an initial allocation and
Congress may add to or subtract from federal court jurisdiction as it
deems appropriate
2. Most jurisdiction stripping is meant to achieve a change in the substantive
law by a procedural device, constitutionality uncertain
a. Doubts about the constitutionality of jurisdictional limitations
partially account for Congress’s failure to adopt such statutes
b. Federal courts undoubtedly would have jurisdiction to decide the
constitutionality of statutes denying federal courts the authority to
hear particular types of cases
3. Congressional Restriction of the Jurisdiction of the Supreme Court
a. Supporters of jurisdiction stripping claim that the unambiguous
language of Article III authorizes Congress to create exceptions to the
Supreme Court’s jurisdiction and such exceptions include the ability
to preclude review of particular topics
i. Congress has the authority to withhold appellate jurisdiction
from the Supreme Court at any time. (Ex parte McCardle)
ii. McCardle can be distinguished because the Supreme Court was
considering the constitutionality of a statute that did not
completely preclude Supreme Court review, but rather only
eliminated one of two bases for its authority (habeas corpus to
federal prisoners)
b. Opponents of jurisdiction stripping proposals take a very different
view of the language of Article III
i. Some argue that the term “exceptions” in Article III was
intended to modify the word “fact”
ii. Others argue that even though Congress is given the authority
to limit Supreme Court jurisdiction under the text of Article III,
this power (like all congressional powers) cannot be used in a
manner that violates the Constitution
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iii. The 1870 proviso was unconstitutional, and Congress has
exceeded its power by invading the province of the judicial
branch by prescribing the rule of decision in a particular cause.
(United States v. Klein)
1. Opponents to jurisdiction stripping argue that Klein
establishes that Congress may not restrict Supreme
Court jurisdiction in an attempt to dictate substantive
outcomes
2. Supporters of jurisdiction stripping argue that Klein
establishes only that Congress may not restrict Supreme
Court jurisdiction in a manner that violates other
constitutional provisions
iv. Robertson v. Seattle Audobon Society: Supreme Court read Klein
as applying in a situation where Congress directs the judiciary
as to decision-making under an existing law and not applying
when Congress adopts a new law
Explanation of Klein
New rule during pending case
Intended to affect case
Favors one party
Favors the government
Gives different effect to evidence
Dictates law to interpret the Constitution
Dictates results without changing law (legislative
deception)
Compels judiciary to act against its judgment
Viable?
No (Schooner Peggy)
No (Robertson/Wheeling Bridge)
No (Robertson)
No (Miller)
Yes
Yes
Yes
c. Plaut v. Spendthrift Farm, Inc.
i. Rule: Congress may not retroactively command the federal
courts to open final judgments. When a new law makes clear
that it is retroactive, an appellate court must apply that law in
reviewing judgments still on appeal that were rendered before
the law was enacted, and must alter the outcome accordingly.
ii. Separation of powers violation because the statute overturned
a Supreme Court decision and gave relief to a party that the
Court had said was entitled to none
iii. Distinguished from Klein because Plaut did not involve any
attempt by Congress to strip the federal court of jurisdiction
d. Miller v. French
i. The automatic stay of the statute does not unconstitutionally
“suspend” or reopen a judgment of an Article III court.
ii. An injunction is not the last word of the judicial department
because it is always open to modification.
iii. Congress can change the substantive law and require that
injunctions be modified to be in accord with the new law.
iv. Distinguished from Klein based on this change in the
substantive law
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4. Policy Arguments and Responses
a. Supporters of proposals to limit Supreme Court jurisdiction under the
“exceptions and regulations” clause argue that such congressional
power is an essential democratic check on the power of an unelected
judiciary
b. But this argument is based on a misdefinition of democracy and is
inconsistent with the purposes of the Constitution
c. Limiting the federal courts jurisdiction does not overrule prior judicial
decisions, effect of jurisdiction would be to freeze the existing law and
might bring about a substantive change in the law
Part 3.2: Federal Court Jurisdiction
1. Four different positions as to the constitutionality of congressional
restrictions of lower federal court jurisdiction
a. Approach 1: Federal court must have the full judicial power
i. Lower courts created by Congress must have the full judicial
power described in Article III
ii. This theory has not been followed at any point in American
history
b. Approach 2: Congressional discretion to decide jurisdiction
i. Congress has the authority to determine the jurisdiction of the
federal courts because Congress has discretion as to whether
to establish such tribunals
ii. Congress may withhold from any court of its creation
jurisdiction of any of the enumerated controversies. (Sheldon v.
Sill)
iii. Supreme Court has adopted this position in a number of other
decisions
c. Approach 3: Constitutional requirement for some federal courts
i. Unlike the first two approaches which begin with the
assumption that Congress has complete discretion as to
whether to create lower federal courts, this position is
premised on the contrary claim that, at least for some issues,
lower federal courts must exist
ii. Martin v. Hunter’s Lessee: If Congress could refuse to create
lower federal courts, there would be at least some categories of
cases that could never be heard in federal court
d. Approach 4: Specific constitutional limits
i. Congress has discretion both to create lower federal courts and
to determine their jurisdiction, but Congress may not restrict
jurisdiction in a manner that violates other constitutional
provisions
ii. Where Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear. (Webster
v. Doe)
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2. Congressional power to enlarge the jurisdiction of the federal courts
a. Generally, Congress may not enlarge the jurisdiction of the federal
courts
b. But there are some instances where specialized Article III can hear
matters in addition to those specified in the Constitution, but these
cases seem to be exceptions that emerged from longstanding
historical practices
3. Congressional power to have state courts decide federal law matters
a. Clearly established that state courts must decide questions of federal
law unless a federal statute mandates exclusive federal court
jurisdiction
b. Strong authority from the Supreme Court that the state courts cannot
discriminate against federal claims
c. If a federal law expressly specifies the procedure to be used with
regard to a particular cause of action, then of course states must
follow it
d. Absent such clear statutory intent, Supreme Court generally has held
that state courts are not obligated to follow federal procedural rules
so long as the state procedures do not unduly burden the federal
rights
Part 3.3: Non-Article III Courts and Judges
1. Article III v. Article I courts
a. Article III court judges have life tenure, assuming good behavior, and
salaries that cannot be decreased during their terms of office
b. Article I courts (or “legislative courts”) have judges without life tenure
or salary guarantees
2. Reasons for creating Article I courts
a. Avoid establishing a large number of additional judgeships
b. Allow agencies that also posses rule-making and investigative powers
to decide particular controversies within their expertise
c. Advantages of cost-savings and efficiency
d. Preference that the judges are less likely to be independent
3. Should all federal courts be Article III tribunals?
a. No longer realistic to argue that it is always unconstitutional for
Congress to create legislative courts to decide Article III judicial
business
b. Unlikely that the Supreme Court would ever declare all legislative
courts unconstitutional or that the Court would ever rule that all
legislative courts are permissible regardless of circumstances
4. Four situations in which legislative courts are permissible:
a. U.S. possession and territories
b. Military matters
c. Civil disputes between the U.S. and private citizens
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d. Criminal matters or for disputes between private citizens where the
legislative court serves as an adjunct to an Article III court that can
review the legislative court’s decisions
i. Bankruptcy courts were not adjuncts of Article III courts
ii. Article III jurisdiction may not be conferred on non-Article III
courts. (Northern Pipeline Construction Co. v. Marathon Pipe
Line Co.)
iii. Balancing the adverse impact on Article III values with the
justification for use of a legislative court
1. Two goals of Article III
a. Ensuring fairness to litigants by providing an
independent judiciary
b. Maintaining the “structural” role of the judiciary
in the scheme of separation of powers
2. Congress may grant pendent jurisdiction over state law
counterclaims to administrative agencies. (Commodity
Futures Trading Commission v. Schor)
iv. General approach is to balance the benefit of using a legislative
court with the harms in terms of fairness to the litigants and to
the structure of separation of powers, inevitably requires caseby-case decision-making
Part 3.4: Remedies for Statutory Rights
1. When may federal courts create private rights of action to enforce federal
laws that do not contain them?
2. Statutes without private rights of action: where courts believe that a private
right of action would fulfill congressional intent
a. Three different approaches
i. Court is willing to create a private right of action where it
would help effectuate the purpose for a statute and if no
legislative history mitigated against authorizing such a remedy
1. It is the duty of the courts to be alert to provide such
remedies as are necessary to make effective the
congressional purpose. (J. I. Case Co. v. Borak)
2. Allows federal courts to create a private right of action,
in the absence of any express congressional
authorization, if damages suits would help accomplish
the legislative purpose for a statute
ii. More detailed inquiry into congressional intent
1. Four-part test of relevant factors in determining
whether a private remedy is implicit in a statute not
expressly providing one: (1) if the plaintiff is one of the
class for whose special benefit the statute was enacted,
(2) if there is any indication of explicit or implicit
legislative intent either to create a remedy or deny one,
FedJur Outline
Page 17
(3) if it is consistent with the underlying purpose of the
legislative scheme to imply such a remedy for the
plaintiff, and (4) if the cause of action is one
traditionally relegated to state law so that it would be
inappropriate to infer a cause of action based solely on
federal law. (Cort v. Ash)
2. Supreme Court used this approach and for the most
part generally refused to create causes of action
3. Title IX of the Higher Education Act contains an implied
private cause of action. (Cannon v. University of Chicago)
iii. Court will create a private right of action only if there is
affirmative evidence of Congress’s intent to create a private
right of action
1. Court did not expressly discard Cort v. Ash, but generally
seen as that
2. There is no private right of action to enforce disparateimpact regulations promulgated under Title VI of the
Civil Rights Act of 1964. (Alexander v. Sandoval)
Part 3.5: Remedies for Constitutional Violations
1. Suits against federal officers
a. Authority for suits against federal officials
i. No statute creating a cause of action against federal officers for
constitutional transgressions
ii. Supreme Court has long held that federal officers may be sued
for injunctive relief to prevent future infringements of federal
laws
b. Limitations on recovery
i. Whether and when a cause of action exists under Bivens
ii. Limits on the scope of constitutional protections have the
obvious effect of restricting Bivens suits
c. Cause of action against federal officers for monetary relief
i. Individuals have an implied cause of action against federal
government officials who have violated their constitutional
rights. (Bivens v. Six Unnamed Agents of Federal Bureau of
Narcotics)
ii. Exceptions recognized in Bivens
1. No cause of action if there are “special factors
counseling hesitation in the absence of affirmative
action by Congress”
2. Court would not create a cause of action if Congress has
specified an alternative mechanism that Congress
believes provides an equally effective substitute
iii. The implied damages actions of Bivens are not extended to
allow recovery against a private corporation operating a
FedJur Outline
Page 18
halfway house under contract with the Bureau of Prisons.
(Correctional Services Corporation v. Malesko)
d. Bivens suits against government and private entities
i. Federal agency is not subject to liability for damages under
Bivens
ii. Eleventh Amendment bars Bivens suits against state
governments
iii. No Bivens suits against private entities
2. Suits against the federal government
a. United States government may not be sued without its consent
b. Reasons for sovereign immunity
i. Operation of government would be hindered if the United
States were liable for every injury it inflicted
ii. Liability cannot exist unless the law provides for it
iii. Efficiency arguments, without it there would be a flood of
litigation against the U.S. and that money would be diverted
from other government uses to pay off damage judgments
against the federal government
c. Criticisms of sovereign immunity
i. Anachronistic relic
ii. Inconsistent with a central maxim in this country, that no one,
not even the government, is above the law
iii. Difficult to reconcile with the United States Constitution
iv. Effect is to cause lawsuits to be filed against the individual
government officers
d. Injunctive relief against the United States
i. Injunctive relief allowed against federal officers
ii. Administrative Procedures Act specifically allows for suits for
injunctive relief to be brought against the United States, U.S.
has waived its sovereign immunity in suits requesting other
than monetary relief
Part 3.6: Appellate Review in the Federal System
1. Supreme Court generally may only review the final judgment of a state’s
highest court or the final judgment of a United States Court of Appeals
2. Benefits of the final judgment rule
a. Promotes judicial efficiency
b. Promotes expeditious resolution of proceedings
c. Provides a fully developed record
d. Promotes federalism
3. Justification for review without a final judgment: important when there is a
lower court decision that infringes on important constitutional rights, and
later review is either unavailable or ineffective in repairing the harms
FedJur Outline
Page 19
4. Similarity in doctrines concerning the Supreme Court’s review of state court
decisions and those of lower federal courts, difference in statutory
requirements for finality
5. Review of the final judgment of a state’s highest court
a. Review in the highest court in which review can be had
b. Individuals must exhaust all available appeals within the state court
system
c. “Final judgment or decree”
i. Decision is final if it “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment”
ii. Four exceptions to the traditional rule of finality
1. If no doubt as to the outcome of remaining proceedings
2. Federal law issues will survive and necessitate Supreme
Court review
3. When review is now or never
4. Preserving Supreme Court review of important federal
issues
6. Supreme Court review of final judgments of the United States Courts of
Appeals
a. Review without a final judgment of a federal court of appeals
i. When federal jurisdictional statutes provide for appeals from
federal district court decisions
ii. Supreme Court may review cases docketed in the court of
appeals prior to the entry of a final judgment by the appeals
court
iii. When the United States Court of Appeals issues a decision
before the district court grants a final judgment
b. Collateral order doctrine
i. Authority of a court of appeals to review a ruling of a district
court that is unrelated to the merits of that case and that
allegedly threatens an important right, thus justifying
immediate appellate review
ii. An order imposing sanctions on an attorney under FRCP
37(a)(4) is not a final decision for the purposes of the federal
courts of appeals. (Cunningham v. Hamilton County, Ohio)
iii. The collateral order doctrine does not extend to disclosure
order adverse to the attorney-client privilege. (Mohawk
Industries, Inc. v. Carpenter)
Part 4: Federal Courts and States
Part 4.1: State Sovereign Immunity & Source, Abrogation, and
Waiver
1. Eleventh Amendment prohibits suits in federal courts against state
governments in law, equity, or admiralty, by a state’s own citizens, by
citizens of another state, or by citizens of foreign countries
FedJur Outline
Page 20
a. No consensus among the Framers about whether state sovereign
immunity survived Article III
b. Under the Eleventh Amendment, a suit directly against a state by one
of its own citizens is not one to which the judicial power of the United
States extends, unless the state itself consents to be sued. (Hans v.
Louisiana)
c. Competing theories of the Eleventh Amendment
i. Restriction on subject matter jurisdiction of the federal courts
that bars all suits against state governments
1. But neither the language nor the history of the Eleventh
Amendment justify reading it as creating a
constitutional bar to suits against states by their own
citizens
2. Hans v. Louisiana takes this view
ii. Restriction on the subject matter jurisdiction only in
precluding cases being brought against states that are founded
solely on diversity jurisdiction
2. Sovereign immunity bars suits against state governments in state court
without their consent
3. Application of the Eleventh Amendment and Sovereign Immunity: What’s
Barred and What’s Allowed
a. Suits barred
i. Suits against a state government by citizens of another state or
citizens of a foreign country
ii. Suits against a state by its own citizens
1. Because of the sovereign immunity recognized in the
11th Amendment, a federal court may not order a State
to pay back funds unconstitutionally withheld from
parties to whom they were due. (Edelman v. Jordan)
iii. State governments cannot be sued in state court without their
consent (Alden v. Maine)
b. Suits allowed
i. Federal courts suits by the U.S. government against a state
ii. Suits against a state by another state
iii. Suits against municipalities or political subdivisions of a state
4. State agencies = inconsistent, but four criteria may help, affirmative answers
to these questions (especially the first) indicate that the entity will be
protected by the Eleventh Amendment and negative answers suggest that the
body will be deemed sufficiently independent from the state that the
Eleventh Amendment does not apply
a. Will a judgment against the entity be satisfied with funds from the
state treasury?
b. Does the state government exert significant control over the entity’s
decisions and actions?
c. Does the state executive branch or legislature appoint the entity’s
policymakers?
FedJur Outline
Page 21
d. Does the state law characterize the entity as a state agency rather
than as a subdivision?
5. Three primary mechanisms for circumventing the Eleventh Amendment and
allowing federal courts to ensure state compliance with federal law
a. Suits against state officers
i. Suits against state officers for injunctive relief
1. A lawsuit seeking an injunction against a state official
did not violate the sovereign immunity of the state,
because the state official was not acting on behalf of the
state when he sought to enforce an unconstitutional
law. (Ex parte Young)
2. Limits the effect of the Eleventh Amendment and
ensures state compliance with federal law
3. But distinction between state and officers is fictional?
a. State officer is the proper defendant in a lawsuit
to prevent the officer’s unconstitutional conduct
b. Young distinguishes between the state and its
officers in much the same way as the common
law always as distinguished between a principal
and its agent
ii. Suits against state officers for monetary relief
1. Eleventh Amendment does not prevent suits against
state officers for money damages to be paid out of the
officers’ own pockets, even when the damages are
retrospective compensation for past harms
2. Eleventh Amendment does not prohibit a federal court
from giving injunctive relief against a state officers even
though compliance with the injunction will cost the stat
a great deal of money in the future
3. Eleventh Amendment prevents a federal court from
awarding retroactive relief (damages to compensate
past injuries) when those damages will be paid by the
state treasury (Edelman v. Jordan)
iii. Exceptions to Ex parte Young
1. Bar on suits against state officers based on pendent
state claims
2. Suits enforcing federal laws with comprehensive
enforcement
a. Seminole Tribe v. Florida
b. The Indian Commerce Clause does not grant
Congress the power to abrogate the sovereign
immunity afforded to states under the 11th
Amendment, and the doctrine of Ex parte Young
(allowing parties to seek relief against state
officials for violations of the Constitution or laws
of the United States) does not apply where
FedJur Outline
Page 22
Congress has already created what it deems a
sufficient remedy.
b. States may waive their sovereign immunity and consent to suit
i. Explicit waiver (state expressly agrees to be sued in federal
court) v. constructive waiver (not allowed!)
ii. Mere fact that state accepts federal funds is not sufficient to
establish consent on the part of the state to be sued in federal
courts (Edelman v. Jordan)
c. Litigation against the states pursuant to statutes adopted under the
Fourteenth Amendment – Should Congress be able to abrogate the
Eleventh Amendment?
i. Fitzpatrick v. Bitzer
1. Statutes adopted under §5 of the Fourteenth
Amendment
2. Congress’s intent must be explicit in order to override
state sovereignty pursuant to the Fourteenth
Amendment
ii. Seminole Tribe v. Florida: Congress may abrogate the Eleventh
Amendment only when acting under its §5 powers and not
under any other constitutional authority
Defendant
State
Plaintiff
Citizen of
another state
Jurisdictional Basis
Diversity (citizenstate)
Eleventh
Amendment
Cohens
State
Citizen of
another state
Citizen of
that state
Diversity (citizenstate)
Federal question
Cases in Hans
State
Hans
State
Citizen of
another state
Citizen of
that state
Chisholm
State
Federal question
Federal question
Federal court
Yes
Hans
State
Ex parte
Young
Pennhurst
State official
Citizen of that
state
Citizens of that
state
Citizens of that
state
Citizen of that
state
Yes
No
Plaintiff
Edelman
Immune?
No
Direct appeal
from state
court
Federal court
Defendant
State
hospital and
official
State officials
Posture
Original in
Supreme
Court
Yes
Type of
Right
Federal
Relief
Immune?
Money
Yes
Federal
Prospective relief
No
State
Prospective
injunction
Yes
Federal
Injunction, remit
benefits (money)
Yes
FedJur Outline
Page 23
Part 5: Federal Courts and State Officials
Part 5.1: §1983 Fundamentals
1. §1983 Basics and Jurisdiction
a. Basis for most suits in federal courts against local governments and
state and local government officers to redress violations of federal law
b. Does not create federal court jurisdiction, creates a cause of action, a
legal entitlement to relief, against those who, acting pursuant to state
government authority, violate federal law
2. Meaning of “Under Color of State Law”
a. Central question is whether §1983 applies only to actions taken
pursuant to official government policies or whether §1983 suits also
may be brought against the unauthorized or even illegal acts by
government officers
b. Pre-Monroe v. Pape: long-standing assumption that § 1983 reached
only misconduct either officially authorized or so widely tolerated as
to amount to a “custom or usage”
c. Monroe v. Pape
i. Rule: Congress meant to give a remedy to parties deprived of
constitutional rights, privileges, and immunities by an official’s
abuse of his position under §1983.
ii. A narrow definition of “under color of law” would permit state
governments to substantially immunize their officers from
§1983 liability simply by enacting general statutes prohibiting
officers from violating the Constitution or laws of the United
States
d. Problems with defining “under color of law”
i. Some might argue that there is not state action when a public
officer is acting without the authority of the government an
even may be violating the law
ii. Problems arise in deciding when off-duty government officers
are acting under color of law, as opposed to in a purely private
nongovernmental role
iii. Public employees who have independent duties to a client
iv. Private actions, such as pursuant to a conspiracy, should be
deemed to occur under color of law because their close
relationship to the acts of government officers
3. Exhaustion of state remedies is not required for §1983 litigation
4. When may §1983 be used for constitutional claims?
a. Dormant commerce clause claims enforceable
b. Preemption claims not necessarily enforceable
c. §1983 suits not available for violations of Miranda v. Arizona
d. Reputation alone is not a constitutionally protected interest. (Paul v.
Davis)
e. Three major limitations on constitutional claims under §1983
FedJur Outline
Page 24
i. Negligent conduct cannot constitute a deprivation of due
process
ii. Random and unauthorized deprivation of property and liberty
are not due process violations where the plaintiff seeks a postdeprivation remedy and an adequate one is available under
state law
iii. The government generally has no duty to protect individuals
from privately inflicted harms
5. Remedies available in §1983 litigations
a. What damages ay be recovered in successful §1983 actions?
i. Compensation for actual injuries suffered, includes not only
financial harms incurred, but also emotional and psychological
harms (emotional distress and humiliation)
ii. Punitive damages may be recovered from individual officers,
although not from government entities
b. How should matters not specifically covered in §1983 or its legislative
history be decided? State law should be used when §1983 is
“deficient”
Part 5.2: Statutory Claims
1. What federal laws may be the basis for a §1983 suit?
2. Maine v. Thiboutot
a. §1983 encompasses claims based on purely statutory violations of
federal law, and attorney fees may be awarded to the prevailing party
in such an action.
b. Under the literal language of the statute, §1983 suits are available
whenever any federal law has been allegedly violated.
3. Exception: §1983 is only available to enforce federal statutes that create
rights
a. If Congress wishes to create new rights enforceable under §1983, it
must do so in clear and unambiguous terms – no less and no more
than is required for Congress to create new rights enforceable under
an implied private right of action. (Gonzaga University v. Doe)
b. Court expressly ties the availability of a §1983 suit to whether there
would be a private right of action to enforce the federal statute
4. Exception: §1983 may not be used to enforce statutes that explicitly or
implicitly preclude §1983 litigation
a. Sea Clammers
i. Comprehensive enforcement mechanisms in statutes
demonstrate congressional intent to preclude the remedy of
suits under §1983
ii. Statutory enforcement scheme will be deemed comprehensive
only when it provides for both administrative and judicial
remedies
b. City of Rancho Palos Verdes v. Abrams
FedJur Outline
Page 25
i. The existence of a more restrictive private remedy for
statutory violations has been the dividing line between those
cases in which an action would lie under §1983 and those in
which it would not.
ii. Presumption against using §1983 to enforce a federal law, at
least in circumstances where the federal statute is more
restrictive than §1983 in the remedies it allows
Part 5.3: Government Liability
1. Who is a “person” for purposes of §1983 liability? Municipal governments
a. Monroe v. Pape: municipal governments may not be sued in §1983,
based on reading of the legislative history of §1983
b. Monell v. Department of Social Services
i. Supreme Court expressly overruled Monroe’s limitation on
municipal liability
ii. Rule: Local governing bodies may be sued directly under
§1983 for monetary, declaratory, or injunctive relief where the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body’s officers.
2. How is the existence of an official municipal policy proven? Five possible
ways to establish the existence of a policy or custom sufficient to impose
§1983 liability on a municipal government
a. Actions by the municipal legislative body constitute official policies
b. Official policies exist when there are actions by municipal actions or
boards that exercise authority delegated by the municipal legislative
body
c. Actions by those with final authority for making a decision in the
municipality constitute official policy for purposes of §1983
d. Establishing a government policy of inadequate training or
supervision
i. Single instance of inadequate screening is not sufficient to
prove that the municipality caused the injuries (Board of
Country Commissioner of Bryan County, Oklahoma v. Brown)
ii. Unclear how much worse the criminal record would have
needed to be for the Supreme Court to allow the verdict of
liability to stand
iii. Unclear how much evidence there must be to support a jury’s
verdict finding causation, but it is clear that the Court sees it as
a legal question to be vigilantly monitored by the appellate
courts
e. Establish municipal liability under §1983 would be to demonstrate
the existence of a “custom”
3. Do municipalities have a good faith defense to liability? No qualified
immunity for local governments
FedJur Outline
Page 26
4. Are municipalities liable for punitive damages under §1983? No
5. Who is a “person” for purposes of §1983 liability? State governments and
territories
a. Eleventh Amendment bars §1983 suits against state governments in
federal court
b. Suits against states in state courts: states governments are not
persons under §1983 and thus may not be sued in state court
c. State courts could not be sued in their official capacity in state court
under §1983
Part 5.4: Official Immunity
1. Issues in litigating immunity
a. The determination of immunity to be accorded as a defense in §1983
suit is entirely a question of federal law
b. The Supreme Court has held that a court ruling denying immunity is
immediately appealable
c. The Supreme Court has held that the law is identical concerning the
immunities accorded to federal officers
d. Immunities are a defense to liability, not an element of the plaintiff’
prima facie case
e. There is not a heightened pleading requirement in suits against
individual officers
f. Distinction is frequently drawn between suits against an officer in his
or her “official” as opposed to “individual” capacity
2. Absolute immunity
a. Those performing judicial, legislative, and prosecutorial functions
b. Function, not title, receives this immunity
3. Qualified immunity
a. Affirmative defense that the officer must raise, plaintiff’s complaint
need not allege absence of qualified immunity
b. Government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of
which a reasonable person would have known. (Harlow v. Fitzgerald)
c. Sequence of analysis
i. In Saucier, this Court mandated a two-step sequence for
resolving government officials’ qualified immunity claims.
ii. First, a court must decide whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right.
iii. Second, if the plaintiff has satisfied this first step, the court
must decide whether the right at issue was “clearly
established” at the time of the defendant’s alleged misconduct.
iv. Qualified immunity is applicable unless the official’s conduct
violated a clearly established constitutional right.
FedJur Outline
Page 27
v. The Saucier procedure should not be regarded as an inflexible
requirement, courts using that test may analyze the two steps
in whatever order is most appropriate in a particular case.
(Pearson v. Callahan)
d. How is it determined if there is clearly established law that a
reasonable officer should know?
Money Damages
Defendant
State
State Official (official
capacity)
§ 1983 “person”?
No
No
Immunity?
Sovereign
Sovereign
State Official
(individual capacity)
City
City Official (official
capacity)
City Official
(individual capacity)
Yes
Injunction
Immunity?
Sovereign
Ex parte Young
Official
§ 1983 “person”?
No
No, to extent acting
constitutionally (kind of yes,
kind of no)
Yes
Yes (Monell)
Yes
None
None
Yes
Yes
None 
None
Yes
Official
Yes
None
None
Part 6: Federal Courts and State Courts
Part 6.1: Supreme Court Review of State Courts & Substantive and
Procedural Grounds
1. Supreme Court’s authority to review state court judgments and proceedings
a. Judiciary Act of 1789 granted Supreme Court the authority to review
state court decisions that ruled against federal law or federal
government interests
b. Primary limitation on Supreme Court’s constitutional authority to
review state court judgments is that such review is limited to
questions of federal law
i. The Supreme Court will look at the federal law, but will not
consider a state court’s decisions resting solely on state law.
(Murdock v. City of Memphis)
ii. State court decisions regarding state law are unreviewable
c. State law intertwined with federal issues, such as when the federal
Constitution protects a right created by state law
i. Where a question is primarily of state law, we accord
respectful consideration and great weight to the views of the
state’s highest court but, in order that the constitutional
mandate not become dead letter, we are bound to make a
decision that involves an appraisal of the statutes of the State
and the decisions of its courts. (Indiana ex rel. Anderson v.
Brand)
ii. General rule is that Supreme Court may not review state court
decisions on state law grounds, but there is a narrow exception
where the state law issue is integrally tied to a federal question
FedJur Outline
Page 28
2. How cases come to the United States Supreme Court
a. Original jurisdiction
i. Generally
1. Congress may not add to the Court’s original
jurisdiction (Marbury v. Madison)
2. Unresolved question of whether Congress may subtract
from the Court’s original jurisdiction
3. Clearly established that Congress may establish
concurrent jurisdiction in lower federal courts or in
state judiciaries for questions arising within the Court’s
original jurisdiction
4. Where such concurrent jurisdiction exists, the Court has
discretion to refuse to hear cases within its original
jurisdiction and instead to require that the matters be
brought first in a federal or state trial court
ii. Original and exclusive jurisdiction over all controversies
between 2 or more states
iii. Original, but concurrent jurisdiction
1. Actions or proceedings to which ambassadors, other
public ministers, consuls, or vice consuls of foreign
states are parties
2. All controversies between the United States and a State
3. All actions of proceedings by a State against citizens of
another State or against aliens
b. Review of a final judgment of a decision of the highest court of a state
c. Review of a final judgment of a United States Court of Appeals:
Certiorari, certification, or direct review of decisions of federal district
courts
3. The Supreme Court’s refusal to review highest state court decisions if there
are independent and adequate state law grounds supporting the result
a. Court must decline to hear a case if its reversal of the state court’s
federal ruling will not change the outcome of the case because the
result is independently supported by the state’s decision on state law
grounds
b. What if a decision is based on both federal law and on state law
grounds? Where a state court decision rest on two grounds, one of
which is federal law and the other is state law, the Supreme Court will
not review the case if the state law ground is independent of the
federal law ground and is adequate by itself to support the result
c. Where there is an independent question of state law which is
adequate the support the state court’s judgment, the United States
Supreme Court has no jurisdiction. (Fox Film Corp. v. Muller)
d. What is an adequate state ground of decision?
i. Adequate if the Supreme Court’s reversal of the state court’s
ruling will not alter the outcome of the case
FedJur Outline
Page 29
ii. Unconstitutional state law cannot support the state court’s
holding and is therefore inadequate
iii. State law is inadequate when there is no fair and substantial
basis in the record supporting the state court’s state law ruling
e. State procedural grounds = adequate?
i. Decision on state procedural grounds are deemed “adequate”
and sufficient to prevent the Supreme Court from reviewing
substantive constitutional issues
ii. Court is unwilling to allow states to manufacture procedural
rules in order to preclude Supreme Court review
f. When are state procedural rules inadequate?
i. State procedural rules inadequate if they deny due process
(Brinkerhoff-Faris)
ii. Procedural rules that fail to promote a sufficiently important
state interest, but so prevent the vindication of federal rights
(Henry v. Mississippi)
1. What is a legitimate state interest?
iii. State procedural rules manufactured to preclude review
(NAACP v. Alabama ex rel. Patterson)
iv. Rules that are inconsistently followed by state courts
1. Where it is inescapable that the defendant sought to
invoke the substance of his federal right, the asserted
state-law defect in form must be more evident than it is
here. (James v. Kentucky)
2. Ordinarily, violations of “firmly established and
regularly followed” state rules will be adequate to
foreclose review of a federal claim. However, there are
exceptional cases in which exorbitant application of a
generally sound rule renders the state ground
inadequate to stop consideration of a federal question.
(Lee v. Kemna)
v. Discretionary rules do not preclude review
g. What is an independent state ground of decision?
i. A state ground is deemed independent if it is based entirely on
state law and is not tied to federal law
ii. Not independent if it incorporates federal law
1. If the state court felt compelled by what it understood
to be federal constitutional considerations to construe,
its own law in the manner that it did, that is not an
independent and adequate state ground. (Delaware v.
Prouse)
2. Supreme Court will review the state court’s decision
even though there is a state law ground for decision
iii. How to proceed when state court is unclear?
1. Supreme Court will presume that there is not a state
law basis for a decision unless the state’s highest court
FedJur Outline
Page 30
provides a clear statement that its decision was
grounded on state law (Michigan v. Long)
2. Long advances federalism because it encourages states
to develop independent state law doctrines
3. But the Court in Long places a strong presumption in
favor of Supreme Court jurisdiction
Part 6.2: The Anti-Injunction Act
1. Overview and background
a. Federal statute adopted in 1793, provided that no “writ of injunction
[shall] be granted to stay proceedings in any court of a state”
b. Supreme Court frequently has said that the “statute is designed to
prevent conflict between federal and state courts,” but did not treat
the prohibition against injunctions as an absolute bar to such relief
c. Aspects of the Act
i. Prohibits federal courts from enjoining state proceedings
either directly by enjoining state courts or indirectly enjoining
the parties from proceeding with litigation in the state courts
ii. Applies only if there are proceedings actually pending in the
state courts; it does not prevent federal courts from issuing
injunctions in the absence of ongoing state court litigation
iii. Exceptions contained in the Act are exclusive and the Court
may not create additional situations in which injunctions can
be issued
d. Relationship to Younger abstention
i. Decision was not based on Anti-Injunction Act, but instead
rested on federalism considerations and on the availability of
adequate state court proceedings to resolve the constitutional
challenges
ii. In order for a federal court to enjoin ongoing state court
litigation the case must fit within both an exception to the AntiInjunction Act and an exception to Younger doctrine
2. Exception: Injunctions that are expressly authorized by statute
a. Some federal statutes explicitly authorize federal court injunctions of
state proceedings
b. Mitchum v. Foster: §1983 constitutes an express authorization of
injunctions of state proceedings, legislative history clearly indicated
that it could be given its intended effect only if federal courts could
stay state court proceedings
c. Relationship of Younger and Mitchum: there are two independent
barriers to federal courts injunctions of state court proceedings: the
judicially created abstention doctrine and the Anti-Injunction Act
3. Exception: Injunctions in aid of jurisdiction
a. Two circumstances
i. Where a case is removed from state court to federal court and
FedJur Outline
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ii. Where the federal court first acquires jurisdiction over a case
involving the disposition of real property
b. Real property exception does not include in personam cases
c. Proceedings in state courts should normally be allowed to continue
unimpaired by intervention of the lower federal courts, with relief
from error, if any, through the state appellate courts and ultimately
this Court. (Atlantic Coast Line)
4. Exception: Injunctions to promote or effectuate a federal court’s judgment
a. Permits federal courts to enjoin state proceedings if necessary to
ensure the preclusive effect of an earlier federal court decision
b. When a federal court decides an issue, it can prevent that same issue
from being relitigated in state court where principles of preclusion
should bind the state court
c. Federal court may not enjoin state court proceedings under the
relitigation exception if the earlier federal court ruling was based on
federal court procedures and not on the merits of the case
d. Timing for seeking injunctions
i. Once res judicata issue was raised in state court and decided,
then the federal court must accept the state’s determination
that there is not preclusion
ii. Strong incentive not to litigate preclusion issue in state court
Part 6.3: Federal Court Abstention Because of Unclear State Law
(Pullman and Burford Abstention)
1. Abstention: judicially created rules whereby federal courts may not decide
some matters before them even though all jurisdictional and justiciability
requirements are met
2. Abstention to avoid federal court constitutional rulings – Pullman abstention
a. Railroad Commission of Texas v. Pullman Company: It is appropriate
for federal district courts to abstain from hearing a case in order to
allow state courts to decide substantial constitutional issues that
touch upon sensitive areas of state social policy.
b. Three major rationales for Pullman holding
i. Abstention avoids friction between federal and state courts
ii. Reduces the likelihood of erroneous interpretations of state
law
iii. Avoids unnecessary constitutional rulings
c. Criticisms of Pullman abstention: substantial costs and enormously
delaying to cases
d. Prerequisites for Pullman abstention
i. There must be substantial uncertainty as to the meaning of the
state’s law and
ii. There must be a reasonable probability that the state court’s
clarification of state law might obviate the need for a federal
constitutional ruling
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e. Unresolved issues as to when Pullman abstention is appropriate
i. Whether federal courts should weight the costs of delaying a
constitutional ruling in deciding whether to abstain
ii. Whether Pullman abstention is discretionary or mandatory
iii. Whether federal courts may abstain in a case where
jurisdictional statutes create exclusive federal jurisdiction
iv. Disagreement among lower federal courts as to the legal test to
be used in deciding whether abstention is appropriate
3. Abstention because of unclear state law in diversity cases – Thibodaux
abstention: generally not required in diversity cases
4. Abstention to defer to complex state administrative procedures – Burford
abstention
a. Abstention because of complex state administrative procedures does
not merely “postpone” federal court jurisdiction; it completely
displaces federal court review
b. In Burford, the Court justified abstention because of the presence of
unclear questions of state law and the need for centralized
administration
c. Burford abstention is appropriate only where there is a danger that
federal court review would “disrupt the State’s attempt to ensure
uniformity in the treatment of an essentially local problem.” (NOPSI)
i. Mere existence of state administrative procedures, or even a
complex state administrative apparatus, does not necessarily
warrant abstention
ii. Burford abstention requires that the administrative system
have a primary purpose of achieving uniformity with a state
and that there be the danger that judicial review would disrupt
the proceedings and undermine the desired uniformity
d. Burford abstention is not appropriate in suits for monetary damages,
but rather only as to claims for injunctive or declaratory relief
5. Procedures when there is federal court abstention: It is likely for all of the
abstention doctrines, a federal court’s decision to abstain is immediately
appealable, but its refusal to abstain is not appealable until there is a final
judgment
Legal Issues
Burford
NOPSI
Colorado River
Quackenbush
Both, but state
law “thorny”
Federal only
Both, but state
law “settled”
State law, “hotly
contested”
Elaborate
state system?
Yes
Disruptive
effect?
Yes
Relief sought
Result
Equity
Dismiss
Yes
Yes
No
No
Equity
Equity
Retain
Retain
Yes
?
Law
Do not
dismiss
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Part 6.4: Federal Court Abstention to Avoid Interference with
Pending State Proceedings (Younger Abstention)
1. Younger v. Harris:
a. Supreme Court held that federal courts may not enjoin pending state
criminal proceedings
b. The possible unconstitutionality of a state statute is not grounds for a
federal court to enjoin state court criminal proceedings brought
pursuant to that statute.
c. Based on equity and comity grounds
2. Relationship to Rooker-Feldman doctrine
a. Rooker-Feldman expressly bars federal district courts from reviewing
state court decisions
b. Limited to preventing federal courts from reviewing completed state
court proceedings
3. Pre-Younger precedent (Dombrowski)
a. Supreme Court held that a federal injunction of state court
proceedings was appropriate
b. Because of need for federal court action to enjoin the enforcement of
overbroad statutes that might chill the exercise of First Amendment
rights
c. Limited exception to the general rule against injunctions
4. Relationship to the Anti-Injunction Act: Anti-Injunction Act prohibits federal
courts from enjoining state court proceedings unless one of three specific
exceptions is fulfilled, Younger is a separate and independent barrier to
federal court injunctions
5. Younger abstention = constitutional or prudential? Unclear
6. Extension of Younger v. Harris
a. Federal courts may not provide a plaintiff with declaratory relief
when he or she is subject to a pending state court criminal
prosecution
b. Federal courts may issue declaratory relief if state criminal
proceedings are threatened, but not pending (Steffel v. Thompson)
c. Court has rejected an expansive interpretation that would apply
Younger to all civil litigation
7. Exceptions to Younger
a. Bad faith prosecutions
b. Patently unconstitutional laws
c. Unavailability of an adequate state forum
d. Waiver (Younger abstention must be raised by the parties, the federal
courts are not to raise it on their own)
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No
standing
(Younger)
“Inhibited”
“Sweet spot”
(Steffel v. Thompson)
Threatened
Abstention
(Younger)
Charged
Decided
*Very specific threat!
(another person
prosecuted, state said it
would prosecute)
Part 6.5: Abstention to Avoid Duplicative Litigation (Colorado River
Deference)
1. Problem of duplicative litigation: Because of the Anti-Injunction Act and
Younger abstention doctrine, the federal court generally may not enjoin the
pending state court action
2. How duplicative litigation might occur
a. Reactive suits
b. Requirement for complete diversity
c. Limits on removal jurisdiction in diversity cases
d. Repetitive suits
3. When should federal courts abstain because of duplicative litigation in state
courts?
a. No general rule for abstention
b. Real property exception: first court with jurisdiction decides
c. No preclusion of concurrent jurisdiction in other areas
d. Federal courts generally need not dismiss or stay an action on account
of the existence of parallel litigation in state court
4. Colorado River Deference
a. Under exceptional circumstances, a federal district court may abstain
out of deference to state proceedings to avoid duplicative or
piecemeal litigation.
b. Moses H. Cone: abstention to avoid duplicative litigation is permissible
only in exceptional circumstances, careful balancing of the
considerations involved, important factor is whether a federal
question is present
5. Unresolved questions concerning abstention to avoid duplicative litigation
a. What are sufficiently “exceptional circumstances”?
b. What about when there is duplicative state and federal court
litigation, but one of the issues pending in federal court falls within
exclusive federal jurisdiction?
6. Procedural aspects
a. Suits for money damages should not be dismissed from federal courts
b. Federal courts have the power to dismiss or remand cases based on
abstention principles only where the relief sought is equitable or
otherwise discretionary. (Quackenbush)
c. Parties may not appeal the district court’s refusal to abstain
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d. BUT district court’s decision to abstain is immediately appealable
Should We Defer? [YES or NO]
Factor
Piecemeal litigation
Proceedings went further in state
court
U.S. is a party
State v. federal law
Convenience of state
forum/inconvenience of federal
forum
In rem jurisdiction
Adequacy of state forums
Colorado River
Yes*
Yes
Moses H. Cone
No
No
No
(Yes)
Yes
No*
-
Yes
-
No
Part 6.6: Rooker-Feldman Doctrine
1. Rooker v. Fidelity Trust Co.: Federal plaintiff sought to have a state court
judgment declared “null and void,” Supreme Court held that federal courts do
not have jurisdiction to “entertain a proceeding to reverse or modify” a state
court judgment
2. District of Columbia Court of Appeals v. Feldman: Court concluded that a
federal district court has “no authority to review the final judgments of a
state court in judicial proceedings”
3. Exxon Mobil Corp. v. Saudi Basic Industries Corp.
a. The Rooker-Feldman doctrine is confined to cases of the kind from
which the doctrine acquired its name: cases brought by state-court
losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments.
b. It does not otherwise override or supplant preclusion doctrine or
augment the circumscribed doctrines that allow federal courts to stay
or dismiss proceedings in deference to state court-actions.
4. Rooker-Feldman is limited to circumstances where the loser in state court
proceeding was seeking to have the federal court overturn that judgment
Part 7: Federal Courts and State Prisoners
Part 7.1: The Scope of Federal Habeas Corpus
1. Federal courts have the authority to review state court criminal convictions
pursuant to writs of habeas corpus
2. Protects individuals against arbitrary and wrongful imprisonment
3. Only common law writ recognized by the Constitution
4. Issues raised by habeas corpus
a. Federalism: relationship between federal and state courts
b. Separation of powers: proper role of Supreme Court in deciding
habeas corpus questions
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c. Purposes of the criminal justice system: constitutional rights exist
primarily to protect innocent individuals and ensure that only those
who actually committed a crime will be convicted, but other purposes
of constitutional rights exist, so who should habeas be available to
d. Nature of litigation: importance of finality and consequences of
revisions in the process of litigation
5. Statutes and rules governing habeas corpus
a. Writ of habeas corpus may be granted by “the Supreme Court, any
justice thereof, the district courts and any circuit judge within their
respective jurisdictions”
b. Habeas petitions must be in writing, signed, and verified by the
person for whom relief is requested or by someone acting in his or her
behalf
c. Federal court may grant a habeas petition if it concludes that the
person is held in custody in violation of the Constitution, laws, or
treaties of the United States
d. Individuals in state government custody may bring a habeas petition
only if they have exhausted all available state remedies
e. Federal courts need not entertain a petition for a writ of habeas
corpus if a previous petition presented the same issues and the
petition does not present any new ground
f. Courts have authority to grant habeas corpus to individuals held in
custody “within their respective jurisdictions”
g. Practice for answers, summary dispositions, and discovery (judge
may dismiss a petition if it is clear from the face of the petition that
there are no possible grounds for relief)
h. Statute of limitations for habeas petitions (AEDPA = 1 year)
i. Authorize the federal court in ruling on a habeas petition to “dispose
of the matter as law and justice require”
j. Final order of a judge in a habeas proceeding is subject to review by
the court of appeals in the circuit where the federal district court is
located
6. Requirements for Habeas Corpus
a. Custody
i. Not only limited to releasing a person from incarceration, any
restriction of liberty
ii. Collateral consequences of the criminal conviction
b. Exhaustion
i. Statutory creation in 1948
ii. Prevents federal courts from interfering with ongoing state
criminal proceedings
iii. What state court procedures must be used?
1. Petitioner must pursue all available state court
remedies, exhaustion of state proceedings is incomplete
so long as there remains an available state court
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proceeding that might provide the relief sought by the
petitioner
2. State prisoners need not use state procedures for
collateral review, so long as the issues have been
presented and decided by the state courts on direct
appeal
iv. What must be presented to the state courts?
1. Federal claim must be fairly presented to the state
courts
2. Deemed to have been met when the habeas petitioner
supplements the evidence presented in state court, but
does not raise a new issue
3. Issues must be presented to state courts even when it is
clear that the state law or procedures are
unconstitutional
v. What must the petition contain to meet the exhaustion
requirement?
1. Federal court must dismiss a habeas corpus petition if it
contains both exhausted and unexhausted claims (Rose
v. Lundy)
2. Encourages habeas petitioners to litigate all their claims
in state court and will facilitate the development of
complete records in the state courts
vi. Can the exhaustion requirement be waived? [lower courts are
split]
vii. No §1983 suits challenging confinement
c. No Successive Petitions
d. Timeliness
7. Cognizable Claims – When may a defendant relitigate on habeas corpus
issues that were raised and litigated in state court?
a. Stone v. Powell: When a State has given a full and fair chance to litigate
a Fourth Amendment claim, federal habeas review is not available to a
state prisoner alleging that his conviction rests on evidence obtained
through an unconstitutional search or seizure.
b. Withrow v. Williams: Stone v. Powell’s restriction on the exercise of
federal habeas jurisdiction does not extend to a state prisoner’s claim
that his conviction rests on statements obtained in violation of the
safeguards mandated by Miranda v. Arizona.
Part 7.2: Retroactivity and New Rules
1. What constitutional issues may be raised on habeas corpus? The bar against
seeking “new” constitutional rules on habeas corpus
a. Teague v. Lane: An individual cannot present a claim on habeas corpus
review unless either it is an already established right or it is a right
that would have retroactive application
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b. Two situations in which rights have retroactive effect
i. New rules place “certain kinds of primacy, private individual
conduct beyond the power of the criminal law making to
prescribe”
ii. New rule that adopts a procedure that is “implicit in the
concept of ordered liberty” (watershed rules of criminal
procedure)
2. Three steps of analysis in applying Teague
a. Date on which defendant’s conviction became final is determined
b. Habeas court considers whether a state court considering the
defendant’s claim at the time his conviction became final would have
felt compelled by existing precedent to conclude that the rule he seeks
was required by the Constitution, if NOT, the rule is new
c. If the rule is determined to be new, final step is for court to determine
whether the rule nonetheless falls within one of the two narrow
exceptions to the Teague doctrine
Part 7.3: AEDPA
1. Successive petitions strictly prohibited
2. One year statute of limitations on habeas petitions
3. When is a state court decision “contrary to” or an “unreasonable application”
of clearly established federal law?
a. Terry Williams v. Taylor
b. Under the amended statute, the writ may issue only if one of the
following two conditions is satisfied -- the state-court adjudication
resulted in a decision that (1) "was contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United
States," or (2) "involved an unreasonable application of . . . clearly
established Federal law, as determined by the Supreme Court of the
United States."
i. Under the "contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state
court decides a case differently than this Court has on a set of
materially indistinguishable facts.
ii. Under the "unreasonable application" clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.
Part 7.4: State Procedures and Default
1. Doctrines requiring respect for the processes of state courts
a. Habeas petitioner must present his constitutional claims to the state
courts before they will be considered by the federal courts
FedJur Outline
2.
3.
4.
5.
Page 39
b. Petitioners are required to comply with state procedural rules in
presenting their claims in state court
c. Federal habeas courts are required to give special deference to statecourt fact-finding
When may a defendant present issues on habeas corpus that were not raised
in state court? The effect of state procedural defaults
a. Fay v. Noia: An individual convicted in state court may raise on habeas
issues that were not presented at trial, unless it can be demonstrated
that he or she deliberately chose to bypass the state procedures
b. Wainwright v. Sykes
i. “Deliberate bypass” standard of Fay is no longer controlling,
the defendants must show cause and prejudice before
presenting a matter on habeas that was not raised at trial
ii. Rule: Federal habeas review is barred for a waived objection to
the admission of a confession at trial absent a showing of cause
for the noncompliance and some showing of actual prejudice
resulting from the alleged constitutional violation.
c. Differences between Fay and Wainwright
i. Decisions are based on differing assumptions about the likely
reasons for procedural defaults in state courts
ii. Decisions are based on differing assumptions about the
fairness of binding defendants by strategic choices made by
their attorneys
iii. Decisions differ as to the importance of ensuring compliance
with state procedures
What constitutes “cause”?
a. Attorney mistakes that do not constitute constitutionally-ineffective
assistance of counsel under Strickland are not “cause” for a procedural
default
b. Ineffective assistance of counsel could be “cause” that excuses a
procedural default, but counsel’s error in failing to preserve a
constitutional claim for review in state court must have been so
ineffective as to violate the 6th Amendment
What constitutes “prejudice”?
a. Showing that the claimed constitutional error worked to the
petitioner’s actual and substantial disadvantage, infecting the entire
trial with error of constitutional dimension
b. Showing that the results in the case likely would have been different
absent the complained-of violation of the Constitution or federal laws
State court fact-finding (see AEDPA p. 1132-1133)
Part 7.5: Innocence
1. Actual innocence can excuse a failure to comply with state procedural rules,
and it may excuse a failure to exhaust state remedies
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2. Herrera v. Collins: proposition that a habeas petitioner seeking relief by
claiming that newly discovered evidence demonstrates actual innocence has
a very heavy burden to meet