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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................................................................................................. 9Must 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
SS 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

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Retroactivity..................................................................................................21 Claims NOT Litigated in State Court (Defaulted)...............................................22 War on Terror & Habeas..................................................................................22

Checklist (1) Standing a. Third-Party Standing b. Redressability: Injunctions (Lyons, Linda RS) c. Probable Injuries (Clapper, Susan B. Anthony, Lyons) d. Congress's Ability to Confer e. Facial vs. As Applied & Separability f. Mootness/Ripeness (2) State/Fed: a. No state law issues in federal court (Pennhurst, Martinez) b. Independent and Adequate State Substantive Grounds (Muller, but "fair and substantial basis" OR unclear, Michigan v. Long). c. Adequate State Procedural Grounds d. Federal Common Lawmaking Preempt State Law (3) Jurisdiction Stripping a. No Supreme Court (Tricky; Motives, Klein; Article III.) b. No Lower Court (OK under Sheldon v. Sill, but motives, Klein) c. No Federal Court (Article III; cf. cases where court found constitutional remedy) d. No Court (Battaglia?) e. No State Court (Tafflin Test for Divestment) f. Administrative/Legislative Courts: Private/Public Rights (4) Limits on Federal Court Jurisdiction a. Abstention: Exhaustion, Pullman, Younger, Colorado River b. Preclusion c. Anti-Injunction Act d. Federal Ingredient (& Federal Protective?) Jurisdiction [Constitutionally mandated]
(5) Federal Court Jurisdiction a. "Arising Under" b. Declaratory Judgment Act c. Implied right of action under Congressional Statute (but not if any remedial measure in statute) d. SS 1983 (but impliedly withdrawn by statute?) e. Bivens (6) Sovereign Immunity a. State: Abrogation b. Official: Absolute/Qualified c. Federal d. Damages v. Injunction (7) Habeas a. In General: AEDPA, Retroactivity, Relitigation vs. Procedurally Defaulted b. Citizen/Non-Citizen c. Detained in US/Guantanamo/Abroad d. Boumediene Factors

General Considerations

* Federal Courts Introduction: Marbury o o

Constitution requiring liquidation through practice and precedent. (Madison, Federalist 37) Constitutional Convention: Madisonian Compromise; Departmentalism (REJECTED in Marbury), 1789 Judiciary Acy.

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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 Formula: (first three constitutionally mandated)
? Injury-in-Fact
? Causation: Action challenging caused injury
? Redressability: Is remedy enough to address injury
? (Prudential): Some wariness recently about whether standing has a prudential component; going to hold off for another class. Standing for an injunction and standing for damages must be analyzed separately (Lyons) Standing rules depend on what court you're in (ASARCO)

* Constitutional Requirements o

Injury-in-Fact:
? Actual: traditional liberty or property interest, but not necessarily
? Fear of pollution, refraining from using outdoor facilities (Friends of the Earth, 2000)
? Quasi-sovereign interests, global warming & greenhouse gas (Mass v. EPA, 2007)

BUT interest that is a mere byproduct of suit not sufficient (Vermont Agency v. US ex rel. Stevens, 2000)
? Group Standing: Industry groups might have standing under Lujan, but maybe not environmental groups b/c lack common law liberty/property interests (Sierra Club)
? ? Plead specific facts, not just "I want to violate statute."
? Concrete
? p's general right that government be administered according to law and public moneys not be wasted does not give them standing (Fairchild v. Hughes (1922))
? No standing to challenge CIA accounting (United States v. Richardson, 1974)
? Discrimination itself can cause injuries (Heckler v. Mathew, 1974, social security and spousal rights)
? Abstract stigmatic injury NOT cognizable, but denial of opportunity for integrated injury IS (Allen v. Wright, 1984; but no causation)
? Particularized
? Richardson: if asserting generalized grievance, no standing
? Lujan: ban on generalized grievances is constitutional, not prudential
? Akins: Even if harm is widely shared, if concrete then standing is still possible
? Already Inflicted or Imminent:
? P lacks standing if not actual or imminent (Lujan v. Defenders of Wildlife, 1992)
? Statistical probability that some members of enviro group suffer harm not sufficient (Summers v. Earth Island Institute, 2009)
? Probable Injuries: o "Certainly Impending" --- Clapper (2013, No standing "we're likely to be wiretapped"; but maybe just b/c national security?); o "Substantial threat" --- Susan B. Anthony List (2014, YES standing for 1A violations; 1A is a thing the Court is good at) Causation: Harm must be fairly traceable to [?]'s Conduct. [Overlaps w/ Redressability]
? Forcing law enforcement to act may not guarantee remedy (Linda R.S.)
? IRS failure to revoke tax exemption not causing segregation (Allen v. Wright, 1984)
? Lost chance to compete for space in entering class sufficient (Bakke, 1978) Redressability: Demonstrate standing for each form of relief.
? No injunction for forward-looking activity (L.A. v. Lyons, chokehold; OK for damages) Prudential:
? No third-party claims. (Sierra Club); but see exceptions
? No suits as taxpayer with general grievance (Frothingham, 1923; Flast v. Cohen (1968): upheld taxpayer Establishment Clause challenge under "double-nexus" test; but later confined to its facts by Hein, Winn)
? Must be within Zone of Interest protected by the statute (e.g., Richardson)
? Generalized grievances and legal rights of third party --- prudential rather than constitutional bar for standing. (Warth v. Seldin, 1975)
? Parents disagree about bringing the action on behalf of the daughter in school (Newdow, 2004)
? Lexmark Intern. v. Static Control Components (2014): called into question the continuing validity of prudential standing. Recharacterized zone-of-interest inquiry as a question of statutory interpretation: claim filed by plaintiff fell within scope of right of action under Act. Professor's Equilibration Thesis: Relationship b/w Standing, Merits, and Remedy.
? ? Can't know injury without considering the provision under which the individual is suing, and whether that provision gives a person authorization to sue under such an injury.
? Frothingham: Can't sue government for spending money on elections; Flast: Sue about religion.
? Matthew v. Heckler: More $ for women, and if unconstitutional, $ for women goes DOWN ---
Men STILL have standing (EP)!
? Allen v. Wright (taxes & segregated schools) and Linda RS as merits cases. How would a court tell the IRS or dead-beat Dad what to do?
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* Congress's Ability to Confer o

o o o o o o

Summary
? Congress cannot confer upon all persons a right to have the Executive pursue procures established by law (Lujan) --- "Scintilla"
? But Congress can define injuries and chains of causation (FEC v. Akins): Look to Constitutional provision, whether Framers would have imagined the constitutional provision would be subject to enforcement.
? Congress not bound by common law limitations, but in order to have standing p must still demonstrate actual injury (FCC v. Sanders)
? If Congress properly confers standing to suit, Congress's conferral of standing to sue will displace any prudential objections to standing Flast v. Cohen: Harlan's concurrence: under Article III courts cannot expand standing on their own, but if Congress does it, it is permissible Trafficante: right to be free from adverse consequences of racial discrimination sufficient to allow white tenants of apartment complex to sue owner to challenge discrimination against black applicants in violation of 1964 Civil Rights Act FEC v. Akins (1998): Congress can designate an interest in information as a basis for an injury and therefore standing to sue, it can do that Must fulfill both congressional injury and traditional standing requirements (Lujan): some things that would not have counted as injuries in the absence of a statute that will count afterwards, but Congress can't make injuries out of whole cloth. Competitors' Standing: FCC v. Sanders Bros. (1940), allowed a competitor to challenge a broadcast license, in Communications Act. Qui tam relator has standing (Vermont Agency, 2000)

* Third Party Standing o o

Generally, p cannot assert rights of a third party. Three exceptions:
? (1) "Valid rule" case: Challenger is an actual/potential [?]. Has a const. right not to be sanctioned except pursuant to a valid rule of law.
? (2) "Real third party" case: close relationship with rightholder
? Doctrinal: (1) Ability of rights holder to bring suit; (2) Relationship; (3) Impediments created by statute
? Sufficiently close relationship: Doctors/patients (Griswold); vendor/customer (Craig v. Boren); criminal [?] and prospective juror (Powers v. Ohio); attorney/client (Triplett)
? Must be existing relationship (Kowalski, lawyers and crim. [?]s, unassigned)
? Must be in 3rd party's interests (Newdow, Pledge of Allegiance)
? (3) Facial Challenge: invalid as applied to everyone. See below.

* Facial Challenges vs. As Applied; Separability o o

o

Facial challenges are generally disfavored.
? Statute presumably separable (Yazoo), must be NO set of circumstances where valid (Salerno) First Amendment:
? Overbreadth Doctrine. Rationale: Chilling of free speech. Ex/ Jews of Jesus (1987, "First Amendment Free zone") --- No obvious limiting/narrowing or saving construction
? Vagueness Doctrine: Cannot tell if statute applies to them. Holder v. Humanitarian Law Project (2010, parties can only challenge statute as vague as applied to them?) Successful Facial Challenges outside 1A Context:
? Aptheker (1964): restricting ability to get passports; right to travel
? Morales (1999): Chicago gang-loitering ordinance
? Equal Protection
? Craig v. Boren: Gender discrimination
? Abortion Cases: Ayotte, Gonzales v. Carhart

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Separability
? Statutes can be disaggregated into various sub-rules.
? Yazoo & Miss. Valley R.R. v. Jackson Vinegar Co. (1912): established this principle; Court declined to speculate on whether statute would be invalid as applied to a different fact pattern
? Statute treated as non-separable if it is evident that the legislature would not have enacted the statute without the invalid provisions (US v. Jackson, 1968)

* Mootness o o

DeFunis (1974): Law school, in last semester. Exception: Cases "Capable of repetition by evading review" (FEC v. Wisconsin Right to Life (2007))
? Note: Class actions, named plaintiff must have standing.
? Private rights model not really fit? (Fisher v. Texas, 2013)

* Ripeness o o o o

Definition: adequacy of the development of the facts to frame for the Court the issue that the plaintiff wants resolved at a particular time United Public Workers v. Mitchell (1947): Hatch Act, employees of federal government can't do certain roles in political campaigns. No justiciable case. Test for Ripeness: (1) Fitness of issues for adjudication given current factual development; (2) Hardship to parties (Abbott Labs) Lyons: Don't know what will happen in the future?

Congress Jurisdiction Stripping?

* No Supreme Court o o o

SUMMARY: External rights-conferring provision (DPC/EP); Motives have to be legitimate (Klein, but see McCardle). Article III: McCardle, still had orig jx; Felker had "extraordinary writ". Prof. Charles Black: Ought not take away appellate jurisdiction, bedrock of democratic legitimacy and checks/balances. Ex Parte McCardle (1869): Supreme Court's authority is subject to Congressional exceptions; don't look at motive (but see Klein) Felker v. Turpin (US 1996): heard a original writ to avoid ruling on a statute that removed appellate review of a certain habeas corpus cases

* No Lower District Courts o o o o o o

SUMMARY: OK under Article III; Check rights-conferring provisions (DPC/EP); Motives have to be legitimate (Klein, but see McCardle). Sheldon v. Sill (1850): Congress has discretion to create lower federal courts, and determine their jurisdiction Congress can take away a specific remedy in a specific type of case (Lauf).
[State courts must entertain constitutional claims, Truax 1921) Congress can take away jurisdiction: E.g., Tax Injunction Act (1932) (state tax; cannot sue for an injunction as long as there is a plain, speedy and efficient remedy in state court); Johnson Act (1934) Lockerty v. Phillips (1943): Congress has discretion to divide jurisdiction over issues.

* No Federal Court o o o o

SUMMARY: Article III ("Judicial power shall extend") --- Must be SOME court. Uniformity argument for all "arising under" cases. Lauf/Shinner: Can adjust remedies but can't bar access. Santa Clara Pueblo v. Martinez (1978): federal courts possess no jurisdiction over suits to enforce the federal Indian Civil Rights Act. Tribal courts, no Supreme Court review. US v. Klein (1871): Congress can't legislate jurisdiction based on the result it wants (impermissible motive!) See Bowen, Webster --- Construes statute to NOT encompass constitutional claims
? Cf. Felker, St. Cyr; Battaglia.
? Cf. Cary v. Curtis.

* No Court o

Not allowed, at least not for constitutionally necessary remedies. And Courts have jurisdiction to review

jurisdiction-stripping statutes. (Battaglia, 2nd Cir. 1948). Cf. Klein (1871): No impermissible end.

* Agencies/Legislative Courts --- Public/Private Rights o

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Private Rights: Congress can give legislative courts authority, subject to Article III oversight.
? Debate: whether ONLY Art. III court can decide (Brennan's Formalist approach) or subject to oversight (Crowell, balancing approach)
? Art. III necessary for (1) Cases arising under (Crowell); (2) State law counterclaims (Northern Pipeline)
? Balancing:
? Consent, Fairness, SOP and Article III Oversight. (Crowell, 1932)
? CFTC v. Schor (1986): OK to give reparations to injured consumers as adjunct of Art. III court; can hear state law counterclaims under balancing test.
? Due Process forbids administrative proceeding being used conclusive element in criminal offense (Mendoz-Lopez, 1987)
? Formalist:
?????Northern Pipeline v. Marathon (1982): Brennan plurality, bankruptcy courts unconstitutional. (1) Only Territorial or Military courts can do private rights. (2) Had too much power under adjunct model.
? Granfinanciera (1989): Jury trial must be provded in bankruptcy court when seeking damages and private rights.
? Union Carbide (1985): ?
? Stern v. Marshall (2011): Counterclaim in state common law in bankruptcy court. Private Rights: Congress can cut off access to Article III courts completely.
? Murray's Lessee: Congress can withdraw judicial review for public rights issues. [Professor: WTF?
? Bowen: Affirmative Action case, allows constitutional claims despite statutory restriction.
? BUT Webster v. Doe: Public right b/c wants job from gov't. Magistrate Judges: consistently upheld, very accountable to Art. III judges.
? 28 U.S.C. SS 636(c): civil case brought in district court, can consent to magistrate.
? Raddatz (1980): Upheld use of magistrates; no need to relitigate facts
? Peretz (1991): AIII may be waived if under total control and jurisdiction of DJ.

* No State Court o o

o

Tafflin Test for Divestment: Congress can signify divestment (1) Explicit statutory divestment; (2) Unmistakable implication from leg. history; (3) Incompatibility with fed. interests. Here, "may sue in fed. court" = permission, not divestment Constitutional (Tarble's Case, 1872): Military habeas, can't sue in state court.
? But see Madisonian Compromise vs. Necessary Remedies (Boumediene)
? Therefore, read it as a "implied preclusion" case. Doctrinal Take Away: Presumption that Congress intends concurrent state/federal jurisdiction unless explicitly or strongly implicitly signify otherwise. However, habeas/mandamus may be federal court only. Damages for federal officers OK in state court; maybe not injunctions

? NOTE: Substitutability of Remedies (Cary v. Curtis, 1845)
? Constitutional Rights to Remedies: Habeas Corpus (Boudemeine); Just Compensation (First English)

State Courts

* Must hear federal claims o o

Must hear constitutional claims (Truax) Must recognize and enforce any right --- substantive or procedural --- that is necessary to implement the federal policy

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