FedCts Condensed

8/8/2019 FedCts Condensed

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Chapter 1: Justiciability

A. Advisory Opinions1. Advisory Opinions those that arise out of opinions on the Constitution, from

a piece of legislation or from executive actions, but not out of a case or controversy, are constitutionally forbidden. Muskrat v. US Requirements: (1) there must be an actual dispute b/w adverse litigants and (2)there must be a substantial likelihood that a federal court ruling in favor of aclaimant will bring about some change or have some effect .

a) Exception a declaratory judgment can sometimes be asked for without a case. Federal courts can issue declaratory judgments if there isan actual dispute b/w adverse litigants and if there is a substantiallikelihood that the favorable federal court decision will bring about somechange.b) Declaratory Judgment : a judgment of a court which determines the

rights of parties without ordering anything be done or awarding damages.While this borders on the prohibited "advisory opinion," it is allowed tonip controversies in the bud.

(1) Examples : a party to a contract may seek the legal interpretation of acontract to determine the parties' rights, or a corporation may ask a court todecide whether a new tax is truly applicable to that business before it pays it.

2. Finality Principle Judicial Decisions Must be Final!a) When a case is justiciable, the finality principle means that Congresscannot reverse the final decision by the judicial branch by mandating anew judicial proceeding with a different result. Plaut v. Spendthrift (1995).

B. Standing1. Standing determination of whether the plaintiff is the appropriate person topresent the dispute to the courts.2. Mandated by the Constitution in Article III.3. If the court is unanimous on the outcome of the legislation beingconstitutional, then most likely it will bypass the standing issue, decide the caseon the merits, and uphold the legislation. If the court is split, then it probably willattack the standing.4. Constitutional Barriers : derived from the courts interpretation of article III; asa constitutional restrictions cannot be overridden by statute .

a) INJURY IN FACT: Plaintiff must establish an injury in fact. Injurygives a personal stake in the case or controversy. There has to be an injuryto a right.

i) Sierra Club had no standing b/c general interest of club inprotecting environment not enough; at least one member musthave sustained some injury. complaint must allege thathe/she has personally suffered an injury.


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ii) The right can be created by constitution, statute, common law,etc.

b) CAUSATION: Plaintiff must allege causation the injury sustainedwas caused by the wrongful government conduct of which Imcomplaining.

c) REDRESSABILITY: The court must be able to provide a remedy.There must be redressability. If the conduct is eliminated or changed, thenthis remedy will redress my injury.

5. Prudential Barriers : although the Constitution permits federal courtadjudication, the Court has decided that in certain instances wise policymilitates against judicial review. (since prudential limitations are not derivedfrom the Constitution, Congress may instruct the federal courts to disregardsuch a restriction.)

a) Third-Party Standing generally, one cannot assert the constitutionalrights of another.

(1) Exceptions what do you have to show before alleging rightsof third-parties.(a) There must be substantial obstacles in the path of thosewho are being violated.(b) There has to be a reason that the person filing suit willadequately represent the rights of the third party.

(i) Many discriminatory cases have issues where third-partystanding is allowed.

(c) Close-relationship between the plaintiff and the partywhose rights are being violated.

b) Generalized Grievances generally, there is a prohibition againstgeneralized grievances which prevents individuals from suing if their onlyinjury is as a citizen or a TXP concerned w/ having the government followthe law.

(1) this is an injury that you may sustain individually, but so willeveryone else. It is something that affects all citizens equally.Even though you may suffer a concrete injury, cant bring one thateveryone is suffering also. However, just because a large amountof people are injured, it does not mean it will be a generalizedgrievance. But, the Court wants to avoid instances where peopleare bringing generalized injuries.

(2) Taxpayer Cases(a) When dealing with taxpayer suits, frequently a concreteinjury cannot be shown although the conduct may very wellbe running rough shot over the Constitution.(b) Congress could provide the right to the people or taxpayer to sue.(c) Taxpayer Cases under the Establishment Clause


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(3) Paleaz Example government gives police money to outfitcars with listening devices that can hear any conversation in your home while just driving by. Can you challenge it as a tax payer?No, because you would have to allege that the 4 th provides aconstitutional limit on the tax and spending clause. You challenge

it under the 4th

if you were arrested on something.c) Zone of Interest plaintiff seeking standing must be within the zone of interests protected by the statute in question.

(1) the Law being violated is of the nature which brings the Plaintiff in the zoneof which the law is designed to protect.- look at intent and effect of the law- of a is suing pursuant to a statutory provision, in order tohave standing the must be part of the group intended to benefitfrom the law.

6. Associations: or organizations can sue based on injuries to itself or based oninjuries to its members. ONLY has standing if it or its members would be

affected in a tangible way by the challenged action.a) Sierra Club no standing b/c club failed to allege harm to itself or thatany of its members had used the park in question.b) Organization has standing to sue on its own behalf if it has beeninjured as an entity.c) organization may try to sue on behalf of its members.

- NAACP v AL SC allowed standing to NAACP, in arepresentational capacity for its members, to challenge a state lawrequiring it to disclose its membership lists. NAACP asserted its owninterests as an organization as well as associational and speech rightsof its members.

7. Legislative Standing: legislators have standing only if they allege either thatthey have been singled out for specially unfavorable treatment asopposed to other members of their bodies or that their votes have beendenied or nullified. Raines v Byrd

C. Ripeness1. Ripeness involves whether a dispute has progressed far enough to makejudicial review appropriate. e.g., A married couples challenge of an abortion-restricting statute is not ripe for adjudication unless the woman is pregnant. i.,e.,Someone is trying to enforce a law or redress an injury before an injury evenoccurs.2. Two Requirements:

a) Constitutional Barrier Plaintiff must establish that the injury isimminent and not merely speculative almost certain to occur with somedegree of hardship.


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b) Prudential Barrier There must be a determination, based on thespecific facts of the case, by the judiciary that the case at this early stage isfit for judicial resolution .

3. Distinguishing Ripeness from Standing Nichol, Ripeness and theConstitution

a) Three questions to ask:(1) Whether the type of injury alleged by the plaintiff is justiciable;(2) Whether the plaintiff personally has suffered or will suffer theinjury; and,(3) Whether the plaintiff is sufficiently close to suffering the injuryto make judicial intervention appropriate

b) Standing requires a litigant show they personally suffered somethreatened or actual injury. The ripeness requirements focus on thesubstantiality of threatened or actually pending future injuries.c) An overlap occurs in the measurement of the cognizability of contingent or threatened harms.

D. Mootness1. Mootness concerns disputes that are too ripe. Here the dispute is stale, wherejudicial intervention would no longer be useful.2. The Court considers this a constitutional barrier, unlike standing whichencompasses both constitutional and prudential.3. Two Problems Regarding Mootness

a) First, a defendant may in bad faith seek to manipulate the doctrine,discontinuing a challenged practice when an action is filed but reinstating

it after the litigation is dismissed.b) Second, some problems are of such limited duration that judicialresolution cannot be obtained quickly enough.

4. Collateral Remedy Doctrine: Spencer v. Kemna (1998) As long as anyportion of the remedy is still available, the case cannot become moot.5. Capable of Repetition, yet Evading Review Doctrine

a) Roe v. Wade (1973) Pregnancy provides a classic justification for aconclusion of nonmootness. It truly could be 'capable of repetition, yetevading review.' We, therefore, agree with the District Court that JaneRoe had standing to undertake this litigation, that she presented ajusticiable controversy, and that the termination of her 1970 pregnancy hasnot rendered her case moot.b) Requirements for this doctrine:

(1) Injury is short term(2) The plaintiff is likely to be subjected to the same harm again

(a) Election cases while the case is pending, the electionends. The Court has been reluctant to hold the case is not


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(1) Luther v. Borden (1849) the case involved a dispute betweensupporters of conflicting governments in the state of Rhode Island.They had failed to adopt a new state constitution and wascontinuing to operate under the original charter. The Court refusedto hear the case. The Guaranty Clause (Art IV, Sect.4) allows only

Congress to determine what the government of the state is.b) Electoral Process / Mal-apportionment Clauses Congress ability toregulate its internal process Adam Clayton Powell

(1) Gerry mandering issues have ?... always been heldjusticiable.(2) Baker v. Carr above(3) Courts have generally stayed out of primaries, but they did notstay out of Bush v. Gore .

c) Foreign Affairs / Relationships with Foreign Nations (1) Challenges of pres. war powers have been held non-justiciable.

Generally stay out of foreign policy wont determine whether wars are justified Vietnam and First Gulf War. Can we do thiswithout Congressional declaration of war? This iraq war; Pres gotthe permission of congress.(2) Foreign affairs are usually non-justiciable issues are complexand judiciary lacks expertise advocating responsibility to theother branches creates a lack of responsibility on those branches.Do we choose judges based on their foreign affairs policy? No, thepresident and / or State Department is better suited to deal with andhandle these issues. The Courts function is to interpret theConstitution.(3) Goldwater v. Carter

d) Congress ability to regulate internal affairs (1) Powell v. McCormick (2) US v. Monrose

e) Ratification of Constitutional Amendments(1) Scholars say this should be out of bounds of the judiciary.

(a) Underlying purpose of judicial review is to act as acheck on the other branches. But, what check on thecourts? Federal judges are appointed for life and can not beremoved except for bad behavior. How do we check?One way to check them is to amend the Constitution.(b) Can also check through the impeachment powers.(c) In both areas, the court has found these to be non-justiciable. However, some disagree.

(2) Pullman v. Miller left to Congress when the time has expiredfor ratification. Kansas refused to ratify. 12 years later theratification is out there. Finally, this legislature wanted the


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ratification. Ps challenged second legislatures change in decisionto ratify. Article V grants power of amendment to congress alone not subject to judicial control, guidance, or interference of anykind. Deciding the case on the merits, the Court has held thatCongress has the power to set time limits on ratification of

amendments.(3) Equal Rights Amendment Iowa ratified and then rescinded.Challenged change and Congress expanded time for ratificationby only a majority vote extended for 3 more years over the initial7. Court found that the case was moot by the time it hit the USSCbecause the 3 years expired. The lower court found the casejusticiable; but that it was unconstitutional, but the SC threw it outbecause of being non-justiciable; moot.(4) Balanced budget if 2/3 of states call for convention, thenCongress must hold. Amendment can start in senate and then go tostates or States can start and bring to congress. Balanced

budget has been on the slate for 32 years, but only 34 states haveratified. Need 2 more states. Can the court force resolution of thetime frame for ratification?

f) Impeachment process(1) Only way to control the judges(2) Nixon v. US judge charged and convicted of bribery andbrought up for impeachment. See above. Non-justiciable politicalquestion. Up to congress to determine how to try Nixon.

g) Supervision of Political Bodies(1) Kent State, Ohio National Guard supervision

7. Justiciable Areas a) Racial discrimination issues have always been justiciable.

8. Constitutional Amendments what role does the court play? It doeshappen. 2/3s in each house and then has to be ratified by of states. If 2/3 of states call for convention, then can also amend. Suppose there is a proposal andCongress sets a time limit court held cant do this. Can congress extend thetime for ratification? Court has been circumspect in this area and not sure whatthe Court will do.

CHAPTER 2: Congressional Control of Fed Jurisdiction

Introduction- The Constitution gives Congress some power over the appellate jurisdiction of

the Supreme Court. Article III, Section 2, allows this with such exceptions, and under such regulations as the Congress shall make.

- Judiciary Act of 1789 provided trial court jurisdiction in diversity casesonly. Congress did not grant the lower federal courts jurisdiction over federal questioncases until 1875.


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- Article III does say that judicial Power shall be vested, not that it may bevested. Some argue that any jurisdiction-stripping statute would violate another constitutional provision by excluding classes of litigants or cases entitled toconstitutional protection.

Jurisdiction Restrictions Overview- Supreme Courto the goal of jurisdictional restrictions is the de facto reversal, by means far less

burdensome than those required of a constitutional amendment, of several highlycontroversial SC decisions dealing with matters such as abortion, school prayer,and busing.

- Lower Courtso Art III Congress has discretion as to whether to create any lower federal courts.o Congress never has vested the full jurisdiction of art. III in the lower federal

courts.

*federal courts undoubtedly would have jurisdiction to decide the constitutionality of statutesdenying federal courts the authority to hear particular types of cases. Marbury v. Madison

Congressional Restriction of the Jurisdiction of the United States Supreme Court- issue is whether Congress can prevent the Supreme Court from hearing cases on

particular topics?- Uncertain whether jurisdiction stripping is constitutional b/c Congress has rarely

attempted, and never in a manner that has been interpreted as precluding all SC review.- Absence of any court, state or federal would raise due process issue. If SC review was

limited, there would remain some court to hear the claim.- Congress may remove original jurisdiction from SC which it granted to SC

Ex Parte McCardle Congress granted appellate review over cases under the Military Reconstruction Act; SC reversed conviction of McCardle.Congress then revoked SC appellate jurisdiction over the cases under theAct. Ct held that Congress may remove jurisdiction which it has granted.SCs authority stems from the constitutional it is conferred w/ suchexceptions and under such regulations as Congress shall make. Act wasan unmistakeable exception to the Courts appellate jurisdiction.

o Opponents of jurisdiction stripping claim that McCardle establishes only thelimited proposition that if there are two statutory grounds for SC jurisdiction,Congress may repeal one of them.

o Felker v. Turpin SC unanimously upheld the constitutionality of a jurisdictional

restriction which prevented the SC from having appellate review of a habeascorpus proceeding, placing this w/ court of appeals. Ct found that it did not repealthe courts authority to entertain original habeas corpus petitions.

o US v. Klein SC held that Congress cannot restrict Supreme Court appellatereview in an effort to direct particular substantive results.

Supporters of jurisdiction stripping argue that despite the broad languagein Klein, that decision does not support the general proposition thatCongress may not restrict jurisdiction in order to direct substantive


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outcomes. Rather, it stands for the much more limited principle thatCongress cannot limit the SCs jurisdiction in a manner that violates other constitutional provisions.

o Plaut v. Spendthrift Farm, Inc . SC found congressional statute unconstitutionalwhich reopened cases which were time-barred b/c of a violation of separation of

powers. Plaut shows the impact of the Case-or-Controversy Clause as protectingan area from incursion by the political branches, demonstrating that the Clausedefines a boundary between mutually exclusive areas of federal power.

o Critics also argue that Congress cannot use its power to control jurisdiction in away that violates other constitutional provisions.

o Separation of powers arguments abound as well

Congressional Restriction of Lower Federal Court Jurisdiction - argument 1 federal courts must have the full judicial power under article III. Has never

been seriously applied.- Argument 2 congress has authority to determine the jurisdiction of federal courts

because Congress has discretion as to whether to establish such tribunals.o Sheldon v. Sill 1850, seminal case; Stands as strong precedent for the

proposition that b/c Congress has discretion to create lower federal courts,Congress also possesses authority to determine their jurisdiction.

Judiciary Act provided that federal courts could not hear cases wherediversity was created by assignment. SC upheld the Act, holding thatcongress may w/hold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have nojurisdiction but such as the statute confers.

o Lauf v. EG Shinner SC held that there can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the US.

o Yackus SC held that it had no jurisdiction to hear defense of b/c he had notraised the constitutional issue in the prescribed administrative and judicialprocedures. Ct held that Congress had the power to restrict the jurisdiction of thefederal courts and to specify the administrative court as the only forum to hear thechallenges specified.

Congressional Power to Create Legislative Courts - Article III : federal judges shall have life tenure, assuming good behavior, and salaries

that cannot be decreased during their terms in office.o the judicial power of the United States shall be vested in one Supreme Court, and

in such inferior courts as the Congress may from time to time ordain andestablish.

o the judges, both of the Supreme and inferior courts shall hold their officersduring good behavior and shall, at stated times, receive for the Services, aCompensation, which shall not be diminished during their continuation in office.

- Legislative or Article I Courts : court which judges do not have article III protections,including judicial tribunals and administrative agencies that decide art III matters butwhose decision makers lack life tenure and salary protections.


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o Areas were Legislative Courts are Permissible :US Possessions and TerritoriesMilitary TribunalsCivil Disputes b/w US and private citizensAdjunct Courts - criminal matters or for disputes b/w private citizenswhere the legislative court serves as an adjunct to an art III court that canreview the legislative courts decisions.

o Northern Pipeline SC declared unconstitutional the bankruptcy courts createdby the Bankruptcy Act of 1978. plurality opinions; bankruptcy cts did not fit intomilitary, territorial and public rights courts, also could not be adjunct courts. Ctdidnt specify what an adjunct court would be. No life tenured judges w/ salaryprotection. Justices objected to the ability of the courts to hear state law claims.

o Thomas v . Union Carbide ct held that NP stood for the idea that Congress maynot vest in a non-Article III court the power to adjudicate, render final judgment,and issue binding orders in a traditional contract action arising under state law,w/out consent of the litigants and subject only to ordinary appellate review.

*Ct said that legislative courts were permissible for private disputes thatwere closely related to govt regulatory activities. (rejects NP implicationthat there were only 4 areas that could be controlled by legislative courts)Congress, acting for a valid legislative purpose pursuant to itsconstitutional powers under article I, may create a seemingly privateright that is so closely integrated into a public regulatory scheme as to be amatter appropriate for agency resolution.

o Balancing Test : Commodity Futures Trading v. Schor balancing test for appraising the constitutionality of legislative courts.

Benefits of an administrative alternative to federal court litigation (interms of efficiency and expertise) v. the purposes underlying article III.

Two goals of article III ; (1) ensuring fairness to litigants byproviding an independent judiciary and (2) maintaining thestructural role of the judiciary in the scheme of separation of powers.

- Summary: the courts overall approach will be to balance the benefits of using alegislative court against the adverse effects in terms of fairness and separation of powers.More specifically, legislative courts will be allowed for inherently judicial matters as anadjunct to article III courts, in private law disputes in which there is a close relationshipto a public regulatory program, and generally where the benefits in terms of efficiencyand expertise outweigh concerns about fairness and separation of powers.

II. CHAPTER 3 : FEDERAL QUESTION JURISDICTION

A. Introduction1. Constitution grants exclusive jurisdiction in some cases to the states or thefederal government; however, often jurisdiction is concurrent.


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2. If broad jurisdiction is granted to the federal courts, then it substantiallydiminished the number of cases in the state courts, thus diminishing the state courtrole. Also, broad jurisdiction to the federal courts in hybrid cases, those bringingquestions of both federal and state law, would now bring a greater influence of federal authority on state law.

3. Article III, 2 grants the scope of jurisdiction for the federal courts.However, it is not self-executing. Congress determines what jurisdiction theinferior federal courts can have.4. Federal question jurisdiction was not granted to the inferior lower courts until1875.

a) 28 USCA 1331 . Federal question . The district courts shall haveoriginal jurisdiction of all civil actions arising under the Constitution,laws, or treaties of the United States.

5. Two distinct concepts when dealing with federal question jurisdiction:a) The placement of the federal issue whether it comes up in the

complaint, the answer, or elsewhere; and,b) the substantiality of the federal issue.

Meaning of Arising Under federal law for purposes of the federal question jurisdictionstatute

- A case arises under federal law if it is apparent from the face of the plaintiffs well-pleaded complaint either that the plaintiffs cause of action was created by federal law;or, if the plaintiffs cause of action is based on state law, a federal law that creates a causeof action is an essential component of the plaintiffs claim.

- Well-Pleaded Complaint Rule it must be clear from the s complaint that there is afederal question.

o Defense Not Enough - Federal court jurisdiction cannot be based on a federal lawdefense or on the s anticipation of a federal law defense.

o Applied to Removal if a chooses not to present a federal claim, even thoughone is potentially available, the defendant may not remove the case from state tofederal court. However, a may not defeat removal by omitting to pleadnecessary federal questions in a complaint.

o Declaratory Judgment Cases may not circumvent well-pleaded complaint ruleby seeking a declaratory judgment that the federal law is unconstitutional or inapplicable if the complaint in a lawsuit for redress would not state a federalquestion.

- Cause of Action based on federal law a case arises under federal law if it is based on a

cause of action created by federal law. There is a federal question if federal law createsthe cause of action.

- Federal Questions in suits based on state causes of action even if the does not allegea cause of action based on federal law, there is a federal question if it is clear from theface of the s complaint that a federal law that creates a cause of action is an essentialcomponent of the s state law claim.

o Federal statute must itself create a cause of action ct in Merrell Dow held that itis not enough for a federal law to be an essential component of a state law cause


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of action; federal question jurisdiction exists only if the federal law itself creates acause of action, albeit one not relied on by the plaintiff.

Diversity Jurisdiction- Requirement of Complete Diversity no plaintiff can be a citizen of the same state as any

of the defendants at the time the action is filed (prudential concept, not constitutional)o Affect on Removal if there isnt complete diversity, cannot remove a diversitycase to federal court.

o Minimal Diversity one and one are of different states; is the constitutionalrequirement; all that is required under Federal Interpleader Statute

- Each party must be a citizen of a state or foreign country o US Citizen But Not a State Citizen - a person may not sue or be sued in a

diversity case if he or she is citizen of the US, but not a citizen of a particular state.

- Domicile determines individuals citizenship o Individual deemed to be a citizen of the state where he or she is domiciled, the

place where he has his true, fixed, and permanent home and principalestablishment, and to which he has the intention of returning whenever he isabsent therefrom. **only have one domicile state

o Corporation ordinary place of business and state of incorporation.- Amount in Controversy 75k (congressional requirement; not constitutional, can be

changed)o Aggregation of Claims -

Single can consolidate all claims against same to meet thejurisdictional amount even if they do not arise from the same factsMultiple parties cannot aggregate claims; single party cannot aggregateclaims against multiple s

Removal Jurisdiction- Removal only if case could have been filed in federal court generally, s may remove a

case from state to federal court if the matter properly could have been brought by theplaintiff to federal court. (complaint must present either a federal question or diversity of citizenship must exist in order to remove)

- Only Defendant can remove and only from state to federal court - Limits on Removal in Diversity Cases

o No Removal if s Residents removal of a diversity case from state to federalcourt is not permitted if any of the defendants are residents of the state where theaction was filed. (residents voluntarily dismissed from suit by , can remove;if residents dismissed by court, cannot remove)

o Specific Statutes Prohibiting Removal

Transfer of Venue3 Jurisdictional Requirements in Federal District Court1. Subject Matter Jurisdiction (court can bring up at any time sua sponte)


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- Diversity Jurisdiction- Federal Question Jurisdiction

2. Personal Jurisdiction (for the benefit over the party whom you are seeking jurisdiction over;CAN be waived)3. Venue (federal court 28 USC 1391; in a diversity case, proper where any resides

(corporation is held to reside in any district in which it does business))- Transfer of Venue : can transfer to another court for the interest of justice or theconvenience of the parties.

o Proper Venue Required : Can only transfer to another proper federal court (mustbe able to get subject matter jurisdiction; personal jurisdiction and venue)

The Choice of Law in Diversity Cases- No Conflicts : if there is no conflict between state and federal law, both are applied- Conflict of Laws : if state and federal law are inconsistent, the following questions must

be askedo Is there a valid federal statute or Federal Rule of Procedure on point? If so, the

federal law is to be applied, even if there is conflicting state law.o If there is not a valid federal statute or Rule of Procedure, the second question is

whether the application of the state law in question is likely to determine theoutcome of the lawsuit?

If the state law is NOT outcome determinative, then the state law is used.If the state law IS outcome determinative, and there is no countervailingfederal interest, then state law controls. Otherwise, federal law applies.In applying the test, federal courts are to be guided by the goals of the Eriedoctrine, which are to prevent forum shopping and the inequitableadministration of justice.

- Determination of State Law states highest court is the authoritative interpreter of

states law.o State Decision on Point - If the states highest court has a decision on point,

federal courts must apply it b/c Erie holds that federal courts are to apply statecommon law principles.

o No State Decisions on Point the federal court must try to predict how the stateshighest court is likely to decide the case. A federal court in a diversity case is toapply the law the states highest court would likely apply. The federal courtshould consider lower state court decisions, but is not bound to apply and followthem if the federal court believes that they would not be affirmed by that stateshigherst court.

- State Conflicts of Law Policy Klaxon held that federal courts in diversity actions shoulddetermine the conflict of law principles likely to be applied by the forum states highestcourt and follow the same law that would be applied there.

o Transfer of Venue Apply Conflicts of Transferor State when a plaintiff or defendant successfully moves for a change of venue under 1404a, the transfereecourt must apply the choice of law rule that would have been followed in thetransferor court. Van Dusen v. Barrack ; Ferens v. John Deere ;


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Federal Common LawBradeis in Erie there is no general federal common law

There is a substantial body of federal common law concerning topics such as the rights andduties of the federal government, international law, conflicts among the states, and admiralty.

Two categories where federal common law has developed1. Necessary to Protect Federal Interests : federal common law has developed where the SC

has decided that federal rules are necessary to protect uniquely federal interests.a. To protect federal proprietary interests in cases involving the US govt

i. Clearfield Trust widely cited for the propostion that federal courts maydevelop common law to protect the proprietary interests of the US. Thisproposition has been extended beyond matters involving commercialpaper.

b. To safeguard federal interests in litigation b/w private partiesi. Ct has made it clear that federal common law will be developed in suits

b/w private parties only if applying state law would frustrate federalinterests.ii. In cases involving private parties, federal common law will be developed

only if federal law is deemed to preempt state law. Preemptiontraditionally is found if a state law imposes obligations that are mutuallyexclusive w/ federal law, or if a state law frustrates the achievement of afederal objective, or if there is a clear congressional intent to preempt astate law.

c. To uphold federal interests in international lawi. Federal common law is created b/c of the uniquely federal interest in

foreign affairs and b/c the application of state law would frustrate theuniformity needed in the US relations w/ other countries.

ii. b/c of the application of the political question doctrine in many casesrelated to foreign policy, the development of federal common law in thisarea is likely to be minimal.

d. Resolve conflicts among the states2. federal common law rules have developed where the Court has acted to effectuate

congressional intent.

2 part inquiry to determine whether to create federal law to safeguard federal interests1) the court considers whether the matter justifies creating federal law

- no clear criteria exist to guide this determination. The court often looks to whether theunderlying purpose of a constitutional or statutory provision warrants the development of federal common law.

- Clearfield Trust ct held that the rights and duties of the US on commercial paper whichit issues are governed by federal rather than local lawthe duties imposed upon the USand the rights acquired by it as a result of the issuance find their roots in the same federalsources. In absence of an applicable act of congress it is for the federal courts to fashionthe governing rule of law according to their own standards.


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2) if federal law is to be developed, the Court decides its content; specifically, the Courtdetermines whether the copy existing state law principles or to formulate new rules.

- BALANCING TEST in deciding whether to incorporate state law or to fashion newfederal law, the Court balances the need for federal uniformity and for special rules toprotect federal interests against the disruption that will come from creating new legal

rules.

Development of Federal Common Law to Effectuate Congressional IntentOccurs in 2 situations

1) where Congress wants federal courts to develop a body of common law rules under aparticular statute.

a. Congress might provide a broad statutory mandate with the expectation that thefederal judiciary will develop specific standards through a series of decisions.

i. ERISA claimsii. Sherman Antitrust Act

b. GENERAL RULE : the federal judiciary will formulate a body of common law

rules only pursuant to clear congressional intent for such action.2) More controversial area concerns the creation of private rights of action under federalstatutes.

a. Generally, the SC has been reluctant to create new causes of action, even in areaswhere it has been willing to develop common law rules.

b. Absence of federal legislation in some instances the SC has created causes of action.

i. *existence of private rights of action against federal officers for violationsof constitutional rights. Ct has inferred a cause of action for moneydamages against federal officers directly from constitutional provisions,such as the 4 th, 5 th, and 8 th Amds.

c. Statutes w/out private rights of action ct has created a cause of action under statutes where it believes that a private right of action would fulfill congressionalintent.

i. 1 st Approach Borak allows federal courts to create a private right of action, in the absence of any express congressional authorization, if damage suits would help accomplish the legislative purpose for a statute.

ii. 2 nd Cort v. Ash did not permit causes of action to be established simplyb/c they advanced the legislative purpose behind a statute; but was astructured, 4-part inquiry into Congressional intent.

1. is the one of the class for whose benefit the statute was enacted2. is there any indication of legislative intent, explicit or implicit,

either to create such a remedy or to deny one3. is it consistent with the underlying purposes of the legislative

scheme to imply such a remedy for the 4. is the cause of action one traditionally relegated to state law, in an

area of basic concern of the States so that it would be inappropriateto infer a cause of action based solely on federal law?

iii. 3 rd Approach adopted from Powell dissent in Cannon v. Univ of Chicago ; Touche Ross ct held that the court will create a private right of


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action ONLY if there is affirmative evidence of Congresss intent tocreate a private right of action.

1. under current law it appears that the Ct will establish private rightsof action only if affirmative evidence shows that Congressintended to allow such suits.

2. ct will continue existing causes of action; just not create new onesw/out clear congressional intent.

Admiralty and Maritime Cases- Admiralty and Maritime Jurisdiction does not arise under for 28 USC 1331 purposes.- Admiralty and maritime substantive law and jurisdiction is generally a matter of common

law, rather statutory.o No constitutional right to jury trial in admiralty cases; can get jury if brought in

federal court as diversity case or in state court.o No matter where suit brought, it is governed by substantive federal admiralty

law.o Removal : admiralty, maritime case can only be removed from state court tofederal court if there is diversity jurisdiction (no jurisdiction under 1331)

- 28 USC 1333 provides for original jurisdiction over any civil case of admiralty or maritime jurisdiction, saving to all suitors in all cases other remedies to which they areotherwise entitled.

o IN PERSONAM action brought against the owner of the entity that owns thevessel;

Jurisdiction : An in personam action may be brought in federal court under its admiralty jurisdiction, as a non-maritime case under the federal courtsdiversity jurisdiction, or within a state court.

o IN REM action brought against the vessel itself; proceedings are exclusivelywithin the jurisdiction of the admiralty courts

E.g., an action to enforce a lien;

E.g., where a ship owner brings an action to limit liability. Like the libel in rem , the limitation proceeding affords an

opportunity for consolidation of numerous claims all those thatarose during the voyage in question and the judgment dischargesthem all.

A limiting liability action usually occurs when a ship or its crewcauses a tort such as an oil spill.

In order to encourage trade and commerce, the common lawpermitted a ship owner to limit his liability to the value of the ship.

Thus, when a non-fortuitous even occurred, a shipowner will filean action to limit liability thereby establishing the cap of theshipowners liability.

Only a district court judge can here the merits of a limiting claim.


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o Such an action must be brought within 6 months of theactivity which may be subject to the shipowner to liability.

o This may be asserted as an affirmative defense.o State law cannot determine the value of the ship; instead, it

is for the fedl courts.Bringing an in rem action places a maritime lien on the vessel. Norecording is needed and is perfected automatically.The only way to execute on a maritime lien is to bring an in remproceeding

If successful, the court will sell the vessel; Pay the claimant; and, Award the vessel to the purchaser free and clear of all liens.

If the vessel is sold outside of a judicial sale, none of the liens areextinguished. Rather, they remain with the vessel.

If federal admiralty jurisdiction is invoked, there are no requirements of diversity of citizenship or minimum amount of controversy.

o Thus, if the plaintiff is seeking one of the remedies it is otherwise entitled to, itmay only be brought within federal court if it arises under or if diversity exists.

- Navigable Waters of the US : all waters that in there present state can be used or are usedto transport people or cargo w/in the US or b/w the US and foreign countries.

o Interstate Waterways : w/in admiralty jurisdiction so long as the waters form alink in an interstate chain.

o Distinguish Power of Army Corps of Engineers : have power to remove or placeobstructions in waterways, regulate vessels in water that has been navigable

historically. (all waters that at one time created an interstate chain)o In State Operation of Marine Business : w/in admiralty jurisdiction; key is thebody of water, not where the business is operated.

- Vessels : defined as any structure that is capable of carrying people or cargo on thenavigable waters of the US.

o Ports/Docks : not vessels; extensions of land.o Vessels Permanently Removed from Navigation : are not w/in admiralty

jurisdiction; no longer a vessel.o No Size Requirements : takes jurisdiction over anything that could have an impact

on maritime commerce.- Contracts : issue is whether the contract had a direct enough connection over maritime

commerce and navigation.o No English Rule : US does not follow English rule which required that the

contract be formed on the water.o Connection b/w Contract and Vessel :o Building Vessels : outside admiralty jurisdictiono Repair Contracts : w/in jurisdiction, even if work being done on land.

- Torts : need a maritime situs and maritime nexus to bring tort action under admiralty/maritime.


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o Situs: navigable water o Nexus: substantial connection to a traditional maritime activity; 2-prong test

applied in determinationLook to the incident giving rise to the accident and define the incident atan intermediate level of generality (AP doesnt know what this means)

ask whether the incident has the potential to disrupt maritime commerce.Whether the activity giving rise to the incident (intermediate level of generality) is one that customarily, historically performed was by maritimeactivities.

- Liens :

1983 Causes of Action 1983 Suits creates a cause of action against any person who, acting under color of state law,abridges rights created by the constitution and laws of the US.

- 1983 Does NOT create federal jurisdiction creates a cause of action; federal court

jurisdiction must arise under fed question jurisdiction 1331, and 1343(3) which grantsjurisdiction for suits redressing violations of the federal laws that provide for equal rightsof citizens.

o No Jurisdiction to review judgments and decisions of state courts Rooker-Feldman doctrine provides that a party losing in state court is barred fromseeking what in substance would be appellate review of the state judgment in aUS Dist. Ct based on the losing partys claim that the state judgment itself violates the losers federal rights.

- 1983 is the basic vehicle for federal court review of alleged state and local violationsof federal law.

o 1983 is the basis for almost all constitutional rulings arising from the actions of

state and local govts and their officers.- Under Color of State Law

o 1983 under color of any statute, ordinance, regulation, custom, or usage of any state or territory.

o General Rule : 1983 liability exists for all actions taken in an officers officialcapacity, whether authorized by state law or in violation of it.

Monroe v. Pape SC ruled that actions taken by an officer in his or her official capacity are deemed to have occurred under color of law even if they are not in pursuance of any official state policy and even if theyviolate state law. The ct concluded that misuse of power, possessed byvirtue of state law and made possible only b/c the wrongdoer is clothedwith the authority of state law, is action taken under the color of statelaw.Off-Duty Govt Officials : issue whether acting under color of state law or in private capacity. Factors used in determining whether an off-dutypolice officer exercised state authority.

Whether there is a policy requiring officers to be on duty all thetime

Whether the officer displayed a badge or an id card


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Identified himself as a cop Carried or used a service revolver or other weapon or device issued

by the police dept And whether the officer purported to place the individual under

arrest.

Public Employees w/ Independent Duties to Clients : law in areainconsistent

SC has found prison doctors to be under color of state law; noconflict b/w the state and client, same

SC has refused to find a public defender under color of state law,as his loyalty is not to the govt but to the client, even though paidby the govt. role adverse to the state

Private Individuals Liability private individuals who conspire with thegovernment officials may be sued under 1983.Suits Against Federal Officers 1983 generally does not create liabilityfor federal officers, except when federal officers are engaged in aconspiracy with state officials to deprive constitutional rights.

o Exhaustion of Remedies is NOT required for 1983 litigation o Convictions MUST be overturned in order to recover damages for allegedly

unconstitutional conviction or imprisonment, a plaintiff must first have theconviction or sentence reversed on appeal or expunged by executive pardon.

- Persons for purposes of 1983 Liability o Local Govt Officials

No State or Territory Officials SC has held protected by 11 th Amd.o Municipalities under Monell , municipalities can be held liable under 1983 for

their unconstitutional or illegal policies.NO states 11 th amd protects; (below)NO Vicarious Liability a municipality or local govt cannot be foundvicariously liable for the act of its agentsPolicy/Custom

Actions of municipal legislative bodies : actions by theses bodiesconstitute official policies

Agencies Exercising Delegated Authority : official policy existswhen there are actions by municipal agencies or boards thatexercise authority delegated by the municipal legislative body.

Individuals with Final Decision Making Authority : actions by

those w/ final authority for making a decision in the municipalityconstitute official policy for purposes of 1983.

o Municipal liability can not be imposed merely b/c anemployee had discretion in the discharge of his or her duties. An official must be responsible for establishingfinal government policy in order for municipal liability toattach to his or her decision.


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o Crucial question in determining whether an official hasfinal decision-making authority is whether under state or local law, including relevant customs or practices, theperson has policy-making authority for the city.

Policy of Inadequate Training or Supervision : demonstrating a

policy of inadequate training requires proof of deliberateindifference by the local government.o Canton described two situations of indifference

Failure to provide adequate training in light of foreseeable serious consequences that could resultfrom the lack of instruction.Where the city fails to act in response to repeatedcomplaints of constitutional violations by itsofficers.

o Hiring Process Brown ct overruled jury decision holdingcounty liable for hiring a cop with a criminal record whothen caused injuries to a woman after a high speed chase.Ct said, a finding of culpability simply cannot depend onthe mere probability that any officer inadequately screenedwill inflict constitutional injury. Rather, it must depend ona finding that this officer was highly likely to inflict theparticular injury suffered by the plaintiff. The connectionb/w the background of the applicant and the specificviolation must be strong.

Custom : municipal govts can be sued for their customs that causeconstitutional violations even though such a custom has notreceived formal approval from the official legislative body.

o Liability results not from the creation of the custom, butfrom its tolerance or acquiescence in it.

o Remedies :Monetary Damages : must plead compensatory damages in order to bring1983 action.Nominal Damages : can recover only nominal damages; under Atty FeesRecovery Act, can recover nominal + attys fees.Punitive Damages : allowed against individuals; NOT againstmunicipalitiesEquitable Remedies : very difficult to procure an equitable remedy in a1983 action.

Lyons v. City of LA police chokehold case; wasnt able to getinjunctive relief b/c couldnt prove that he would be subject to thesame conduct again in the future.

Attys Fees Recovery Act allows in a 1983 suit to recover their attysfees if brings a successful 1983 action. (can recover from municipalitiesand individuals)


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o Immunities : immunities are granted to government officials b/c they need to havesome freedom, latitude in making discretionary decisions.

Absolute Immunities : cannot be sued while engaging in official duties Federal Judges : while performing judicial function President : while performing executive functions Legislators : for those performing a legislative function absolute

immunityo outside absolute when giving interviews to the press, at best

would be qualified.o hiring/firing of personnel up in the air in circuitso not clear who are legislators -

Prosecutors absolute while prosecuting the caseo not absolute during investigative stage

Police Officers only absolute while testifying while witnesseso EX: fraudulent statement written by police officer on

affidavit, lower courts are split on whether this is absoluteimmunity; could charge w/ perjury if lies under oath, no1983

Qualified Immunities : other govt officials, or above officials actingoutside absolute immunity are generally given qualified immunity.

Good Faith : OBJECTIVE STANDARD - have to have areasonable basis for believing that what you were doing waslawful. (not violation of constitutionally or congressionallycreated rights)

Good Faith Defense : those actors not working under an immunity canraise a good faith defense. (similar to qualified immunity standard)

IMMEDIATELY APPEALABLE : if an immunity is rejected by thecourt, the issue is immediately appealable.

11 th Amendment11 th Amd provides that the judicial power of the United States shall not be construed to extendto any suit in law or equity, commenced or prosecuted against one of the United States byCitizens of another State, or by Citizens or subjects of any foreign state.

- Competing views of the 11 th Amdo Current view: the 11

th

Amd reflects a broad constitutional principle of sovereignimmunity that protects states from virtually all suits in federal court. PA v UnionGas Co.

o Diversity Jurisdiction View: 11 th Amd bars only suits founded solely on diversityjurisdiction.

Under this view, the 11 th would not bar suits against states based onfederal question jurisdiction; thus, all claims of state violations of the USConstitution or federal laws could be heard in federal courts.


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View is inconsistent with Hans v LA , which was not a diversity suit;justices espousing this view would overrule Hans as incorrectly held.

o Old View: 1980s if federal jurisdiction is based on the existence of a federalquestion or some other clause of art III, however, the 11 th Amd has no relevance.

- Broad definition of State : basic principle is that if a money judgment would be paid bythe state treasury; the action is barred by the 11 th.o Agencies of State Govt : part of the state for 11 th purposes (dept of health, etc)

- State Officials : generally, suits against state officers are not barred by the 11 th Amd.o Applications of General Rule :

Injunctive Relief : 11 th does not preclude suits against state officers for injunctive relief, even when the remedy will enjoin the implementation of an official state policy.

Ex Parte Young held that officers acting in violation of theConstitution cannot claim to be the state for purposes of the 11 th

Amd., and are in fact stripped of all state authority. Home Telephone & Telegraph v LA held that an officer is stripped

of state authority solely for purposes of 11 th Amd analysis, a resultthat does not affect the determination of state action under the 14 th

Amd.Prospective Relief : 11 th does not prohibit a federal court from givinginjunctive relief against a state officer even though compliance with theinjunction will cost the state a great deal of money in the future.

11 th Amd does not forbid a federal court from issuing aninjunction, even when compliance will cause the state to expendsubstantial amounts of money.

Graham v Richardson SC held that AZ and PA officials wereprohibited from denying welfare benefits to otherwise qualifiedrecipients who were aliens, regardless of the large sums of moneythe states would have to pay to comply.

Milliken v Bradley SC upheld a school desegregation order requiring the expenditure of school funds for education aspects of adesegregation plan including several remedial and compensatorybased programs. (commentators argue this is retroactive, or atleast shows no distinction b/w pro/retro relief)

o Exceptions :Suits for Money Damages Paid by State Treasury : are barred, even if theofficer is named as the defendant.Federal Pendent Jurisdiction Claims : 11 th prohibits federal court pendentjurisdiction over state law claims against state officers.Retroactive Relief : 11 th prevents a federal court from awarding retroactiverelief (damages to compensate past injury) when those damages will bepaid by the state treasury.

Edelman v Jordan ct refused to allow an injunction orderingpayment of previously owed sums to welfare beneficiaries.


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- Denial of 11 th Amd Immunity : IS IMMEDIATELY APPEALABLE

Suits Against States Barred by the 11 th Amd - Suits by Out-of-State Citizens : Facially the 11 th precludes only suits against states by out-

of-state citizens in federal court

- Broad Construction by Courts o Suits by In-State Citizens : 11 th bars suits by in-state citizens Hans v. LAo Suits in Admiralty : against the stateso Suits by Foreign Nations :o Suits by Indian Tribes :o 11 th precludes damage suits against state officers for official conduct, Ex Parte

Young officer who violates federal law is stripped of state authority andtherefore subject to injunctive relief action in individual capacity

o 11 th allows injunctive actions against state officers for official conduct; Edelmanv. Jordan

o Congress has a limited power to abrogate the states 11 th amd immunity Seminole

Tribe v. FL- Consent to be Sued Required : state govts cannot be sued in state court w/out their

consent. Alden v Maineo Must be Express Consent : for state to be sued in federal court.

Suits Permitted Against States- US Govt Against State : 11 th does not bar suits against states by US govt- Another State Against State : 11 th does not bar suits against a state by another state

o State Must Sue to Protect Own Interests : state cannot sue on behalf of its citizensinterests.

- Appellate Jurisdiction : 11 th does not prevent the US SC from hearing claims against astate as part of its appellate jurisdiction.

o 11 th Only Bars Suits : commenced or prosecuted in federal court, not a limitationon appellate jurisdiction

- Municipalities/Political Subdivisions of a State : 11 th does not bar suits againstmunicipalities or political subdivisions of a state.

o Substantial State Involvement : 11 th Amd immunity does NOT extend to local govtwhen there is so much state involvement in the municipalities actions that therelief, in essence, runs against the state. Pennhurst State School Hospital vHalderman

o State Pays Judgment : 11 th Amd prevents suits against if a money judgment has tobe paid directly out of the state treasury.

Indemnification Irrelevant : if a suit is against the state, then the 11 th Amdbars the suit even if there is no risk of actual state financial responsibility.Regents of University of California v Doe

o State Agencies : part of the state for purposes of 11 th Amd; cannot sue.

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