Table of Contents

Checklist 2

General Considerations 3

• Federal Courts Introduction: Marbury 3

• Big Themes (last class) 3

Standing 4

• Constitutional Requirements 4

• Congress’s Ability to Confer 5

• Third Party Standing 5

• Facial Challenges vs. As Applied; Separability 6

• Mootness 6

• Ripeness 6

Congress Jurisdiction Stripping? 7

• No Supreme Court 7

• No Lower District Courts 7

• No Federal Court 7

• No Court 7

• Agencies/Legislative Courts — Public/Private Rights 7

• No State Court 8

State Courts 9

• Must hear federal claims 9

Supreme Court’s Jurisdiction 9

• Review of State Court Decisions: Substantive 9

• Review of State Court Decisions: Procedural 9

Federal Lower Courts 11

• Federal Common Law: Federal Statute preempt state law that would otherwise govern 11

• Implied Cause of Action: Right of Private Action 11

• Implied Cause of Action: Constitutionally Necessary Remedies & Bivens 12

• Statutory Limits to Federal Court Jurisdiction 13

• Non-Statutory Limits to Federal Court Jurisdiction: Exhaustion, Pullman, Younger 13

SMJ: Federal Question Jurisdiction 16

• Scope of Statutory Grant 16

• Scope of Constitutional Grant 16

Sovereign Immunity 18

• Historical/Constitutional Background 18

• Suits Against States 18

• Suits Against Officials 19

• §1983 Actions — Suits Against Officers 19

• Official Immunity 20

• Suits against Local Governments 20

Habeas 21

• Models & Policy of Federal Habeas 21

• Mechanics 21

• Claims Litigated in State Court (Re-litigation) 21

• Retroactivity 21

• Claims NOT Litigated in State Court (Defaulted) 22

• War on Terror & Habeas 22

Checklist

1. Standing

   1. Third-Party Standing

   2. Redressability: Injunctions (Lyons, Linda RS)

   3. Probable Injuries (Clapper, Susan B. Anthony, Lyons)

   4. Congress’s Ability to Confer

   5. Facial vs. As Applied & Separability

   6. Mootness/Ripeness

2. State/Fed:

   1. No state law issues in federal court (Pennhurst, Martinez)

   2. Independent and Adequate State Substantive Grounds (Muller, but “fair and substantial basis” OR unclear, Michigan v. Long).

   3. Adequate State Procedural Grounds

   4. Federal Common Lawmaking Preempt State Law

3. Jurisdiction Stripping

   1. No Supreme Court (Tricky; Motives, Klein; Article III.)

   2. No Lower Court (OK under Sheldon v. Sill, but motives, Klein)

   3. No Federal Court (Article III; cf. cases where court found constitutional remedy)

   4. No Court (Battaglia?)

   5. No State Court (Tafflin Test for Divestment)

   6. Administrative/Legislative Courts: Private/Public Rights

4. Limits on Federal Court Jurisdiction

   1. Abstention: Exhaustion, Pullman, Younger, Colorado River

   2. Preclusion

   3. Anti-Injunction Act

   4. Federal Ingredient (& Federal Protective?) Jurisdiction [Constitutionally mandated]

5. Federal Court Jurisdiction

   1. “Arising Under”

   2. Declaratory Judgment Act

   3. Implied right of action under Congressional Statute (but not if any remedial measure in statute)

   4. §1983 (but impliedly withdrawn by statute?)

   5. Bivens

6. Sovereign Immunity

   1. State: Abrogation

   2. Official: Absolute/Qualified

   3. Federal

   4. Damages v. Injunction

7. Habeas

   1. In General: AEDPA, Retroactivity, Relitigation vs. Procedurally Defaulted

   2. Citizen/Non-Citizen

   3. Detained in US/Guantanamo/Abroad

   4. Boumediene Factors

General Considerations

Federal Courts Introduction: Marbury

• Constitution requiring liquidation through practice and precedent. (Madison, Federalist 37)

• Constitutional Convention: Madisonian Compromise; Departmentalism (REJECTED in Marbury), 1789 Judiciary Acy.

• Marbury (1803):

  • Stuart v. Laird (1803): Can Congress cancel a judgeship? Article III suggests life-time tenure. BUT Congress can create/remove judgeships for financial reasons.

  • Five Key Principles:

    • (1) Judicial Review

    • (2) Supreme Court as Authoritative Interpreter of Constitution: “Emphatically the province and duty of the judicial department to say what the law is”

    • (3) Federal courts have power to review actions of Executive Branch

    • (4) Political questions NOT reviewable by court [Prudential concerns]

    • (5) Article III creates ceiling on Supreme Court’s original jurisdiction

  • Rights and Remedies:

    • “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury”

    • “The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”

    • “[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has the right to resort to the laws of his country for a remedy.”

• Models:

  • Private rights model: US Courts require a private complaint. Courts decide constitutional questions to determine concrete rights of individuals, no Advisory Opinions. Cf. Aetna v. Haworth (1937) (Declaratory Judgment Act OK)

  • Special Functions Model: “Emphatically the duty of judicial branch to say what the law is.” Courts have authority outside the grip of political pull/pressure, to say what the law is. Important (for congress) to create opportunities to let Courts pronounce what the law is.

  • Prudentialism: Some things courts don’t want to do if they would pronounce on questions in particular ways. Avoidance of Stuart v. Laird; effort to domesticate or celebrate/recognize some play in the joints… won’t become involved in certain questions for various reasons.

Big Themes (last class)

Standing

Constitutional Requirements

• Injury-in-Fact:

  • Actual: ...

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