Fed Courts Cases

Front 1

Hayburn's case

Back 1

Veterans benefits case - can't have a court decide if someone gets benefits if the Sec of War can set that judgment aside and have Congress look into it. Lacks sufficient finality for it to be a case/controversy.

Modern court has said Hayburn's case stands for the principle that Art III courts' decisions can't be reviewable/modifiable by administrators/legislators.

Front 2

Chicago & Southern Air Lines v Waterman

Back 2

an opinion that only has the force of a recommendation to the president would be an advisory opinion. Firm and unvarying practice of Art III courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.

Front 3

Plaut

Back 3

His pending suit becomes time-barred when a SC case (Lampf) says to use fed, not state, limitations periods, so it is dismissed. He doesn't appeal because it's obvious he lost, and the judgment becomes final. But then Congress purports to re-open it! SC says no go, once it's final it's final. (But future cases in his situation can use the state time limits, no problem.)

Weird though because the reason the judgment became final was because of a statute, so why can't a new statute overrule the previous statute? Scalia concedes that an Art III court's judgment is only as final as the law at the time allows it to be, but if Congress could retroactively open any case, it would make all cases like unto Hayburn's case.

Front 4

Miller v French

Back 4

Injunctions don't follow the Plaut rule (which was about damages). Why? In this case, the SC only had to reach the statutory language, which explicitly allows for re-opening of injunction cases when the subst law changes (i.e., this was part of the "finality" of the judgment when it was given). But even without that, injunctions just aren't as "vested" as monetary damages.

Front 5

Constitutional requirements for standing

Back 5

1) Injury in fact
2) Causation
3) Redressability

Front 6

Injury in fact

Back 6

a real-world harm to a concrete interest that belongs to the P and is the kind of interest that can support typical litigation. For a backward-looking relief case, the interest must already have been harmed. For future cases, there has to be a strong chance of injury.
a. You suffer injury in fact if your property is taken or you suffer injury or you are confined against your will. These are harms recognized by traditional common law.
b. But other things can also qualify as injuries in fact, like purely emotional distress. This can form the predicate for fed court litigation.
c. But abstract injury that all citizens injury when their gov't violates the law is not an injury in fact. (IIF). So there are outer limits to what counts as an IIF.

BUT prudential aspects: Even if there was real world harm done, the harm in question might not be to the interest of a sort that serves as a cause of action or legal claim, in which case (unless there's a special cause of action statute) the court will usually say the P lacks standing.
An example of this (or is it a separate prudential aspect?) is if your injury is shared by all taxpayers. No standing for you!

Front 7

Causation

Back 7

injury must be "fairly traceable" to D's conduct.

BUT prudential aspect: if the causation link is too long or attenuated, P might be deemed to lack standing even if constitutional minima are met.

Front 8

Redressability

Back 8

relief requested by P and available from the court would be sufficiently likely to do something about the harm. In past injury cases, money is pretty much always ok. But redressability may be more of a problem in forward-looking cases.

Front 9

Allen v Wright

Back 9

Modern standing doctrine explained by O'Connor. Goes through the difference between constitutional and prudential aspects of standing.

2 claims of IIF:

1) Mere fact that gov't money was going to discriminatory schools. This could either be interpreted as harming them i) because when the gov't breaks the law, it harms all citizens, but this injury is too abstract; or ii) because it stigmatizes all blacks, and while O'Connor concedes that stigmatization can be enough, it has to be more than is present here: the P's here were not themselves denied entry to a discriminatory school.

2) IRS failure to enforce this law diminishes P's kids' chances to get into an integrated school. But for this IIF, causation is not met, it's not fairly traceable to the lack of enforcement, too speculative. Court might be being stricter here than in other circumstances because the P's are basically asking the judiciary to ride herd on the executive branch--separation of powers concerns, anyone?

Recap of the Allen v Wright's majority statement about the two injuries:
1) To the extent they claimed to be stigmatized by the IRS inaction, it did not rise to a litigable injury because they weren't actually discriminated against.
2) To the extent that their interest in having their kids attend integrated schools, the majority admitted that was a cognizable injury but said there wasn't enough of a causal link.

Front 10

Linda RS

Back 10

TX case, crime not to pay child support, Linda tries to get the state to prosecute her (illegitimate) kid's dad for failure to pay but they only do it for children born in wedlock. Court says no standing here, citizens have no judicially cognizable interest in prosecution of another citizen.

Front 11

Frothingham

Back 11

Original TP standing (or lack thereof) case. She alleged that gov't had gone too far in its regulatory powers via a tax. Court says you have to show injury above and beyond what all taxpayers suffer.

Front 12

US v Butler

Back 12

Similar to Frothingham, but only some corps had to pay the tax and the money the tax raised was kept separate, so there's enough for standing.

Front 13

Flast

Back 13

Basically, if you sue over an Establishment Clause violation you can have standing even if your only injury is that you're a fed taxpayer and your taxes go up to support the alleged establishment.

Hard to reconcile with Frothingham (maybe Frothingham was only about prudential, not constitutional, standing? And further, maybe the EC itself creates a cause of action? Dubious...) so Flast has been criticized a lot and is basically limited to its facts.

Front 14

Lujan v Defenders of Wildlife

Back 14

Even when Congress purports to confer standing, you still need the constitutional minima to get into court. Specifically, concrete interests must be at stake.

Harm of not being able to see animals you want to see is sufficient to support standing, but it must an "actual or imminent" harm. Saying you might travel to a place where these animals are isn't enough.

Front 15

FEC v Aiken

Back 15

Congress purported to confer standing on all voters to sue groups who don't file the right paperwork re: political donor disclosures etc. AIPAC doesn't file the paperwork so some private citizens sue. Brennan for majority says that even though there's no special harm beyond what all voters suffer, it's sufficiently concrete for Congress to confer standing. Widespread-ness of an injury does not automatically prevent standing, it only goes to the prudential aspect of standing.

Front 16

US v Richardson

Back 16

Fed TP wanted court to order CIA to disclose its expenditures as he said the const required. SC said he lacked standing. But what if Congress purported to give him (and all similarly situated) standing? Aiken reasoning seems to say that it would be enough to give him standing (though maybe there's a difference between taxpayers and voters? weak-sauce argument).

Front 17

Raines v Byrd

Back 17

Not enough IIF to give individual congressmen standing to sue over a line-item veto in a budget.

Front 18

Buckley v Valeo

Back 18

Seems to suggest that acting on behalf of the US in court (a la "ex rel") is acting as an officer of the US and thus requires appointment by the executive branch, not just by Congress.

Front 19

Ex rel Stevens

Back 19

Qui tam suits do two things: assign part of the money the gov't can get to the P; and authorizes P to bring suit on behalf of the US for the other part of money (the money that's going to the fed gov't).

Scalia reserves judgment on whether Congress can constitutionally do that, but if it can, then the result *is* a case/controversy for purposes of Art III (holding).

Front 20

Perry v Schwarzenegger

Back 20

Intervenors in Prop 8 (who were the official proponents of the amendment) are the only party to appeal the dist court judgment. Do they have standing? Yes. CA state law permits official proponents of ballot initiatives to represent the state in such actions because to do otherwise would render the initiative process wholly nugatory.

(This represents possible differences between CA and fed practice: highly unlikely that the intervenors would have standing if they weren't representing CA, and Art II might have something to say about doing this on a federal, not state, level)

Front 21

ASARCO

Back 21

P's sue in state court against a state-wide law (no special injury, but in AZ they didn't need any) and they end up winning in state SC. ASARCO had intervened on state's side and appealed to the fed SC. ASARCO clearly had standing (they would have to pay more money if the judgment is upheld!) but what about the original P's? Under fed law, they would have no standing if the case began in fed court! (It's only a declaratory judgment, not money)

Majority ends up saying that ASARCO can appeal, even though technically P's don't have standing, so that they don't get screwed over, basically. But they also concede that the P's couldn't appeal if ASARCO had won in state court!

Tough case, you either have to play fast/loose with the meaning of case/controversy or else screw over ASARCO.

Front 22

Third Party Standing

Back 22

Usually conceived of as an exception to the general rule that you can't assert someone else's injury as your way into court; this way of thinking sees TPS as a prudential matter that can happen when there are sufficient policy rationales for it.

Nelson (and Monaghan) think it can (almost always) be cast instead as the P asserting her own rights and thus no discretion or exceptions are necessary.

But for true TPS cases, two conditions need to be met (page 158):
1) The litigant must have a close relation to the third party whose right he is asserting; and
2) There must exist some hindrance to the third party asserting their right directly.

Front 23

Craig v Boren

Back 23

Example of re-casting third-party standing cases as about the rights of the people actually in court. Near beer case. Re-cast it not as "can the vendor assert the EPC rights of 18 y.o. males," but rather as "is the vendor's EPC right to not have to take gender into account when selling near beer violated?" Then there's no TPS question.

Griswold v Connecticut is the same: the doctor, rather than asserting the couple's right to birth control couldn't be constitutionally abridged by the state, could just argue that the state hadn't proved a necessary element of its case against him (that he had aided/abetted someone in doing a criminal act)!

Front 24

Powers v Ohio

Back 24

Best case for true third-party standing. Powers challenges state racistly striking black jurors from his jury -- it makes the most sense to say that he was asserting their rights.

Front 25

Yazoo

Back 25

D claims that some of the applications of the state statute would be unconstitutional, but the application the court is being asked to make in this case is not unconstitutional. So if the statute is separable then it can be applied in const'l cases like this one, but if it's not separable then it must all be struck down and D can't be made to pay here.

Front 26

Separability and TPS

Back 26

If there's reason to believe that a statute might not be separable in its const'l and unconst'l applications, then even a D being prosecuted under the const'l part has standing to assert that 1) there are unconst'l applications; and 2) they are not separable and so the whole law should be struck down, even as applied to her.

This is often called TPS, but Nelson thinks it's more just the D asserting her own rights not to be convicted under a statute that cannot constitutionally provide a rule of decision in her case.

Overbreadth doctrine says that this is what can happen in free speech cases because even if an overly-broad statute is used against someone that a const'l statute could convict, we don't want to allow more time to go by chilling the constitutionally protected speech that the overly broad statute might cover. But you can just think of this as a constitutionally mandated inseparability provision for first A laws.

Front 27

Brocket

Back 27

When people challenging an overbroad 1st A law are the ones themselves whose expression the 1st A protects (the people against whom it would be unconstitutional to apply the statute are in court), the gov't doesn't always need to invoke the overbreadth doctrine if this case would involve an unconst'l application of the law and this is a good vehicle for drawing a crisp line between what is and isn't unconstitutional, then they can do so and leave the statute on the books. The decision itself can solve the chilling problem. The court can find the different applications separable now!

Front 28

Jews for Jesus

Back 28

If the the court can articulate a narrowing interpretation of the statute right now that promises to avoid future chilling of protected expression while necessary lines are being drawn. No need to invoke 1st A inseparability then.

Front 29

Facial and as-applied challenges

Back 29

Prof. Fallon says facial challenges are not exceptions to the case/controversy requirement. To the contrary, what we call facial challenges come up in cases/controversies in which a party claims that a statute should not supply a rule of decision in his case.

And it's worth remembering that even if a statute is challenged on its face, and the court agrees, that doesn't repeal the law. In another situation the court can change its mind if it's presented with a situation where applying it *would* be const'l. So there's an important sense in which all that a court really decides when it holds a statute unconstitutional, whether on its face or as applied, is that the statute does not supply a valid rule of decision in the case now before the court.

Still, there are different reasons why a statute doesn't supply a valid rule of decision in a case. Some arguments will focus on the litigant's own circumstances: the litigant may concede that the statute can supply valid rules of decision in other situations, but not as applied to him.

By contrast, other arguments a litigant might make, if accepted by the court and applied in later cases, would effectively prevent the provision from being applied in any case (for the same reason it can't validly be applied in the present case). We can call this latter type of argument a facial challenge to the provision. This makes the court's controversial Salerno statement to be more of a definition than a test.

Front 30

Salerno

Back 30

Page 175: Courts should reject facial challenges to a statutory provision unless the challenger "establishes that no set of circumstances exists under which the provision would be valid."

Defines facial challenges (sometimes read as a test, but it's better read as a definition).

Front 31

Ayotte and Carhart

Back 31

Abortion cases where the court doesn't read const'l limitations on separability into anti-abortion statutes; in other words, if an anti-abortion statute has no health-of-the-mother exception there's no reason, as in 1st A overbreadth cases, to assume inseparability.

Front 32

Friends of the Earth

Back 32

Interests at stake to keep a suit alive for mootness purposes can be less than that required to get it started for standing purposes--but it can never be zero!

Front 33

US v WT Grant

Back 33

One situation which shows standing for mootness purposes is less than for general standing purposes.

Voluntary cessation can't defeat an injunction, the case is not moot just because the dude who can't be on two boards of directors resigns from one. Although if he had never been on two boards at once there probably wouldn't have been standing (/it would be unripe), the amount of interest at stake here is still enough to support standing and prevent mootness.

Front 34

First Nat'l Bank of Boston v Bilate

Back 34

"Capable of repetition yet evading review" - another way to prevent mootness with an interest at stake that wouldn't be enough to support standing on its own.

This case involved a company allegedly improperly involved in elections--no time to get the case through before the election happened, but they kept doing it every 4 years (or however often). This is a situation where there's enough interest at stake to prevent mootness. (See also abortion cases, such as Roe v Wade.)

Front 35

Sosna

Back 35

How does mootness work with class actions? SC says that even if the named P and the D are no longer adverse (though they were at the time the class was certified), if the remaining class members have sufficient standing the case can continue.

Front 36

Geraghty (page 194)

Back 36

Extended Sosna. If the named P wants to certify a class, but the dist court refuses, and the named P appeals, but on appeal he is no longer a member of the class, can the case still go forward?

SC says yes, the app court can at least review denial of certification of the class. If they were right to deny it, then yes the case is moot, but if they were wrong to and other members of the class still have a live dispute with the D they can certify the class (as long as the named P would still be a good representative for them--not crazy, since that's what happened in Sosna).

Front 37

Munsingwear

Back 37

Disposition of a case that becomes moot on its way up the appeal ladder? It should be vacated and remanded to the lower court with directions to dismiss it as moot. Reasoning is that it should not have preclusive effect between the parties because it wasn't able to be fully litigated, clear the way for future clean-slate litigation between the parties if need be.

3 exceptions:
1) Doesn't apply to criminal cases.
2) Lower judgment won't be vacated if losing party unilaterally moots the case--we don't want gamesmanship!
3) Doesn't apply if parties settle--if you settle you give up the right to review.

Front 38

DeFunis

Back 38

Case about the guy who wanted to go to law school, but it became moot because he graduated before it got to the SC. It came from the state courts, and the SC doesn't have supervisory control over those courts, so it just vacated the lower judgment and remanded it for the state to deal with as it wished.

But now, the SC doesn't even vacate the state court judgment if it comes up through the state court system--they just remand it.

Front 39

Abbot Labs

Back 39

Prudential aspects of ripeness doctrine (beyond const'l core minimum):
1) Fitness of issues for judicial decision
2) Hardship to the parties of withholding court consideration

This case made it a lot easier to get pre-enforcement judgments in the area of administrative law, lowered the ripeness barriers a lot.

Front 40

O'Shea v Littleton

Back 40

???

Front 41

LA v Lyons

Back 41

Lyons was stopped by the police and allegedly beaten up. He wanted damages (no justiciability problem there!) but he also wanted an injunction.

Two major points:
1) Just because a P has standing for damages doesn't mean he has standing for an injunction. Standing must be established for each remedy sought.
2) To establish standing for an injunction, P must demonstrate a real and immediate threat that he will be subject to the action he wishes to enjoin in the future. (Lyons didn't meet that in this case, acc to the majority.)

You could classify this as ripeness (no interest at stake yet--he's not being choked or in danger of it!) or as mootness (the choking is over, no more case!), either is plausible. You also could put this under the standing doctrine, which is what the Court actually did: he lacked the kind of IIF to seek the kind of injunction he was seeking; to do that he needed to show a real and immediate threat that he would suffer from chokings form the LA police in the future--to put that in Lujan terms, he would have to show "actual and imminent harm"--but he couldn't do this, so no standing. No IIF.

Alternative to invoking any justiciability doctrines, you could just argue that Lyons had failed to make the sort of showing necessary to get an injunction on the merits. At least in the absence of special statutory authorization, traditionally to get an injunction you needed to show a risk that without the injunction the P will suffer irreparable harm. You could just say that risk wasn't big enough in Lyons to deserve the injunction on the merits. [Why does it matter whether you say this was a loss on the merits or a lack of standing? Congress can change the merits, if it wants, but it can't change the const'l minimum of having no IIF!] [[Nelson seems to think this is about the const'l minimum, not just a decision on the merits]]

Front 42

Roe v Wade (and contrast it with Lyons)

Back 42

How did this case have standing? A few points:
1) It was a class action (remember how that works?)
2) Even though the chances that the same woman (Roe) would get pregnant again and want an abortion again, it seems plausible to say it's higher than the chance that Lyons would get choked at a traffic stop again. Remember, CoRYER has to be between the same two parties.
3) The "capable of repetition yet evading review" nuance to mootness only applies if at the time of filing there was standing and it drops off later--this was met in Roe v Wade, but not in Lyons.

Front 43

Luther v Borden

Back 43

RI civil war case, raises the political question doctrine. Two state governments, which should the fed gov't recognize? State courts say the old gov't, and to the extent that this is a question of state law, the SC doesn't want to second-guess them on questions of state statutes and the state const. But this might not be a question of state law: the const Guarantee Clause says that the US shall guarantee to every state a republican form of gov't!

But here, too, there was a reason for the SC not to decide: another branch already had! It would be easy if Congress had expressed a view on this point, most naturally by choosing to seat delegates from one government over the other when two sets are sent to them; Congress's decision would be binding in later litigation, that't the PQ doctrine at work.

Unfortunately, Dorr's rebellion was too short-lived to force Congress to choose which reps to seat. Next best thing: way back when, Congress had passed a law saying that in the case of rebellion, a state governor could call on the US pres can call forth the militias of other states to quell the insurrection. RI's governor (under the old, colonial charter gov't) had done this and the Pres had responded--not by calling out the neighboring states' militias, but by recognizing the RI governor's authority. That is a determination made by authority validly conferred by Congress, so it counts the same way as choosing whom to seat would count and is binding on the courts in all later litigation. PQ, baby!

Front 44

Marshall Field v Clark

Back 44

"Enrolled bill" doctrine - subset of PQ doctrine. Courts can't look into whether a law was validly passed as long as the House/Senate certified that it was. Could look at this as a public rights question, but Nelson prefers to think of it as an Art I S 5 case: House/Senate get to set their own rules.

Front 45

Munoz Flores

Back 45

Courts can look at whether a law really raises revenue or not, and can decide whether it started (as the const requires) in the House, and can even look behind docket numbers that claim the bill started in the House to the underlying reality.

How to reconcile this with Marshall Field?? Hard. Marshall Field was more about internal house proceedings (was the bill passed or wasn't it?) whereas Munoz Flores is about the interaction between the House and Senate? Or maybe it's more like the constitutionality of a bill that the courts obviously don't defer to Congress on? Reconciliation is definitely hard.

Front 46

Baker v Carr

Back 46

Modern formulation of PQ doctrine. 6 factors, at least one must be present for PQ doctrine to be relevant:
1) Text of Const demonstrably commits the resolution question to another branch of gov't; or
2) No judicially discoverable and manageable standards for resolving the issue; or
3) It's impossible to decide the issue without an initial policy determination of a kind clearly not for judicial discretion; or
4) A court couldn't possibly exercise independent judgment about the issue without expressing lack of respect due coordinate branches of gov't; or
5) Unusual need for unquestioning adherence to a political decision already made; or
6) Contrary decisions on the issue by different branches of gov't would pose too great a risk of embarrassment.

Front 47

Nixon v US

Back 47

Fed judge, Nixon, was impeached, and the Const says the Senate must try him. But only a committee of Senators heard the live testimony, the rest just read the transcript and briefs from both sides. Enough Senators voted to convict him in the end. But did that comport with const'l standards? Yes.

Majority (Rehnquist) said 2 Baker factors were met: Text of const commits it to the Senate, and no judicially discoverable and manageable standards to decide the issue.

White disagreed that it was a PQ doctrine case: courts can look into this. But he ends up agreeing on the merits: "try" doesn't require much process.

Souter also concurs in the judgment, but wants to split the baby: give Senate "Chevron"-like deference--as long as they're not flipping a coin to convict people, they're golden.

Why is this const'l clause unique, though? Tough, but Nelson's best answer is that the Senate is basically exercising judicial power here, as given to them by the const, and it's meant to be final. No appeals!

Front 48

Marbury v Madison

Back 48

Dicta about PQ doctrine: to the extent that Sec of State was using discretion and helping the pres enact his policy decisions, his actions should not be reviewable in fed courts--which makes sense because these are public rights, the traditional PQ doctrine domain. But to the extent that the Sec of State is discharging his (or her, Madame Secretary Clinton!) ministerial, non-discretionary duties in a way that affects private rights (as was the case here), courts can review it--no PQ, baby!

Actual holding though is that the SC does not have original jur over this case--Congress had purported to confer orig jur here, but that grant was unconst'l! Why? Art III S 2 says that SC shall have orig jur over the first three categories of cases/controversies listed in Art III S 2 (and app jur over the rest), but Marbury's case isn't in one of those first three. And Marshall says that that list of the types of cases the SC has orig jur over cannot be expanded.

He has two arguments for this:
1) It would make the wording about "shall have jur" over certain cases "surplusage", but this isn't very convincing because the const often sets up a baseline and gives a mechanism for changing it as needed.
2) The later language about what the SC "shall have" app jur over implies that the two are exclusive--shall have orig or app jur, as dictated, but never the twain shall meet! Marshall is reading an implied "and NOT app jur" at the end of the first sentence--but that would lead to us needing to symmetrically read an implied "and NOT orig jur" at the end of the second. But that is majorly problematic because there are tons of times we give the SC app jur over things that it could have had orig jur over, which can happen either when
i) Congress gives lower fed courts orig jur over things that the SC could have orig jur over, thus giving the P a choice of whether to file the suit originally in the SC or a lower fed court; or
ii) A state court heard the case and the SC is getting it on review.
Marshall actually thinks that what we should do, but that's crazy today!

Takeaway:
i) Can't add to (or take away from) the Court's original jur (it will eternally be just those three types of cases!)
ii) Court's orig jur is *not* exclusive (lower fed courts and state courts can hear these cases)
iii) Congress *can* add to (and take away from) Court's app jur--that's where Congress's real power lies with regards to the SC's jur. Can definitely take away from SC's app jur because Art III specifically says Congress can make exceptions to that list of 6 types of cases, and apparently the Court is OK with Congress giving it app jur over cases that could have been brought in the SC originally.

Front 49

Ex parte McCardle

Back 49

[Preliminary note: the SC mentions here (for the first time?) that when Congress "confers" app jur on the SC, we just read that as making an exception for all the other types of app jur that aren't conferred--this is because the const gives the SC app jur over all the cases it can as a baseline but lets Congress make exceptions to that list.]

So McCardle gets his writ into the SC, but then after oral arguments Congress repeals their app jur to hear writs of HC on appeal! Is that OK? Yes. SC isn't going to look into Congress's motives (at least, back then--today they might be more willing to).

Upshot: Congress can make pretty wide-ranging restrictions to SC's app jur.

Front 50

Klein

Back 50

Congress can't prescribe subst rules of decision for the SC in constitutional cases, can't tell the SC you only have jur if you rule the way we want you to rule.

Front 51

Sheldon v Sill

Back 51

Lower fed courts get their jur entirely from statute, not from the constitution.

2 conditions must be met for a lower fed court to have jur over a case:
1) Case has to be of a type that the US judicial power can adjudicate (i.e., it must be of a type listed in Art III).
2) Congress has to have actually conferred jur over that kind of case to the court via statute.

Front 52

Hunter's Lessee

Back 52

A lot of bold dicta that haven't really held up over time. First, Storey claims that at all times, at least one fed court must have jur (whether orig or app) over every kind of case listed in Art III. Alternatively, this might only apply to the first three categories of cases/controversies, because the const says "all" for those but not for the last six.

Professor Amar defends this latter view, and we talked about it at some length and why Nelson thinks it's wrong.

Front 53

Battaglia (2d Cir case)

Back 53

Portal to Portal Act. Purported to strip a substantive right away from workers that they had previously enjoyed under the FLSA, and in case the courts didn't think they could retroactively do that, Congress also purported to strip jur over all cases trying to enforce that right. Whether that second part is constitutional if the first part isn't is a hard question: the 2nd Cir was able to sidestep this tough question by just finding that the first part (retroactively removing the subst right) was constitutional since the right wasn't fully vested until there was a court judgment on it. This is fine if these rights are wholly statutory--Congress can change the subst law any time before a final judgment is entered--but what if the right is now partly contractual? That could happen if we are supposed to read the right into the contracts between the two parties. But even then the 2nd Cir thinks Congress could do away with the rights here.

But the other tricky wrinkle here is that Congress wasn't just stripping fed courts of jur, they also purported to strip state courts of jur to enforce these rights too! Would that be const'l? Usually when Congress strips state courts of jur it's so that fed courts can have exclusive jur, which is OK under Congress's N&P powers. This seems like a combo of N&P + Commerce Clause powers.

Front 54

Dynes v Hoover

Back 54

Military tribunals aren't Art III courts and don't need to be.

[I should probably expand this later]

Front 55

Murray's Lessee v Hoboken

Back 55

Dicta say that no Art III judicial power necessary when collecting taxes--exec branch can do that more quickly, but it's not clear how good law that is.

Front 56

Crowell v Benson

Back 56

An admin agency makes determinations about whether longshoremen are entitled to workers' comp. Dist Court has to sign off on it, but how much deference (if any) do they have to give to the agency's findings of fact? Dist Court thought it couldn't give any deference, but SC said no, you only need to conduct your own evidentiary hearing on the "jurisdictional" facts, such as whether Benson really was an employee and if the injury really happened on the high seas, etc. Deferential review on all other facts. This is just one acceptable procedure for finding facts; Congress could have said you have to give a jury the opportunity to find these facts.

Remember, money (a core private right) is at stake, so everyone agrees that the Art III JP of the US is required here, but the SC says the agency commissioner can be thought of as an extension of the fed court for these purposes. (Nelson thinks this is a stretch, but if you buy it then this case fits into the framework.)

Front 57

Atlas Roofing

Back 57

First case to depart from traditional framework of requiring application of Art III JP for taking away core private rights.

Commission's determination of your claim if you contest your citation for a violation of the law is appealable directly to a Circuit Court and they do regular, deferential appellate review! But if that commission is an extension of the fed courts, there should be a strong argument that a jury trial is necessary (which there isn't here). So we have to go beyond that Crowell framework. Court sees this as just outsourcing the handling of public rights to an admin agency... but that's pretty ridiculous because the gov't can *abrogate* public rights (a la pardoning a criminal) but can't uphold them as against core private rights (except perhaps in the tax context)--until now!

This almost certainly wouldn't hold up where life/liberty interests are at stake, but apparently in civil cases where property is at stake, Congress can outsource initial judicial determination to exec branch.

Front 58

Northern Pipeline

Back 58

Tries to cabin Atlas Roofing, prevent it from expanding any further. Atlas Roofing only applies when it's private rights versus public rights on the other side (though Brennan uses "rights" differently than we talked about how those terms were traditionally understood back in the 19th century).

When it's private rights vs private rights, you need to have Art III JP, though agencies can still act as adjuncts of fed courts in such cases a la Croswell. The extent to which such adjunct-ness can occur is dependent on the rights at issue--if they are statutorily created than Congress has more power to outsource decisions about them to admin agencies, but if they're property or contract rights Congress's power is at a minimum in that regard. Doesn't have to draw very fine lines because this case clearly went too far: these bankruptcy courts had tons of room to find facts about all kinds of stuff.

Nelson sees this decision as having two goals:
1) Cabin Atlas Roofing
2) Undermine right/privilege distinction

Thomas case says goal #2 didn't get very far.

Front 59

Thomas v Union Carbide Agricultural Products

Back 59

Came after Northern Pipeline. Upheld a regulatory scheme that said if a company wants to sell a pesticide, it has to submit a lot of research; then later if another company wants to sell that pesticide it can either do its own paperwork or compensate you for borrowing yours. If you can't agree on a price, you and they have to enter into binding (non-Art III) arbitration that will fix a price.

This is OK because gov't can condition its allowing you to sell your pesticide on giving up your property rights in that info. Once the gov't has the info (as it does here) it can do what it likes with it--it needn't even provide for any compensation for other companies using it later! So any money the first company gets is a legislative grace (or mere privilege, in 19th century terms) and so can be determined by a non-Art III tribunal. And looking at it from the perspective of the second company, their core private right of money is taken after arbitration, true, but the impliedly consented to arbitration by submitting to this process--they could do their own research if they wanted!

Nelson sees this as consistent with the traditional framework: a simple "privilege" case.

Front 60

Schor

Back 60

Came after Thomas v Union Carbide. Waiver plays a big role in this. His brokers sued Schor to get money from him, but he successfully argued that they should take it to an admin agency instead, so the fed court dismissed the suit and let Schor lead the way to the agency arbitration. Then when Schor lost there, he tried to argue that the agency had no jur to hear the case--sorry, buster, but you waived any right you had to an Art III trial!

Nelson sees this as consistent with the traditional framework: core private right case, but there's consent.

Front 61

Granfinanciera

Back 61

Analysis of the question of whether a jury is required by 7th A is the same analysis as whether an Art III tribunal is necessary. The answer is that only when there's a public right can you have an admin agency determine the question or when you can dispense with a jury. (Thomas isn't really an exception because it's a public rights statutory scheme and the rights are only statutory ones anyways.)

Front 62

Stern v Marshall

Back 62

About when non-Art III tribunals can adjudicate rights/privileges. Uses different terminology (i.e., calls statutorily created rights "public rights" which is weird--makes more sense to call them private rights but then classify them as privileges, not core private rights; the exact definition of public rights that the majority uses is "rights integrally related to some gov't action" with Thomas being the paradigmatic case of public rights; Nelson would define public rights as ones held by the gov't or by the people collectively, whereas any right held by an individual--like those in Thomas--is a private right) but ends up in the same place: privileges can be adjudicated by non-Art III tribunals.

Front 63

Tidewater Transfer

Back 63

Issue: can Congress, consistent with Art III, confer jur over cases where the only basis for that jur is diversity jur and one of the parties is a citizen of DC and the other is a citizen of a state? Art III says suits between citizens of different states, and DC is not a state! SC says it's a constitutional grant, but very fractured reasoning.

Two rationales given:
1) DC counts as a state for purposes of Art III. This is very weak though because in a number of other places throughout the const, DC is differentiated from the states. This theory loses 7-2.

2) Congress undoubtedly has authority to set up courts in DC and they don't have to be Art III type courts--they can hear cases outside the Art III list and the judges don't need life tenure, etc. So Jackson takes that and runs with it:
i) Congress could set up such a DC court outside of DC, like say in AZ, and just let it hear those DC type cases, right?
ii) and in fact, Congress could even make an entire parallel court system, having a DC court next door to every federal district court in the nation.
So the conclusion: why not collapse them into one: empower fed dist courts to sit as DC type courts when it's a DC resident suing in "diversity"!

This is certainly an ingenious argument, but unclear that it fits with how we normally think of Congress interfacing with Art III courts. Jackson himself concedes that Congress can't make Art III courts do things outside the judicial power, like issue advisory opinions. The most natural reason why that would be is because they only have the JP and nothing else. Regardless, Jackson is writing for only 3 Justices--and the other two who agree in the result strongly disagree with his reasoning! So there's a majority against both rationales, but 5 votes for the result! I LOVE THIS!

Front 64

Tafflin v Levitt

Back 64

As a matter of statutory interpretation, assume that fed jurisdiction is not exclusive of state jurisdiction. It's possible to make fed jur exclusive by implication instead of expressly, but nowadays it's very rare to find it unless the fed statute comes out and says it.

Front 65

Ableman v Booth

Back 65

States can't issue writs of habeas corpus against someone being held pursuant to fed judicial proceedings. This makes sense because it would allow the states to interfere with fed court cases--separation of powers problem!

Front 66

Tarble's case

Back 66

state courts can’t issue writs of habeas corpus to free people held under fed authority by an executive officer. This could have been reached as a matter of statutory interpretation (i.e., the statute that grants fed courts jur over petitions for writs of habeas for fed prisoners could have been understood to implicitly strip state courts of jur over those petitions) but the Tarble Court instead cast its analysis in constitutional terms: const flatly forbids this. Court says to allow this would be like allowing Wisconsin to enforce Michigan law within WI’s borders.

But these are people within a state’s borders—why not allow the state courts to issue injunctions against them even if they work for the fed gov’t? Admittedly you can issue injunctions against fed officers in their personal capacity. Ends up being about a spectrum of remedies: damages out of a fed officer’s personal pocket are at one end (allowed—though of course Congress could give them fed law defenses on the merits or protect them by allowing for removal to fed court); specific relief like replevin and ejectment probably also OK; and prohibitory injunctions—saying you can’t do this one thing because it’s illegal but you’re free to do anything else you need to do—are OK according to Nelson (though close to the line); but injunctions requiring a fed officer to affirmatively do something in his official capacity are not OK under the const (see McClung v Silliman, prohibiting mandamus against fed officers)—that’s too much like bossing the fed gov’t around, it’s like suing the fed gov’t directly and thus sovereign immunity kicks in (NB: no symmetry on this point—you can sue state officers to get around state sovereign immunity, but doesn’t work against fed officers).

Front 67

McClung v Silliman

Back 67

States are constitutionally prohibited from issuing mandamus against fed officers, telling them what they have to do in their official capacity.

Front 68

Testa v Katt

Back 68

Blackmun argues that the 1789 Judiciary Act conferred jur on state courts--but that's pretty far-fetched.

But what happened is that there was a fed law that put a ceiling on the prices of certain cars. Testa claims Katt broke that law and sues in fed court. RI state courts ultimately say they won't hear such a foreign, penal claim.

Blackmun says that's not a valid reason for a state not to hear a case: every valid fed law is incorporated into the law of each state. That's the point of the supremacy clause.

Ultimately, states can't discriminate against federal causes of action. There can be valid reasons for a state court not to hear a fed cause of action--best example: if Testa files his case in the state family court--but in general you have to treat state and fed causes of action equivalent. Unclear where the non-discrimination principle comes from--const? statutory interpretation?--but current doctrine enforces it.

Front 69

Clafflin v Houseman

Back 69

Fed and state law form one body of jurisprudence, thanks to the supremacy clause. Una lex.

Front 70

Haywood v Drown

Back 70

NY state statute tries to say that no state court has jur over any claim (whether state or fed) against any state official--instead, you have to sue the state and it has to go to a special court of claims. This means state courts don't have jur over S 1983 Bivens actions, among other things.

SC says that you can't close state courts to Bivens actions--even if you think they're too vexatious, S 1983 is a contrary public policy decision and it wins because of the Supremacy Clause. (Though even after this decision, it was valid for the state to refuse to hear state causes of action against state officials in state courts.)

Front 71

Dice

Back 71

Congress has a fair amount of power to regulate how state courts adjudicate fed causes of action. Obviously, within its enumerated powers Congress can provide substantive rules of decision, but Dice also says that it can provide procedural rules as well. It's very rare that they do the latter, though--they arguably didn't even do it here, but the majority says they did: states have to give a jury trial for the cause of action at issue in this case.

Lots of questions remain about whether Congress can do this for all state cases--what about if it's a state cause of action? Or could they ban jury trials in certain state causes of action (like in product liability cases)? We don't really know, there might be federalism concerns, might have to show a tight nexus between ends and means.

Front 72

Felder v Casey

Back 72

WI had a statute that did two things to all claims against local officials in state court:
1) It was a general statute of limitations (timing stuff)
2) It required you to take some pre-filing steps that were designed to encourage settlements.

WI interpreted this statute to apply to all claims against local officials, even fed claims. But SC said they can't enforce this re: fed claims such as S 1983 actions. As Nelson understands it, S 1983 pre-empts state law on this.

Front 73

28 USC 1254

Back 73

Provides for fed SC review of cases from inferior fed courts. Discretionary via writ of certiorari.

Fed court can issue writ of cert for any case in a circuit court--even before that court renders a final judgment on it.

Front 74

28 USC 1257

Back 74

Provides for fed SC review of state court decisions. Discretionary via writ of certiorari.

More limitations on when cases can get to the SC than for fed cases under S 1254. To wit, there must be
1) a final judgment or decree
2) from the highest state court in which a decision could be had
before cert can be granted.

Also, the case has to be one of the following three types:
1) A case in which the validity of a treaty or fed statute is drawn in question; or
2) The validity of a state statute is drawn in question on the grounds that it is repugnant to fed law; or
3) "any title right privilege or immunity is specially set up or claimed under the Const or the treaties or statutes of, or any commission held or authority exercised under, the United States" (phew!)

Note that div jur is left out--SC could have been granted app jur over those cases coming out of state courts, but it's carved out of S 1257 (of course div cases coming out of fed courts *are* reviewable by the fed SC because S 1254 includes them)

Front 75

Murdock v Memphis

Back 75

Further limitations on SC review of cases coming out of state courts beyond what S 1257 explicitly requires.

If there's a fed law and state law cause of action, and they're sufficiently intertwined (common nucleus of operative fact and all that jazz) you might think that the SC could review both decisions. But no, there's only jur over the fed law cause of action. Why?

Well, original precursor of S 1257 from 1789, Congress explicitly had this rule (and in fact, there were other weird limitations on the fed law questions that the SC could review from state courts, like only if a state court had refused to recognize a fed right in a case). When the statute was amended in 1867, that explicit wording about not hearing any other matters beyond the fed question stuff was left out, but Murdock v Memphis says that didn't change much.

Two ways to reach this conclusion:
1) Statutory interpretation: unless Congress explicitly overruled the previous rule, just taking out the one sentence shouldn't be enough to overturn it. This is a statutory interpretation rule that requires Congress to be explicit before it can change anything. Not super strong, but it's plausible. But there's another way to get to the result:
2) Const might prevent Congress from conferring such jur over state law claims in this instance to the fed SC! Structural principles of federalism are at stake! Court didn't reach this because it rested on statutory interpretation, but Justice Miller doesn't seem to think it's an easy question. But really? The const gives the SC app jur over pure diversity cases, so why not state law claims that are intertwined with a fed law cause of action? Meh.

Front 76

Michigan v Long

Back 76

What should the SC do when it's unclear whether a state SC decision had an adequate and independent state law ground? Should it err on the side of assuming that there is or is not an AAI SLG?

SC decided to err on the side of there not being an AAI SLG, so if it's ambiguous whether there are two bases for the decision they'll feel free to find jur, hear the case, and vacate the state court judgment if they feel like they messed up the fed law. If it turns out that there is an AAI SLG then the state supreme court can just reinstate the judgment on that basis.

This is basically a "clear statement" rule: state SCs need to clearly and explicitly state that there's an AAI SLG or they risk having to deal with it again and wasting everybody's time.

Front 77

Indiana ex rel Anderson v Brand

Back 77

State and fed law can interact--state-created rights might need to be protected by the fed const and thus be able to trigger the SC's app jur under S 1257--this case is a good example of that principle at work.

Indiana had contracts with teachers to teach in schools in the state, but two years later the legislature purported to exempt some of the teachers from some of those contractual protections. Ms. Anderson sues saying you're violating the Contracts Clause by retroactively changing the substance of my contract! State SC disagrees with her, says it's not abrogating a right but a mere privilege so it's OK to take it away in this way.

Fed SC took the case and decided, somewhat reluctantly, to second-guess the state SC on an issue of state law because it directly implicated a fed right (Contracts Clause); SC ultimately disagreed with the state SC and ruled for Anderson. To not look into this would allow states to make end runs around the Contracts Clause, harming fed interests, so we don't want to totally defer to states on such questions.

Front 78

Bouie v City of Columbia

Back 78

If a judicial construction is so unexpected in reference to previous law, it can't be given retroactive effect. This puts some outer limits on state courts' ability to interpret statutes creatively.

Front 79

NAACP v Patterson

Back 79

Limits on procedural AAI SLGs. The state SC ruled that the NAACP failed to follow the correct procedure so its suit is barred on AAI SLGs.

But the fed SC shuts that argument down because up to that point every other case that had followed the same procedure had been deemed A-OK and so this novel interpretation was not OK. Two (three?) possible reasons why:
1) The state might just be making crap up to keep the NAACP out of court--that's not an adequate and independent state law ground, it's a load of crock. If the rule is invented for preventing fed question jur, it's no good.
2) Even if the fed SC agreed with the state SC that their interpretation of the procedures was possible, there still may not have been enough notice to the NAACP. This might be part of the Due Process Clause, or it might be inherent in the setup of S 1257: if a state has app courts it can't use them to lure parties into traps that keep them from triggering fed SC review!

Front 80

Klaxon

Back 80

When in fed court and Erie tells you to apply the relevant state’s subst law, how do you choose which state’s law is the relevant state law to apply? Klaxon says to use the choice of law rules of the state in which the fed court sits—regardless of whether they were announced by state legislatures or by state courts.

Some people call this an application of Erie, but that’s not right. Congress has power to enact choice of law rules for fed courts, so they could have had Erie but enacted their own COL rules to determine which state’s subst law to apply. In effect, we have a gap where states cannot legislate (they have no power to dictate which COL rules a fed court should use) but where there is no written fed law (RoDA doesn’t address this, nor does any other written fed statute) so we’re in an area where fed courts apply federal common law—and the fed SC decided to piggyback on state COL rules.

Front 81

Hinderlider

Back 81

disputes between states about water rights are implicitly federalized by the Const, and since there is no written federal law on the subject, FCL governs. Court looked to common law and law of nations for rules of decision—showing that just because it’s FCL doesn’t mean the Court will make up a whole new rule, it will be influenced/constrained by the common law, especially as it exists in American states. Nelson’s article cited in Note 6 on page 630 makes this point and argues that there still is a general common law in existence, Erie just changed the relationship between the Court and the states about it. When there’s a case of first impression within FCL, Erie doesn’t say to ignore common law: instead, fed courts are influenced by states’ opinions of common law just as states are when they confront an issue of first impression.

Front 82

US v County of Allegheny

Back 82

When the gov’t makes a contract, for example, what law governs it? US v County of Allegheny says that the const has implicitly federalized this field, so FCL governs. To fill in the content of the FCL here, though, the Court looked to the common law of contract—look to the Restatement of Contracts and the UCC, not because these apply of their own force but because they reflect the gist of American jurisprudence in this area.

Front 83

US v Standard Oil

Back 83

when the gov’t sues on behalf of a soldier for a tort, FCL applies, not state law. However, common law doesn’t apply a cause of action here and since Congress hasn’t purported to create one then the fed SC said there isn’t one here as a matter of FCL, so the gov’t can’t assert a valid claim.

Front 84

Clearfield Trust

Back 84

the const pre-empts state law-making power over areas where the gov’t wants to be reimbursed for fraudulent checks (?). They use policy reasons mainly to support this assertion: it wouldn’t be good to have the gov’t’s rights and obligations subject to all kinds of different rules in different states, so we’ll use a uniform federal common law. But even if it’s FCL, it could have piggy-backed on the state’s law (a la Klaxon and COL rules) either in whole or within tolerable limits (i.e., if state law frustrates the purpose of fed statutes in this area we won’t incorporate it). Why come up with a completely separate and allegedly uniform common law in this area? Convenience for the gov’t?

Front 85

Kimball Foods

Back 85

tells how to decide between three options about the content of FCL that fills the gap state law can't (total incorporation, incorporation within limits, or uniform fed common law rule): default to incorporation within limits (piggy-back on state law unless it frustrates federal purposes). This is what usually happens in lower courts now. But Nelson thinks this may just be a way to hedge on whether the area is federalized at all or not: if you’re unsure, just say it is but incorporate state law! This allows you to avoid bad precedent that seems to say you need to federalize a field that you don’t think should be federalized but still reach the same result as if you hadn’t federalized it, but it’s needlessly complicated, no?

[One potential difference between federalizing but incorporating state law and not federalizing at all is when you talk about arising-under jur.]

Front 86

Southern Pacific v Jensen

Back 86

States can’t exercise authority in a way that harms or interferes with the general maritime law. Congress has all power to change general maritime law, FCL is dominant and is drawn from general maritime law.

Front 87

Liddy v Wells

Back 87

defamation suit on the high seas, American law applies, we look to general American defamation tort jurisprudence, not that of any one state.

Front 88

Crosby

Back 88

MA can’t prevent state agencies from buying any services from businesses with any dealings with Burma; Congress later passed its own version of sanctions against Burma. SC rested its opinion on narrow grounds about statutory (not const’l) PE, but it’s likely that the SC gave some weight to the fact that this would interfere with the fed gov’t’s foreign affairs powers.

Front 89

Garamendi

Back 89

goes farther than Crosby: no fed statute at all, but state law seen as an obstacle to Clinton’s diplomatic relations with Germany is struck down.

Front 90

Sabbatino

Back 90

Cuban gov’t purports to seize the assets of a Cuban sugar company. Do the proceeds the company held in the US go to its (former) US shareholders or back to Cuba? While figuring it out, NY courts appoint Sabbatino as a receiver of the funds, Cuba sues him for conversion. SC ends up deciding that fed courts can’t say (in the absence of a treaty or fed law) whether an act taken within the borders of another country was legal or illegal. 2 steps to get to that conclusion: 1) fed law has to govern whether we attempt to apply Cuban law to determine if what Cuba did was illegal, it’s not up to the states (federalism argument); 2) fed law on the subject exists in written law: the const! It says that unless the political branches say to piss off Cuba, don’t look into whether their acts are legal or illegal (separation of powers argument).

Front 91

Sosa v Alvarez Machain

Back 91

DEA pays some Mexican citizens to kidnap Alvarez Machain and bring him to the US since Mexico won’t extradite him. They did but gov’t couldn’t get a conviction so he sues Sosa, the DEA official who set this up. But where can he get a cause of action? S 1350 grants subject-matter jur (like S 1332) but does not create a cause of action, i.e., it’s purely jurisdictional, SC says (it had been unclear beforehand). Another possible source of a cause of action is Mexican law—Sosa may have committed a tort under the law of Mexico, and American COL rules might well say that Mexican law governs this issue. But S 1350 arguably only contemplates torts committed in violation of the law of nations, not of the law of any particular country.
Writing for a majority of the Court, Souter concludes that when S 1350 was enacted, people understood the common law to supply a right to recover damages for injuries proximately caused by the D’s violation of certain kinds of duties imposed by the general law of nations. But most violations of the law of nations wouldn’t have supported individual claims at common law—but there were a few that did. Paradigmatic examples were suits for injuries caused by piracy, assaults against ambassadors, and violations of rights to safe conduct through a country’s territory. Souter then asks the extent to which this law has survived Erie: is there still a cause of action and what kind of law might it be? His answer was that the existence of a cause of action for torts in violation of the law of nations at least under these facts is a matter of FCL rather than the law of any individual state.
Then for the content of that FCL the Court looks to general jurisprudence, says that a cause of action has to be sufficiently recognized not just today but also at the time S 1350 was enacted in 1789—as widespread as the tort of piracy or assaulting an ambassador. Alvarez’s claim fails that standard, so no cause of action.

Front 92

Dice part deux

Back 92

Dispute was ultimately about whether P had released his rights that he had under FELA; he claims he signed them away under false pretenses. It’s pretty clearly a question of fed law whether such rights are releasable, but to determine if they were released is more procedural, and normally the type of thing that state law would govern (think of trademarks: created by fed law but assigned using state contract law)—here the state law would say doesn’t matter what they said to you, if you signed the paper you released your rights. So why might the FELA be properly understood to federalize the question of looking into whether the rights really were released? S 55 of the FELA says that no instrument that allows RRs to get out of FELA liability is valid, they’re all void; now, this might not apply to bona fide settlements, but it could be the basis for saying that the instrument in Dice’s case was void. If S 55 if the basis for the decision, then Dice doesn’t apply to all fed causes of action unless they have a similar clause.

Front 93

Boyle

Back 93

marine dies in helicopter crash, family sues manufacturer saying escape hatch was faulty. Scalia though says that state law is displaced here and it is federalized—but by what? Scalia doesn’t say. Holds that you can’t hold third-parties liable where:
1) Fed gov’t had approved reasonably specific specs;
2) The product conformed to those specs; and
3) The company didn’t hide any info about dangers from the gov’t
Scalia says this is FCL, but again he doesn’t say what in fed law displaces state law-making power. He does cite the FTCA which in some situations waives the fed gov’t’s sovereign immunity (but not when exercising discretionary judgment, as here)—but no one is suing the fed gov’t! Scalia seems to think that allowing this suit to go forward would thwart the purpose of this part of the FTCA. Scalia also rests part of his argument on const’l PE, saying that gov’t’s ability to contract would be impaired if we let this suit go forward because then contractors will charge more—but this seems pretty indirect, so how much (if at all) should it matter? To try to limit this, Scalia relies a lot on the fact that the military specified the helicopter’s details, they didn’t just order a generic helicopter out of a catalogue—that specificity makes a big difference for Scalia.

Front 94

Cause of action

Back 94

a remedial right enabling a person holding a right to ask a court of competent jurisdiction to issue relief. Basic idea: person with a cause of action, if they can find a court of competent jur and can meet the elements of the cause of action and there are no defenses, then they are eligible for some kind of judicial remedy.
Cause of action is separate from legal duty, though often they are intertwined (tort law both gives me a duty to others and a cause of action to those I harm). But legal duties can exist without a concomitant private cause of action—they can be enforced outside the courts.

Front 95

Borak

Back 95

60s approach to implying causes of action from fed statutes: recognize an implied PCA if it would further the purpose of the statute. This can be cast as statutory interpretation or FCL but bottom line is the same: PCA may be created if courts think it would help further the legislation’s purpose.

Front 96

Cort v Ash

Back 96

First step back from Borak (though not meant to be at the time).


Ash lists four factors for when a PCA should be read into a statute:
1) Was the statute enacted for the especial benefit of people like the P so that it could be said to have created a fed right for the P?
2) Is there any legislative history either way?
3) Would it be consistent with the legislative scheme to create a PCA here?
4) Is this something usually left to the states so that a federally created PCA would seem strange?
Ash only cast #2 as a question of statutory interpretation and so wasn’t a big subst change to Borak; but Cannon, which came later, was a big change: it cast all the Ash factors as questions of statutory interpretation, and even said it was a different approach than Borak (and embraced it). Still, though, they did find an implied PCA there.

Front 97

Touche Ross

Back 97

SC didn’t find an implied PCA in another provision of the same statute that Borak had found one in. Court said they’re not there to improve upon Congress’s legislation.

Front 98

Sandoval

Back 98

Scalia writes for a majority that only PCAs created by Congress count, so they must have at least done so implicitly, not just a situation where the Court can decide that an implied PCA would help the legislation better achieve its objectives.

Front 99

Bivens

Back 99

Inferring causes of action to enforce const'l duties.


Bivens wanted to sue fed officers in their personal capacities under federal law (he didn’t want to sue under a state tort claim because there they had a convenient fed officer immunity defense available) for violating his 4th A rights. So where could he get a fed cause of action? If they had been state officers, S 1983 would have given him a cause of action, but no luck here since they were feds. No fed statute granting him a cause of action. But he’s not out of luck because the SC holds that the SC implies a cause of action for him via the 4th A itself! Basic idea: if there’s a federal right, there should be a federal remedy. [NB: Bivens applies to both fed and state agents]
Bivens’ basis is shaky, Nelson thinks, but it’s not going anywhere, so what is its nature and scope? If it is rooted in the 4th A, does that mean Congress can’t get rid of Bivens actions? Brennan doesn’t answer that question squarely, but he does imply that if Congress created an “equally effective” alternate remedy then that could be enough—Bivens actions are a default rule with the limitation that they can’t be removed unless replaced with “equally effective” substitute. Also, S 1983’s qualified immunity provision has been read into Bivens actions (i.e., if the law wasn’t clear then officer gets immunity).
Would an alternative mechanism for enforcing 4th A rights need to occur in the courts or could it occur in some other way, like a process for applying for private bills asking Congress to grant relief from the treasury?
Harlan’s concurrence says that the ideal would be to allow the P to sue the fed gov’t directly under respondeat superior, but sovereign immunity prevents that… so Bivens actions are the next best thing?

Front 100

Davis v Passman

Back 100

extended Bivens to 5th A Due Process Clause violations. P was a former staffer to a Senator but fired because she was a woman. Beyond expanding Bivens from 4th to 5th A claims, it also expanded Bivens in that the actions Bivens complained of would have been tortious under common law, but those complained of in this case wouldn’t’ve—the SC recognized a PCA that not only wasn’t authorized under any particular statute but also wasn’t recognized under general common law jurisprudence either. Then again, that might make it more necessary for there to be an implied const’l cause of action here since it wouldn’t be protected via any state cause of action. Then again again, maybe that’s what the Founders wanted—it’s more of a defensively assertible right! Davis also did one other important thing: it said that the federal statutes prohibiting sex discrimination did not PE the cause of action recognized in the Davis case itself. [see Farrell outline for good summary of this]

Front 101

Carlson v Green

Back 101

built on Bivens some more. Recognized implied causes of action in 8th A (cruel and unusual punishment) cases against the individual officers when a prison refused to treat a sick prisoner. Court decided that the FTCA which in this case provided for suit against the fed gov’t (but not the officers in their personal capacity) did not displace the Bivens-type cause of action, they exist side by side. Brennan wrote this opinion in very broad terms: Bivens-type actions are the norm! Only exceptions occur when 1) there are special factors for doing so that outweigh assumption of Bivens actions; or 2) if Congress has displaced the Bivens action and provided an “equally effective” substitute.
Carlson case was definitely the high-water mark of the Court’s recognition of Bivens actions—they haven’t recognized a new one since! The framework originally stayed the same and the Court just chose to find “special factors” that militated against recognizing a Bivens-type action, but it’s gradually become more openly hostile to them, with Scalia and Thomas saying they should be confined to their facts.

Front 102

Wilkie v Robinson

Back 102

Souter’s opinion strikes a very different tone than Brennan did in Carlson, says that Bivens actions are the exception, not the norm. Current framework to determine if a new Bivens action should be recognized proceeds in two steps:
1) Whether any alternative existing process amounts to a convincing reason for the judicial branch to refrain from creating any new and free-standing mechanism for enforcing the right.
2) Even if there isn’t an alternative existing process that passes muster under prong #1, it’s still a judgment call about whether to recognize a new Bivens-type action.

Front 103

Cohens v VA

Back 103

when a fed law is injected into a case as a defense to a criminal prosecution, the case at that point now “arises under” for purposes of Art III, doesn’t matter that it wasn’t there at the beginning of the case (i.e., this was a regular state law the Cohens had allegedly violated). Definition: if interpretation of fed law (or the const) materially affects the outcome of the case on its merits, then it can be said to arise under fed law for the purposes of Art III. [NB: procedural question, or question of whether fed law confers jur over a case, do not count as materially affecting the merits—they aren’t enough to make a case arise under fed law within the meaning of (WTMO) Art III.]

Front 104

Osborn v Bank of the US

Back 104

Plaintiff was the national Bank (the one of McCullough v MD fame). It was a creature of federal law (incorporated by Congress) and could sue and be sued in any state court having jur, and in any fed circuit court (which at the time meant fed district court). The Court read that grant of power to sue and be sued to mean that Congress was conferring jur on all fed courts to hear cases in which the Bank was a party. [Background: first national bank (not this one) had only been granted power in its charter to sue and be sued in general, and the Court in Deveaux said that didn’t confer jur for it to sue or be sued in fed courts, so when Congress created the second National Bank (this one) it used this more specific language, so it’s not crazy to think that Congress was trying to avoid another Deveaux.]

So the real question: assuming that part of its charter was a grant of jur to fed courts to hear cases in which the Bank was a party, was that grant of jur const’l? In other words, do all cases involving the National Bank inevitably fall within Art III’s “arising under” category? (We’ll ignore questions of severability for now…) Answer: yes. Why? It’s an original ingredient in all cases involving the National Bank.

Two ways to read this case. One is that the simple possibility that a fed law defense could be raised in a case is enough for it to arise under fed law WTMO Art III—even if it is never in fact raised! That’s how Burger read Osborn in his Verlinden opinion.

But it could just be specific to contracts cases, argues Prof Bellia: if the power to contract is part and parcel of every contract claim, then whether the National Bank had that power is a necessary ingredient of every contracts case in which it is a party. But then what about suits where the National Bank is sued not for contract claims? Apparently later cases have held that federally-chartered corps can be sued in fed court on any claim.

Front 105

Protective Jurisdiction

Back 105

can Congress give fed courts jur to hear all cases involving non-federally chartered organizations? Textile Workers case avoided this question: it said the Taft Hartley Act federalized the field and provided a cause of action, so this wasn’t a state contract cause of action involving two citizens of the same state—it was a fed law contract cause of action involving two citizens of the same state! Tada!

But Frankfurter dissent says to read the THA plainly: as purporting to grant normal jur over fed courts to hear these cases, not as pre-empting the field [which Nelson thinks is plainly correct]. If so, Frankfurter says this is not a valid grant of jur because it doesn’t arise under fed law. This although he assumed that Congress could have provided substantive rules of decision to cover this case, in which case it would have been const’l to grant jur to fed courts to hear the suit. So it seems like Congress is just trying to skip the middle man (of creating substantive rules of decision which could have just incorporated state law, which would be plausible if Congress didn’t see any problem with those laws in the abstract and was just worried about biased state court judges/juries) and confer jur straightaway. Should it matter that they’re skipping a step? Frankfurter definitely says yes, that makes it unconstitutional. But why force Congress to make a shell of a fed law just to confer jur on fed courts? And doesn’t that logic mean that Klaxon cases arise under fed law because that’s a fed rule that just incorporates state law? (Which seems like an absurd conclusion.)

Front 106

Verlinden

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involves the Foreign Sovereignties Immunity Act. Among other things, purports to confer jur over fed district courts to hear cases when a foreign sovereign is not immune. Usually that wouldn’t be a problem because the plaintiff would presumably be an American citizen, and that’s a category in Art III so we’re good to go. But in this case, the P was a Dutch Corporation and they were suing the Nigerian gov’t. The only possible Art III category this could fit into would be arising-under jur. Does it fit there?
Assume the FSIA codifies and modifies the general common law principle of foreign sovereign immunity. Suppose you classify that immunity as a procedural or jurisdictional, akin to rules of whether someone is subject to a court’s personal jurisdiction. Under this (last) assumption, unless the actual claim is that the D violated a (US) fed law or the case otherwise arises under fed law, it doesn’t look like the case fits into the arising-under category just because it is brought under the FSIA’s procedural aegis—federal law that tells you whether you have jur can’t be something that triggers arising-under jur because that question has to be asked about every suit that’s filed, there would be no limits!
But suppose you think of foreign sovereign immunity as a defense on the merits; then Cohens seems to say that this case does indeed arise under fed law because you have to interpret the FSIA to determine if you have a valid defense here. Except what if the D never raises that defense?? If you read Osborne broadly then it’s still OK to grant jur here.

Front 107

Mottley

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most famous gloss on WPC rule in this regard. Breach of contract claim about RR tickets. P anticipated that D would raise a fed defense (Congress had arguably passed a law prohibiting the D from performing) and so wanted to argue that the fed statute didn’t really bar the D from performing. But their actual cause of action did not depend on fed law at all: they just had a contract, and alleged that the D had not performed. Applying the WPC rule, the SC said this case did not trigger S 1331 jur.

Front 108

creation test

Back 108

if fed law creates the cause of action then the claim arises under fed law WTMO S 1331, and if it doesn’t then it doesn’t. (I.e., creation test is both necessary and sufficient.) This is what Holmes says in American Well Works case.

Front 109

Smith v Kansas City Title and Trust Co

Back 109

fed law didn’t create the cause of action (it was created by state law) but it was necessary to establish an element of the P’s case in chief: to show that the bonds really were unauthorized the P had to point to fed law. This wasn’t anticipating a defense, it was establishing an element of his cause of action. The SC said this case triggered S 1331 jur (Holmes dissented because it failed the creation test, his baby).

Front 110

Franchise Tax Board

Back 110

Summary of current doctrine about triggering S 1331 jur: a WPC must establish either:
• Fed law created the cause of action; or
• P’s right to relief necessarily depends on resolution of a substantial question of federal law.
But that second prong doesn’t cover many cases, so that adjective “substantial” is doing a lot of work. The meaning of substantial in this context is technical, as shown by the Merrell Dow case.

Front 111

Merrell Dow

Back 111

P’s were making a state-created products liability claim and one element had to be that the D was negligent; they wanted to show that the D was negligent because they had breached a legal duty that fed law had given them. This again is not anticipating a defense, it’s a valid part of the P’s WPC, but the SC still said this didn’t trigger S 1331 jur because it wasn’t a “substantial” question of fed law.

Why? Majority said that Congress had chosen not to give P’s a private cause of action to enforce this duty of the D’s, which is tantamount to a congressional conclusion that this is not a sufficiently substantial question of fed law. If it would flout congressional intent to imply a private cause of action, as the Court thought it would, then it would flout that intent about as much to let the question trigger S 1331 jur.

Hard to interpret the case, but Nelson’s summary is: when fed law doesn't itself give P's a cause of action when it gives someone a duty, there usually won't be substantiality to trigger S 1331 jur. Conclusion of majority opinion says this.

Remember, Merrell Dow does not overrule Smith (or Franchise Tax Board). Although there were some similarities between them (fed law was a necessary part of an element of the cause of action), the difference is that in MD Congress had (acc to the SC) said that this wasn’t a substantial question by not creating a cause of action. But wait, Congress hadn’t created a cause of action for Smith to enforce his rights either!? But in MD, Congress had an obvious opportunity to do so and chose not to, whereas in Smith Congress was silent on the matter.

That argument has two key moving parts:
1) MD court takes Congress to have said that there should be no fed law cause of action for violation of the duty they create.
2) They treat that statement to be tantamount to saying that then violating that duty is not subst enough to trigger jur under S 1331.
MD was ambiguous about when to infer such statements from Congress. It might be important that in MD there was a parallel state cause of action into which the breach of the federally created duty could be slotted—that makes it less substantial of a fed question.

Front 112

Grable

Back 112

More like Smith than MD, hence the outcome. Question was whether the IRS gave Grable sufficient notice. This doesn’t fit the MD template because it was not a party to the case that allegedly violated a duty, but a third party—the IRS—so Congress hadn’t had an obvious opportunity to decide whether to give a cause of action down the road like this, so no congressional input on whether the fed law question is substantial—but that just means there’s another step: does Court itself think this is a substantial (WTMO Franchise Tax Bd framework) question of fed law? A number of factors to determine this.
• Whether recognizing S 1331 jur would open the floodgates to new litigation
• How central is the fed question to the case?
• Is there an interest to hear this in fed court?
• Empire Healthcare case also says that it’s helpful to ask whether it’s a “nearly pure” question of law as opposed to a law-as-applied-to-fact kind of question.
SC concludes that Grable question is substantial WTMO the Franchise framework.
Thomas doesn’t like this totality of the circumstances approach. But Empire Healthcare confirms that it only applies to a slim number of cases so maybe it won’t invite too much confusion?

Front 113

Skelley

Back 113

says that Declaratory Judgment (DJ) Act didn’t hugely expand fed jur; Mottleys still couldn’t get into fed court if they brought their suit post-1934. Just because a DJ suit contains a question of fed law doesn’t mean there’s S 1331 jur—you have to think about how it would traditionally have been brought. But do you only consider cases that the person bringing the DJ suit could have brought (i.e., where she was the traditional P) or also hypothetical cases where the party not bringing the DJ suit was the P? Skelly was ambiguous about this. Franchise Tax Board dictum seemed to say to take the broader view, and that’s what courts do. (This often arises in patent disputes.)
But what if DJ defendant would have two possible traditional cases against the DJ plaintiff (who has none of his own)? E.g., Nelson licenses his patent to me, I keep using it after the license expires. If I sue for DJ that his patent is invalid, we need to look at his possible cause(s) of action against me to see if the DJ suit triggers S 1331 jur—but which of his possible claims to consider, the patent infringement one (does arise under fed law) or the breach of contract one (doesn’t arise under fed law)? 11th Circuit has said that as long as it could arise under fed law, the DJ suit can trigger S 1331 jur, but it’s not clear which side should be right since Skelly is ambiguous on this point (indeed, it’s ambiguous about whether to consider D causes of action at all!).

Front 114

Avco

Back 114

says that when federal law completely pre-empts an area, then even if a state law claim is all that is asserted the D can still remove it to fed court. The Taft Hartley Act is such a law.
Don’t get confused, Avco is very narrow. Usually a D argues that there is pre-emption as a defense against a state law claim, and if the D is right then he will win on the merits, but the fed defense does not provide any basis for removal to fed court. Avco was special because the law at issue completely PE’d the whole relevant field, and not only did it PE the state law cause of action, it replaced it with a fed law cause of action—this is why it could be removed to fed court, a very rare scenario.

Front 115

Beneficial National Bank

Back 115

best explanation of complete PE. Can’t remove to fed court just based on a fed defense (then we’re in Mottley-land); can only remove when fed law 1) displaces all state law in the area, aka occupies the whole field, and 2) supplies a replacement fed cause of action. Then, even though the P might purport to be asserting a state law cause of action, they’re really asserting a fed law cause of action and thus it is removable to fed court. Beneficial asks if the fed law “provides the exclusive cause of action” for the claims asserted.

Scalia dissents, says that the P’s really did assert a state law claim; if that claim really was pre-empted by a fed law, then we should just dismiss the case for failure to state a claim. [Is this because he doesn’t like recognizing implied causes of action?]

Nelson disagrees with both majority and dissent, thinks they both skip an important step: we need to ask how to interpret pleadings in state court, and that depends at least in part on state law. State courts might interpret your pleadings to be asserting both state and fed law causes of action, even if you’re unclear about the allocation, or some combo of the two—that should probably play into whether they are really asserting the fed law cause of action and thus eligible for removal at all. Instead of doing this, complete PE doctrine seems to assume that even if only a state law claim has been asserted, if there is complete PE and a fed law cause of action is substituted we’ll just swap that one in, and this is a principle of fed law, nothing that state courts can do about it. Scalia disagrees with the content of the rule, but seems to just want to substitute a different (but still federal) rule that says just dismiss the claim.

Front 116

Gibbs test

Back 116

tells you what counts as part of the same case/controversy. If two claims share a “common nucleus of operative fact” (CNOF) then they are part of the same case/controversy WTMO Art III. So if a fed and state law claim both arise from the same CNOF then the whole case arises under fed law WTMO Art III. And even if the fed claim is thrown out, jur remains over the state law claim!

[Terminology note: Gibbs involved what was called “pendent claim jur” – two claims against the same D that arose from the same CNOF; you’ll also hear about “pendent party jur” – even if the state law claim is against a separate D, as long as it also arises from the same CNOF as the fed law claim against the first D then it’s all one case/controversy WTMO Art III. S 1367 calls all of this “supplemental jur.”]

Front 117

Finley

Back 117

confined Gibbs to pendent claim jur—said that as a matter of statutory interp, the then-current grants of jur did not reach pendent party cases. S 1367 was passed to overrule Finley (and do other things too).

Front 118

S 1367

Back 118

Supplemental jurisdiction. Overruled Finley, codified Kroger

Front 119

Kroger

Back 119

if you sue in diversity, and the D impleads another D (as a third-party D on an indemnification claim) who is a citizen of the same state as you, you can’t assert a claim against them because it would destroy div jur.

Codified by S 1367

Front 120

Exxon Mobil v Allapattah

Back 120

Clark v Gray had said that all the P’s have to meet the amount in controversy requirement against each D to sue together in diversity, and that was extended to class actions by Zahn later: no jur over any claim by a member of the P class who doesn’t meet the amount in controversy requirement. But now that S 1367 has been enacted, might that result change? Yes!

o Why? Straightforward reading of the text: P_1 meets the amount in controversy requirement, so his claim against the D is an anchor claim based on div jur. Since P_2’s claim derives from a CNOF, (a) grants jur over it. Does (b) take it away? Even though prongs 1 and 2 are met (basis of anchor claim is div jur, recognizing supp jur here would destroy that jur) it doesn’t fit any of the prohibited alignments listed in prong 3! (The P’s are not making a claim against anyone made party under the rules in sub-prong 1, and the P’s weren’t made party under either FRCP 19 or 24, they were made party under FRCP 20 or FRCP 23 (class actions).)

o So Clark and Zahn are overruled—booyah!

Front 121

Weird results stemming from Exxon Mobil v Allapattah

Back 121

o Strange result #1: if you are suing multiple D’s, then (b) does take away the supp jur because P’s are asserting a claim against someone made a party under Rule 20! That doesn’t really make any sense from a policy perspective to treat this differently than the actual Exxon Mobil case.

o Strange result #2: if the case starts as just P_1 validly suing P_2 in div jur, and then P_2 wants to intervene under Rule 24 and assert a claim that doesn’t meet the amount in controversy requirement, S 1367(b) bars it—why? If they had just started as P’s together S 1367 would have allowed it (see Exxon Mobil case itself)! No good reason to treat them differently, it seems…

o Strange result #3: taking the Exxon Mobil logic at face value, complete div requirement might be done away with. If P_1’s claim against D is a valid div jur claim, then it can act as an anchor claim and P_2’s claim against D (even if he and D are citizens of the same state) gets jur under (a) and (b) doesn’t take it away for the same reason that it wasn’t taken away in Exxon Mobil—right?

 Pfander argues that at least this third anomalous result can be avoided with some “fancy footwork.” He claims that P_1’s claim against D can’t act as a valid anchor claim because in a multi-party div jur case you have to look at the citizenship of all parties before determining if any of the claims get div jur—either they all do or none do, can’t use just one as an anchor claim as we were assuming you could. But how to square this with Exxon Mobil itself? Ginsburg’s dissent in Exxon Mobil thinks that you can’t, but maybe Pfander could reconcile his theory with that case’s holding. You just have to argue that the amount in controversy requirement doesn’t contaminate other claims from the get-go the way that lack of complete diversity does. Majority in Exxon Mobil seems to hint strongly that it wouldn’t let this third anomaly happen, and Nelson agrees that they’d find some way to differentiate complete diversity requirement from amount-in-controversy requirement

Front 122

S 1291

Back 122

appeals as of right from final decisions of fed district courts

Front 123

S 1292(a)

Back 123

appeals as of right from a few specified types of non-final decisions, like orders entering or refusing to enter preliminary injunctions during the pendency of the case

Front 124

S 1292(b)

Back 124

discretionary appeals of other interlocutory decisions; the dist court exercises its discretion to certify the issue for immediate appeal, and the CC exercises its discretion in deciding whether or not to take the appeal.

Front 125

“final decision” WTMO S 1291

Back 125

Paradigmatic example is a final judgment (or some other order that disposes of the case). An example could be if D moves to dismiss a suit for lack of personal jur and court grants the motion, that is a final decision WTMO S 1291 and thus appealable as of right to the CC; however, if the court denies the motion, that’s not something the D can appeal right away—has to wait until a final judgment to get review of that in the CC (all decisions made during the trial “merge” with the final judgment and can be considered on appeal of the final judgment).

But collateral orders are too; see Cohen v Beneficial Loan Corp

Front 126

Cohen v Beneficial Loan Corp

Back 126

narrow exception to usual definition of “final decision”; this case expanded that term to include a few kinds of orders that, true, don’t dispose of the case but are too important to wait for. These are called collateral orders and, while they look like interlocutory orders, WTMO S 1291 they are “final decisions” and can be appealed (immediately) as of right. Three key features in order to qualify as a collateral order:

• Order must conclusively answer the issue it addresses. (Never mind the federal rule of civil procedure behind the curtain, 54(b), which allows these (along with all other court orders) to be re-opened by the dist court before a final judgment is handed down—we’re looking at practical conclusivity, not technical, and dist court judges are more likely to revisit some orders than others.)
• Must resolve an important issue that is completely separate from the merits of the action.
• Must be effectively unreviewable on appeal from a final judgment.

Originally created as something akin to “safety valves,” but now that S 1292 allows for some kinds of interlocutory order review they seem less necessary. And in practice the application of these conditions has gotten a bit loose. See Mitchell v Forsythe, which held that denying a D’s defense of qualified immunity is a collateral order that is a final decision WTMO S 1291. The Court’s main argument was that prong 3 was met because the immunity is not just immunity from damages but also immunity from having to go through a whole suit; whatever, but Nelson thinks meeting prong 2 is even harder—how is this completely separate from the merits?? Hard to defend this as a statutory interpretation matter, more likely that the Court just made a policy decision.

Front 127

Mohawk

Back 127

suggests the current Court is not very open to finding new collateral orders (they argue that new rule-making authority they’re given reduces the need to find new ones—Nelson isn’t sure that’s a great argument, but since he’s not a fan of collateral orders in general he agrees with the outcome). Bottom line: Court probably won’t overrule previous decisions recognizing collateral orders, but probably won’t recognize many (any?) new ones anytime soon.

Front 128

Anti-Injunction Act (S 2283)

Back 128

one of the reasons there’s so little coordination between state and fed court systems: fed courts’ power to issue injunctions to tell state courts not to continue with proceedings is severely limited by the AIA.

It has three express exceptions (express authorization, necessary in aid of fed court's jur, and to effectuate or protect fed court's judgment) and one implied one (Leiter). In addition, you have to meet traditional equitable principles as a pre-requisite to getting any injunction, and that applies for injunctions under the AIA too.

General rule is that you can’t issue injunctions telling a state court to drop a case. Also, can’t issue an injunction against the parties (either not to continue the case, or not to enforce a state judgment that has been issued)—no end-runs!

Front 129

Mitchum v Foster

Back 129

S 1983 doesn’t explicitly authorize injunctions against state courts, but it still qualifies as “expressly authorizing” an injunction WTMO the AIA. It only works if the fed right created by the statute would be frustrated by not allowing injunctions against state court proceedings. TEST: if the statute clearly creates a right and can only be given its intended scope by allowing a stay on state court proceedings.

But don’t take this holding too far: broad statutes don’t usually qualify for this purpose, and it might even be unique to S 1983 which was specifically about affecting the federalism dynamic. Vendo case seems to confirm this.

Front 130

Toucey

Back 130

Overruled by the AIA (S 2283).

had said that the precursor to the AIA shouldn’t be understood to include an exception for when a guy sues in state court, D removes to fed court and wins, and the guy assigns his same right to a friend who isn’t diverse from D so that the friend can sue and not have it removed; the Toucey Court said (as a matter of statutory interpretation) that fed courts can’t enjoin that second state proceeding, but the AIA changes that result now: since it would be protecting the fed court’s judgment it would be OK to issue an injunction there.

Front 131

Parsons Steel

Back 131

says that if the D in the Toucey situation, after the AIA is passed, for some reason doesn’t ask a fed court to enjoin the second state proceeding, but instead argues in state court that the fed decision is res judicata but loses on that and loses on the merits, then the D can’t then ask a fed court to enjoin the P from enforcing the state judgment—the D’s only avenue of relief is to appeal through the state court system and then to the SC on the merits.

Front 132

Colorado Rivers

Back 132

Fed courts have a “virtually unflagging duty” to hear cases they have jur over.

Front 133

Pullman

Back 133

Requirements for Pullman abstention:

• Must be a substantial federal const’l question;
• There must also be a state law question whose answer is unclear and whose disposition would alter the fed question significantly (e.g., not have to decide it at all); and
• There is an available mechanism for P to get the state courts to resolve the question of state law

Now that many states have mechanisms for certifying state law questions to their SC, that should be preferred over Pullman abstention.

Weird wrinkle: if P’s only assert the state law claim (not the fed const’l one) then Pullman abstention does not apply—the fed court has to hear the claim. Pullman only applies when you’re using it to avoid a thorny fed const’l question.

Pullman’s ultimate policy rationale is about avoiding tricky const’l questions, the federalism aspect is only subsidiary.

Front 134

Windsor + England

Back 134

if you sue local officials in fed court under both state law and fed const’l claims, the fed dist court will likely stay the case, giving you a strong incentive to go sue in state court. Suppose you do, though—you don’t want to assert the fed claim because then there may well be issue-preclusive effect if you lose on it; but at the same time, state courts might require you to present all your possible claims or else you will be precluded from asserting it later, and that claim-preclusion might hold up in fed court too!

Solution: what you have to do is assert the fed law claim in state court but make it clear that you’re doing so only because you have to, and then there’s an exception to state law claim-preclusion when you come back to fed court: you can assert your fed law claim without it being barred by having asserted it in state court.

But that doesn’t solve the issue-preclusion problem: some facts you litigated in state court that are relevant to both claims might be barred from being litigated again in fed court, and that sucks for you. But going the other way and extending England to issue-preclusion would screw over the D, giving you two bites at the apple to get a favorable ruling on the facts.

P.S. Where does the SC get authority to make an exception to the Full Faith and Credit Act, which says that all state law judgments will have the same preclusive effect in fed courts that they have in the issuing state’s courts? Unclear. Yes, it’s necessary to make Pullman abstention (kind of) work, but the authority for Pullman itself is unclear too…

Front 135

Burford

Back 135

Burford abstention does not apply widely, it’s only about protecting complex state admin regimes from undue and harmful fed influence, and that doesn’t happen much. But the point is that, like in Pullman, it’s about equitable discretion.

Front 136

Younger

Back 136

General rule: no fed court-issued injunctions to stay state criminal proceedings. It only applies to state cases that are pending; ones that haven’t yet been commenced aren’t covered by this doctrine.

The exception is if there is “great and immediate, irreparable loss” from the trial itself. Hard to meet this condition. Chilling effect is not enough; neither is the cost and time of going through the trial. The things that could qualify are 1) if the D is being prosecuted in bad faith; or 2) prosecutors are pursuing the case for harassment purposes; or maybe 3) if the law is just astoundingly unconstitutional.

Is this equitable restraint or abstention? More about the former than the latter, really; it’s about getting relief on the merits vs not hearing the case at all (abstention). This means that even if Congress purported to authorize injunctions here, courts still couldn’t issue them. This happens when an AIA exception is met—say you want a fed court to issue an injunction under S 1983 against a pending state court criminal proceeding: AIA doesn’t stand in the way (thanks, Mitchum v Foster!) but Younger does, it is more fundamental than the AIA.

Reasons for Younger:
• Requirements for equitable relief are not met – there is an adequate remedy at law.
• Federalism concerns – don’t want to interfere with state criminal proceedings

Front 137

Steffel v Thompson

Back 137

limits around the Younger doctrine. P can get a declaratory judgment before any state criminal proceedings commence saying that what he wants to do isn’t illegal. Important 1) that there’s no state criminal proceeding pending; and perhaps 2) the potential D (here the P) hasn’t done the allegedly illegal thing yet—some lower courts have said that Younger abstention should apply when the person bringing a DJ suit has committed a(n alleged) crime and is just worried about getting prosecuted in the future.

Front 138

Rooker/Feldman abstention

Back 138

Ginsburg summarizes when Rooker/Feldman applies:
1) P’s complaining of injuries caused by the state court judgment itself; and
2) They’re asking the fed court to reverse the state court judgment.

[Nelson thinks the R/F doctrine can also apply to things other than final judgments by a state court, such as granting a preliminary injunction.]

R/F doctrine is very limited. Usually preclusion is the better way to dispose of similar situations. Only apply R/F if the case really fits the exact mold.

As a side note, the R/F doctrine might be a more normal explanation of the idea that the AIA prevents fed courts from issuing injunctions against enforcement of state court judgments; Black in Atlantic Coast Line cast that rule in terms of not letting people get around the AIA cleverly but maybe the result flows more naturally from the R/F doctrine because the AIA on its face doesn’t say anything about that issue, it just says no writs to bar state court proceedings themselves. Same result regardless, though.

Front 139

Suspension Clause

Back 139

Congress can’t suspend the writ of Habeas Corpus except if there’s an invasion or rebellion or the public safety requires it. But what does it mean to suspend it? Would it be a suspension for Congress not to give fed courts the jur to hear petitions for HC? As an original matter, it seems like it might not be since state courts would still be open to them (presumably), so maybe the Suspension Clause is more about Congress not being able to strip states of their jur in that regard unless they provide another route, such as the fed courts. -- But see Tarble's case.

Most popular other reading of the Suspension Clause is that it does require fed courts to be open to hearing habeas petitions. Boumediene endorses this view: habeas relief (or an adequate substitute) has to be available in fed courts (at least for fed prisoners) as a general rule.

Front 140

Ex parte Bollman

Back 140

even under second reading of the Suspension Clause (that fed courts have to be open for habeas petitions), the const does not itself confer jur on the fed courts to hear habeas petitions, Congress still needs to do that.

Front 141

Hamdi

Back 141

fractured opinion, but things that there are 5 votes for: if he’s an EC then we can hold him until the end of hostilities, even if he’s a US citizen (which he was) and it’s on US soil (which it was), so long as Congress has authorized the detention. The AUMF did authorize this detention. But the military doesn’t get total deference on the question of whether he really is an EC—O’Connor applies the Mathews v Eldridge balancing test and says Hamdi didn’t get enough process: he needs notice of the factual basis for his detention and opportunity to rebut those claims before a neutral arbiter (though hearsay can be admissible and gov’t can get a presumption of correctness).

Front 142

Rasul v Bush

Back 142

does the fed court even have jur to entertain the petition for HC? This is hard for people held outside the US especially.

the fed dist court in DC had jur to entertain petitions for HC from GB detainees; Scalia dissented, arguing that the statutory grants of jur here only conferred jur on the fed dist court over the place of detention, but no fed dist court is over GB. Majority said though that on statutory interpretation grounds it’s OK because this is de facto American soil, making it analogous to other territories.

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Boumediene

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the combination of CSRTs and DC Cir review was not a valid substitute for habeas for alien ECs held at GB. Two major “dollops” to get to that holding:

• First dollop: the jurisdictional reach of the writ of HC. Majority says that Congress can’t suspend the writ for these guys any more than it can for people on US soil. Eisentrager (which said ECs held on a military base in Germany during WWII didn’t get habeas) was different because that was in foreign territory; GB is de facto US soil.

• Second dollop: this isn’t an adequate substitute, so it qualifies as suspending the writ of HC. Kennedy says the scope of review required depends in part on the rigor of the original proceedings. Since the CSRT proceedings aren’t very rigorous—not really adversarial, hard to get evidence into the record, etc.—that means the review needs to be pretty good, but the DC Cir’s review wasn’t good enough; specifically, the detainees need to have some procedure to supplement the evidence adduced at the CSRT stage, but the DTA doesn’t allow the DC Cir to do anything like that.

So this is an unconst’l suspension of the writ—where do the courts get jur from then to hear Boumediene’s case? Maybe the fed const, but that would be very unusual. Nelson would much prefer a reading that the fed courts retained their jur they had before because the statute purporting to remove it was unconstitutional.

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Waley v Johnson

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1942 SC says you don’t have to try to fit your habeas claims into the jurisdictional box anymore, you can get relief if it’s the only way to preserve a federal right. Congress ratified this expansion of habeas relief in 1948 when it passed S 2241.

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Brown v Allen

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key case in which the SC expanded its definition of what it means to be held in custody in violation of fed law. Fed courts can hear arguments about 1) racist composition of grand and petit juries in violation of the 14th A; and also 2) that an involuntary confession had been used against him at trial. These were clearly not jurisdictional claims, but the SC said they could be the basis for habeas relief from the fed courts.

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Fay v Noia

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Brennan for a majority says that for centuries the purpose of the writ of HC was to provide relief for whatever society thinks is intolerable restraint, disagreeing severely with Bator, and claiming that even at the Founding there was lots of precedent for this proposition. Didn’t answer whether Susp Clause requires this kind of relief (as opposed to only the kind Bator thinks was available) but current statutes do. Any judgment tainted by const’l error constitutes a restraint in violation of the const and so habeas is appropriate. [Brennan dissented along these grounds in Stone v Powell]

Front 147

Herrera

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general rule is that claims of actual innocence based on newly discovered evidence are not enough, without a claim of taint of const’l error, to support habeas relief on their own. [Possible exception to that rule for capital cases.]

Front 148

S 2254

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for state prisoners to get habeas relief - specifically says you can only get relief if you're held in violation of the laws, treaties, or const of the US.

Front 149

S 2241

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2241(a) grants broad discretion to grant writs of habeas, but (c) cuts back on that a bit—you have to fit into a category listed in (c) to be eligible. (c)(1) covers anyone held by the fed gov’t; anyone held by a state but whose detention violates fed law is covered by (c)(3).

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Stone v Powell

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cut back on Fay v Noia a bit, said that 4th A violations don’t count for that purpose. In other words, if you were convicted with evidence that was seized in violation of your 4th A rights, that isn’t enough to support habeas relief. [Brennan dissented, said there’s no authority for SC to use discretion here—any const’l violation is enough! Majority responds that exclusionary rule isn’t a const’l rule.]

Front 151

Teague

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General rule is that state prisoners aren’t eligible for habeas relief under S 2254 based on new rules of const’l law handed down after the prisoner’s conviction became final. The term “new rules of const’l law” means “newly identified” ones. Precedent that matters is the precedent at the time D’s conviction becomes final. A habeas petition seeking relief on the strength of a const’l rule that was announced after a D’s conviction became final would be “Teague-barred.” 2 exceptions:

1) If the new rule is substantive, not procedural, it won’t bar a habeas petition. Examples include if the SC decides that the conduct for which the D was convicted was beyond the state’s power to criminalize, or if they decide that the sentence imposed on the D was unconst’l.

2) Procedural exception – very, very, very narrow. If failure to follow the new procedural rule would significantly diminish the possibility that the outcome was accurate, then it can be applied in a habeas petition. But this covers very few rules—in fact, to date the SC has never found one that fits this exception!

[Technically, btw, Teague is only about state prisoners and S 2254, but most courts assume it applies just as well to fed prisoners and S 2255.]

The Teague rule is unchanged for federal prisoners who have not filed a petition for habeas yet, but for state prisoners and for fed prisoners on their second (or later) habeas petition, AEDPA applies (in addition to Teague).

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New rules of const'l law

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• Respecting cases pending on direct review, new rules of crim pro are automatically retroactive.
• But for habeas cases, it’s the exact opposite: new const’l rules decided after a D’s case are not applied in habeas cases. That’s the upshot of Teague, and Congress later codified (and extended) that rule in 1996 with AEDPA.

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S 2254(d)

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Part of AEDPA.

In order for a prisoner to get HR on the basis of a claim that the state adjudicated on the merits, the state adjudication had to be
• (d)(1) contrary to or an unreasonable application of clearly established fed law as determined by the fed SC; or
• (d)(2) was an unreasonable determination of facts.

This means that if a state court rules against a D on the merits of a constitutional claim, then as long as at the time the conviction becomes final there is no contrary binding fed law then there can’t be habeas relief on the claim—even if the SC later accepts the D’s argument in another case! At the time the state courts adjudicated his claim, their decision was not contrary to well-settled fed law.

• S 2254(d)(1) overlaps with Teague in some respects but is more restrictive. It’s about application of new rules of const’l law, too, but it’s stricter in that:
o A “new” rule under Teague sometimes meant that the relevant Cir Court hadn’t adopted it; but new under AEDPA means the SC hasn’t adopted it—harder to get!
o Timing under AEDPA is when the state court adjudicates the claim, not when conviction becomes final (as under Teague), so smaller time-window to get a new rule announced. In other words, under Teague if you were convicted at the trial, but by the time you got to the state SC the fed SC had issued a new procedural rule, you could have had it applied to your case; AEDPA wouldn’t let you apply it because it wasn’t announced by the time the state trial court adjudicated your claim.
o No exceptions listed to S 2254(d)(1), so Teague’s exceptions may not even apply.

Front 154

Ex parte Royall

Back 154

established the rule that state prisoners seeking fed habeas relief need to exhaust all state remedies. This was codified in 1948 in S 2254(c).

Front 155

Wainwright v Sykes

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If an otherwise valid claim has been barred by procedural default in state court, you can’t get fed HR unless you can show both 1) cause and 2) prejudice. Later cases clarify that valid causes in this regard are relatively few.

• Novelty can count as cause, but it will probably raise problems under Teague (!) so it’s not very helpful.
• Objective factors external to the defense: if the prosecution interfered with the defense, that can be cause.
o But Murray v Carrier says that factors internal to defense counsel’s efforts won’t count as cause unless they’re so bad that they fail to provide effective assistance of counsel—but that is itself a const’l defect and so will support HR on its own, so you should assert it there rather than as subsidiary, i.e., as a cause for overcoming a procedural default of other const’l claims. And using it as cause for this purpose is intertwined with use of const’l ineffective assistance of counsel (CIAC) as a free-standing claim for post-conviction relief, in the sense that a claim of CIAC won’t qualify as cause to excuse a proc default of another claim unless the prisoner has exhausted his available state remedies for getting relief based on the free-standing CIAC claim—and that free-standing claim itself can be procedurally defaulted!!! In other words, if a state has its own habeas proceedings available and you don’t pursue this CIAC claim there within the time provided by state law, then you’ve defaulted it; and according to Edwards v Carpenter, a procedurally defaulted CIAC claim can serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can meet the cause and prejudice standard with respect to the IAC claim itself.

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S 2254(c)

Back 156

codifies the state remedy exhaustion requirement, includes state habeas claims too. If you can get into state habeas courts, you have to go through all of them before coming to fed habeas court. But remember, if you procedurally default on a claim there you are barred from asserting it later in a fed habeas petition (unless you can show cause + prejudice)—and that’s especially likely because at the stage of state habeas relief you don’t have a const’l right to assistance of counsel at all, so you’re often on your own.

Example: if you have three const’l claims, and you present two in state habeas proceedings (and lose—surprise, surprise) and the third is now procedurally defaulted in state habeas proceedings, you can’t present the third one in fed habeas proceedings either unless you can show cause+prejudice. And here, IAC won’t be good enough because you had no right to counsel at the state habeas stage, so even if you had counsel there and they effed it up badly you can’t invoke any right to effective assistance of counsel. (See Coleman v Thompson)

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“actual innocence”

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Usually, to excuse a procedurally defaulted claim in a later fed habeas petition, you have to show cause+prejudice. But as an alternative to showing both of those, a plausible showing of “actual innocence” can do the same work. NB: this isn’t a free-standing claim for habeas relief based on actual innocence, it just lets you use a showing of AI to excuse a claim you procedurally defaulted in state courts, just like you had shown cause+prejudice. (Murray v Carrier)
This use of a showing of AI need not, then, be quite as strict as it would be to support a free-standing habeas claim (not that it could anyways, except perhaps in the death penalty context—see Herrera). State prisoner bears burden of demonstrating that, more likely than not, in light of new evidence no reasonable juror would convict him beyond a reasonable doubt. That’s a high burden, but not quite as high as what Herrera was contemplating.

Front 158

Rose v Lundy

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If a prisoner files a habeas petition that has mixed claims, some exhausted, some not, what to do? Court has no jur to hear unexhausted claims, but what about the others? Majority says can’t hear them either, have to dismiss the whole complaint. That leaves the petitioner with two options:
1) Go back to state court, exhaust all claims there, and return to fed court with a new petition presenting all the claims; or
2) Simply submit a modified petition right away that only presents the exhausted claims. Suppose this one loses, and then he comes back later and files a petition with the previously unexhausted (but now exhausted) claims.
Either way, this second fed habeas petition is in trouble: The fed dist court might legitimately dismiss it as an abuse of the writ!

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Successive claim

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a claim already presented in a previous petition

Front 160

Abusive claim

Back 160

a claim not presented in a previous petition

Front 161

Second or successive petition

Back 161

a fed habeas petition that isn’t your first; this will likely then include either successive claims, abusive claims, or both (only way not to is if you're asserting a claim that you didn't in a previous petition but which wasn't available then, ergo it's not abusive).

Front 162

S 2244(b)(1)

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flatly forbids relief based on successive claims. No exceptions recognized in the statute. Successive claims in a second or successive petition shall be dismissed. In other words, this means that habeas can be a mechanism to re-litigate claims presented in state court, but most definitely not a mechanism to re-litigate claims already presented in fed court.

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S 2244(b)(2)

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deals with abusive claims, ones that weren’t presented in a previous habeas petition. These should usually be dismissed too if they were available at the time of the earlier petition.

Only exceptions are:
• A) New const’l rules made retroactive on collateral review by the SC; or
• B) If you have both
o i) New evidence that couldn’t have been discovered by due diligence before; and
o ii) It’s really clear that no juror would have convicted you if this evidence had gotten in.

(b)(2)(B) sounds really hard (and it is), but (A) ain’t much better. Remember, only if Teague says to will the SC make a new const’l rule retroactive on collateral review, and what’s more, Tyler v Cain says that you can’t just argue that your new rule fits a Teague exception—the SC has to have actually held that the rule is retroactive on collateral review, which usually only happens in a habeas case (and new rules of crim pro are usually announced not in habeas cases but on direct appeal, so you usually have to wait for two cases to take advantage of this, and you have to worry about the time limit as being from the original date that the rule was announced, not the date it was announced to be retroactive on collateral review--aka good luck)

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S 2255

Back 164

S 2255 though requires fed prisoners to seek habeas from the dist court that sentenced them, not the one with jur over their prison—that makes sense because there aren’t many fed prisons and the dist courts there would be overwhelmed with habeas petitions from them. S 2255(e) spells out the extent to which S 2255 replaces traditional habeas petitions under S 2241—basically anyone who can apply for relief under S 2255 can’t get a writ of habeas under S 2241. This means anyone who is being held pursuant to a sentence imposed by a court created by Congress has to apply under S 2255, but people held under fed authority in some other way (i.e., GB detainees, people civilly committed, etc.) can apply for regular writs of habeas corpus under S 2241.

Front 165

Chisholm v GA (1793)

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the Court’s first major interpretation of the Const. 4 of the 5 Justices who participated said the anti-federalists had been right all along: Chisholm could sue GA in the SC’s original jur and if GA didn’t show up the SC could enter a default judgment against it—SSI gone!

Front 166

Text of the Eleventh Amendment

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• Language only talks about suits in law and equity—not admiralty, for example.
• Only covers suits bought by individuals, not by other states or fed gov’t or Indian tribes.
• Only covers suits brought by certain individuals: prohibits suits brought by citizens of other states or of foreign nations, but doesn’t prohibit, for example, suits by a citizen of a state against his own state.

Front 167

“diversity theory”

Back 167

the 11th A only bars some suits against states by citizens of a different state. Basic idea is that Art III S 2 shall extend to a bunch of different categories of cases/controversies. Advocates of the diversity theory read the 11th A to clarify or modify two of those categories (the 6th and 9th) but has no effect on the other categories. These people think that the 11th A leaves those categories intact for suits in which the state is the P, but effectively eliminates them for suits in law or equity if the state is the D.

To cast the diversity theory in the best light (though Nelson thinks it takes some liberties with the text), compare it to the SC’s grant of orig jur: it shall have orig jur over cases in which a state is a party—but that’s understood to mean only cases where that is the only basis for jur, aka when the JP reaches it only because the case fits into category (5, 6, or 9); in other words, if a state sues its own citizen over a fed question, that isn’t within the SC’s orig jur.

So why not take such a category-based approach towards the 11th A? That’s what diversity theorists do, they think the 11th A is only talking about categories 6 and 9.

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literal reading of the Eleventh Amendment

Back 168

This isn’t limited to the categories where states are a party, but applies equally to all the categories listed in Art III whenever a state happens to be a party. If someone brings a fed question suit against a state, the literalists would say that the 11th A bars that suit from fed court if the P happens to be a citizen of another state or another country.

Front 169

Hans v LA

Back 169

there’s no way to read the 11th A to cover suits against a state by its own citizen—the language clearly doesn’t talk about that. So what do we do then? States still can’t be haled into court then. This case argues that the 11th A didn’t just overrule the outcome in Chisholm (though it did that too), but more importantly that it codified the dissent in Chisholm, which had argued that SSI had not been abrogated by the new Constitution at all. Thus “11th A immunity” (which the Court had used for a long time to describe cases like Hale, but was criticized for extending the 11th A to cases its text clearly didn’t cover) is a misnomer when used broadly. SSI derives not from the 11th A itself but from the states simply retaining the sovereign immunity they enjoyed under the Articles of Confederation—the Const didn’t change anything in that regard. (  This is how the modern SC talks about the issue, suggesting that the 11th A is less important for what it says than for what it represents: a rejection of the whole reasoning of Chisholm.)

Front 170

Madison/Marshall view of SSI at VA convention

Back 170

how could they square their argument that SSI wouldn’t be abrogated by the Const with Art III’s language about how the JP “shall extend” to cases in which a state is a party? Nelson thinks the key is the “case or controversy” part of Art III: maybe SSI prevented such an action from becoming a case or controversy at all. There are 2 steps to this argument:

1) (about the meaning of the Const) To have a case/controversy you need to name an adverse party, and the party named has to be able to be brought into court. This creates a link between subject matter jur and personal jur; we today tend to think the Art III categories are all about SMJ but this argument says there’s an element of PJ in them all too. Thus if I name a party that can’t be brought before the court, we don’t have a case/controversy at all.
2) (not about the Const) The rules governing the issuance and service of process probably aren’t hard-wired into the Const but are just default rules of common law, unless regulated by Congress in some way (which they could do). At the time of the Founding, the common law said that sovereigns can’t be subject to compulsory process at the behest of individuals. The const didn’t address this issue and so didn’t change them (or freeze them in place, like with the 7th A).

These two steps combined get Madison/Marshall’s conclusion: background rules prevent states from being haled into court by individuals, so individuals can’t form cases/controversies against them.

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Ex parte Young

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[skipping all the historical arguments...]

Summary of the modern understanding of ex parte Young:
1) Cause of action: you have a fed cause of action any time a state officer threatens you with unconst’l actions that will harm a const’lly protected interest of yours.
2) SSI: you can sue an individual state officer for injunctive relief and it doesn’t matter whether it’s a negative or affirmative injunction you want. This largely allows you to get around SSI (this is known as “the fiction of ex parte Young”).

Bottom line [after taking into account later limitations--see Ford, Edelman, and Pennhurst] is that modern version of Young lets people get around SSI problems by allowing P's sue state officials for prospective relief to come into line with fed law, but can't get around it when asking for retro relief or to get the state to come into line with state law.

Front 172

Ford Motor Co v Dep’t of the Treasurer

Back 172

you can’t sue a state official to enjoin him to pay you money for taxes that you think were collected unconstitutionally; this counts as a suit against the state for purposes of SSI. This is entirely consistent with Harrison’s view of ex parte Young (only negative injunctions allowed) but modern understandings of ex parte Young read this case narrowly to just be an exception to the general idea that you can get all kinds of prospective relief against a state officer.

Front 173

Edelman v Jordan

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helps draw the line between Ford (a suit against the state) and ex parte Young (not a suit against the state). P’s got an injunction to force state officials to perform their duties in a timely manner, not a suit against the state; but they can’t get an injunction forcing the officials to draw from the state treasury to pay for past times when they hadn’t been timely, that’s not kosher, it’s a suit against the state. So the difference seems to be the directness of the effect on the state treasury: the affirmative injunction to enforce the law better will certainly cost the state money, but it’s only indirect; asking for money directly out of the state treasury crosses the line. Prospective relief is OK, retrospective relief is not.

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Pennhurst

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state officials can’t be sued to enjoin them from acting in a way that violates state law. These are suits against the state for purposes of the fed doctrine of SSI. So you can sue to make them come into conformity with fed law, but not with state law.

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Seminole Tribe

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According to current doctrine, whether Congress can expose unconsenting states to suit in fed court depends on which of their enumerated powers they use to purport to do so. Previous case of Fitzpatrick v Bitzer said that Congress can do so under S 5 of the 14th A; but Seminole Tribe says that the N&P Clause + the Commerce Clause is not enough to do so.

Front 176

City of Boerne v Flores

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SC lays out the framework for what counts as “appropriate legislation” WTMO S 5 of the 14th A:
• Congress must be trying to eliminate violations of the 14th A with the legislation; and
• The means chosen must be proportionate to and congruent with the violations it’s trying to eliminate or remedy.

Front 177

Kimmel

Back 177

prohibiting age discrimination is not a valid use of S 5 powers. However, it can be prohibited using other powers, such as Commerce Clause power. But then, if it was using its Commerce Clause powers, then Congress can’t validly create a fed cause of action to sue states in fed court to enforce it—it takes S 5 powers to abrogate SSI! (Though consistent with (the modern understanding of) ex parte Young, Congress could give you a cause of action to sue state officials to prospectively enforce it.)

Front 178

Alden v Maine

Back 178

Kennedy’s opinion says that Congress can’t abrogate the SSI defense in state court because nothing in the Const gives it the power to do so, it’s simply outside the reach of any of Congress’s enumerated powers. [Another argument might have been that SSI is like the 1st A, enshrined in the Const and so even if Congress otherwise would have power to abrogate the defense in state courts, SSI would be a trump. Nelson doesn’t think that’s right, though.]

Front 179

Central VA Community College v Katz

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Bankruptcy clause is an exception, it allows Congress to abrogate SSI even though it’s in Art I.

Front 180

Parden

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[Overruled at the same time Alden came down] Congress could say that if a state operates an interstate RR then it consents to being sued by employees of that RR who are injured in the course of their employment. If this is right, then Congress can get around Seminole Tribe and Alden pretty easily: instead of just purporting to abrogate SSI, just say that states themselves are implicitly consenting by engaging in the activity in question! To prevent that result, the SC overruled Parden the same day it decided Alden.

Front 181

College Savings Bank

Back 181

overruled Parden, it was about false advertising. [Court struck down 14th A argument, which would have upheld creating a cause of action without FL’s consent, because driving away your customers doesn’t deprive you of property.] Said states can’t be made to imply consent to suit just by engaging in a particular activity. There’s a clear-statement rule for states to waive their sovereign immunity: unless they do so explicitly, we won’t infer it. That had for a long time been a statutory interpretation principle for understanding state statutes, but here Scalia applies it more broadly too.

Front 182

McKessen

Back 182

FL taxes different liquors differently. McKessen sues in state court and wins because the tax was unconstitutional, but what remedy? He got an injunction against the state enforcing the tax going forwards, but he also wanted back the taxes he had already paid. State courts, though they said they had power to grant that remedy, said he didn’t deserve it on the merits. He sought review of that decision in the fed SC. Fed SC said they had jur to hear the case because FL had waived SSI (which fits well with Nelson’s understanding of the 11th A). And then the SC also said he won on the merits. Steps:
• A tax is a deprivation of property
• Deprivations of property require procedural safeguards because of the Due Process Clause.
• The procedural safeguards could take a few permissible forms (states have a choice):
o One would be to allow TPs to refuse to pay and get a pre-deprivation hearing to determine the tax’s validity. This could be the TP suing for an injunction, or could be a hearing when the state sues the TP to get him to pay his taxes, but either way there can’t be coercion into paying the taxes before you get a hearing under this option.
o Alternatively, the state could just supply retrospective relief for paying after taxes have been collected. This is what FL had done, but for it to count under the DPC the remedy can’t be limited to prospective relief (this is a direct consequence of there not being provided a pre¬-deprivation hearing).
• The fed SC remanded for FL to decide on the remedy: they could just give McKessen back his taxes, or they could (if the const allowed it) collect back taxes on all the people who had paid a lower tax rate; either way they had to equalize things.

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Examples of PQs

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Borders are a PQ: defer to the President/Congress. (Foster v Nielson)

Question of which foreign sovereign has sovereignty over foreign territory is a PQ. (Williams v Suffolk Insurance Co.)

Whether an extradition treaty with Prussia remained in force after Germany was formed depends on what the political branches say--PQ, baby! (Terlinden v Ames)