FEDERAL COURTS

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					FEDERAL COURTS
Reading and Class Notes

state and federal courts have concurrent jurisdiction over all issues, except where Congress
expressly gives federal courts exclusive jurisdiction.

Judiciary Act of 1789
       -created lower federal courts
       -defined federal jurisdiction
               -courts can hear a case only if there is both constitutional and statutory authority
               to hear it

       -NB: federal question jurisdiction not created until 1875

Judicial review:
        -different from most countries b/c resolves public as well as private disputes

       -Article III: creates an unaccountable and undemocratic institution, yet it retains respect
       from society at large. Why has it been able to maintain this status?
               1. federal courts have very limited power/jurisdiction
               2. have developed rules of self-restraint which helps maintain legitimacy
               3. appellate review requires all judges to justify their decisions

       -judiciary's power is tremendous but is governed by various rules and doctrines (the
       whole point of this class)

       -The Constitution is the key to judicial review doctrine. It has three purposes:
             1. structural: relationships between state and federal courts; federalism
             2. regulatory: source of rules and commands (i.e., constitutional rights)
                      -the constitutional rights hold the power of the judiciary (and the rest of
                      the government) at bay
             3. judicial review itself: enforce/interpret laws and the Constitution; also serves
             as a check on the powers of the other two govt branches

Article III
       -federal courts created to implement the power of the federal government
               -why create the federal judicial system?
                       1. uniformity
                       2. can't expect states to make decisions against state interests
       -assures independence of federal judiciary by:
               -giving judges life tenure (does this make federal judges uniquely situated to rule
               on constitutional rights)
               -no decrease in salary while in office
       -gives federal judiciary the power to rule on 9 cases and controversies (i.e., subject matter
       jurisdiction):
               -federal question:



                                                                                                      1
                            1. Arising under the Constitution
                            2. US = party
                            3. Affecting ambassadors, etc…
                            4. Admiralty, maritime
                            5. State and foreign states, etc…
               -interstate umpire
                            6. 2 States
                            7. State and citizen of another state
                            8. Citizens of different states (diversity jurisdiction)
                            9. claims to land in other states

       -case and controversy requirement (justiciability) shifts depending on who is on the US
       Supreme Court at any given time
               -justiciability requirement puts a limit on federal power
               -these 9 are the only cases the court can hear; if not in one of these categories, the
               issue cannot be brought in federal court

       -Article III allocates power between US Supreme Court and the lower federal courts:
               -original vs. appellate jurisdiction

       -Prescribes that the trial of all crimes (except impeachment) shall be by jury and shall
       occur in the state where the crime was committed

       -defines treason and how it must be proved; no attainders for treason except against the
       person guilty of treason

For Tamayo, the key tension created by Article III is between the courts and Congress.


Federal judicial hierarchy:
District Courts (created by 18 usc 3231):
        1. How does a case get into federal court?
                -original jurisdiction
                -removal jurisdiction (opposite: mtn to remand)
Courts of Appeal (created by 28 usc 1291)
        1. jurisdiction of all final decisions from the district courts
        2. jurisdiction of appeals from admin agencies
        3. geographic circuits; DC circuit; Federal circuit ("subject matter jurisdiction" circuit)
Supreme Court (created by 28 usc 1251, 1253, 1254, 1257 and Article III)

General ideas re judges:
      -lawsuits canalize social disputes; available causes of action extremely broad
      -judges willing to make decisions based on info outside of "the law"

Goals for course;
       -analyze social role of the courts



                                                                                                      2
           -practical steps for dealing with judicial process


Marbury v. Madison and Article III (esp 1st 2 paragraphs of Section 2)
-key issue: who gets to say what the Constitution means?
-Tamayo's themes: established five important principles concerning the federal judiciary:
        1. established power of the federal courts to review the actions of the executive branch of
        government
        2. justiciability: political questions are not reviewable by the courts; also touches on
        separation of powers (i.e., not reviewable because decision committed to other branches
        of the government)
        3. Article III creates a ceiling on the US Supreme Court's original jurisdiction, but not the
        floor on it (i.e., Congress can decrease it):
                 -thus, federal courts are courts of limited jurisdiction1; federalism issue
        4. established the power of the federal courts to declare federal statutes unconstitutional.
        5. established US Supreme Court as the authoritative interpreter of the Constitution
        (emphatically the duty of the judicial department to say what the law is).

-reading of the case from Appendix C
       -courts cannot intervene where the act is purely within the discretion of the executive.
       However, where a legal right is infringed by the executive act, the injured party must be
       able to seek a remedy under the law (p. C-3)
       -the question becomes: whether mandamus can remedy the injury and whether the US
       Supreme Court can issue it (pp. c-3ff)
               -this is a plain case for mandamus because, once the commission has issued, it is a
               vested legal right taken out of the discretion of the executive
               -Judiciary Act of 1789 expressly permits the court to issue mandamus to the Sec
               of State, so unless the law in unconstitutional, the court may issue the writ
                        -in fact, the law is unconstitutional because the court only has appellate
                        jurisdiction of mandamus proceedings; therefore, it cannot grant any relief

                    -Holding: in a case before the US Supreme Court, the Court may refuse to give
                    effect to an act of Congress where, in the court's view, that act is repugnant to the
                    Constitution.

Framework for Litigation comes from the Constitution (I, §8; Amend X), and it does so with a
variety of things:
        1. personal jurisdiction
        2. subject matter jurisdiction
                -federal question
                -diversity

Art I, §8; Amend X: powers not enumerated in §8 are reserved to states by Amend X.
        -of course, Art III created diversity jurisdiction (see Erie)


1
    Tamayo says this is an important theme for the course


                                                                                                        3
CHOICE OF LAW IN THE FEDERAL SYSTEM
Rationales behind Erie:
       1. Equal Protection: not really valid, especially since it replaced state-federal forum
       shopping with state-state forum shopping
       2. Federalism2: at the time, it was true that Congress didn't have power to make laws re:
       torts, etc, but now it does, and so this rationale is almost meaningless
       3. Separation of Powers: true, but courts have always made law. However, the federal
       legislature had and has primacy, but not exclusivity, over federal courts for making law.
                -Erie is fundamentally a limit on a federal court's power to displace state law
                absent some relevant constitutional or statutory mandate

Erie v. Tompkins (1938) – YT – "fundamentally a limitation on federal courts' power to displace
state law, absent congressional or Constitutional mandate"
Erie argues that Pennsylvania law must be applied because of §34 of the Judiciary Act of 1789
which seems to require local state law to be the rule of decision
        -Swift v. Tyson had held that the language in §34 only referred to positive law (i.e.,
        statutes), not unwritten common law, and therefore without a statute, federal courts could
        impose federal common law.
                -the Swift decision based on the idea of "natural law"; federal judges could go an
                find the correct common law. Also comes from desire to create uniformity across
                the nation for disputes heard in federal court, and a desire to create a model for
                states to follow.
                -problems with Swift:
                         1. forum shopping
                         2. there actually could be the same law throughout the nation

So, can Erie be reconciled with the argument that the case stands for a federalism/separation of
powers limitation on the capacity of federal courts to make law?

           -source of Erie analysis comes from Article III power of Congress to create courts and
           then 28 USC 1652 (i.e., the "rules of decision" statute); the question is what does "laws of
           the several states" mean? Swift answer deemed incorrect by Erie.

RULE: in diversity, federal courts must apply both statute and common law that would be
applied by the state in which they sit [i.e., choice of law provisions].
       [NB: federal common law that only applies to specific federal questions was NOT
       destroyed by Erie.]
       -Erie: fundamentally a limit on the power of federal courts

           1. "conflict of laws" – laws that decide which law governs where parties are subject to
           jurisdiction of two different states
           2. "choice of law" – principles used in the conflict of laws scenario to determine the
           applicable law



2
    Tmayo calls these the two themes that run through the course: federalism and sep of powers


                                                                                                     4
NB: even after Erie, it is only the rules of decision and not the rules of procedure to which the
federal courts must defer, i.e., the FRCP controls all proceedings in federal court.

What happens when there is no statute and no state supreme court case on point?3
      -the federal court should do its best to predict what the state supreme court would say
      after giving "proper regard" to relevant rulings of other courts of the state, including
      predicting how state Supreme Court would rule if it heard the case today. See
      Commissioner v. Estate of Bosch (1967); p. 22.4
              -the prediction depends on what the federal judge's research uncovers (e.g., if
              appellate court thinks supreme court would rule in a way opposite to current
              precedent, then the federal judge can hold opposite the state supreme court)
              -NB: federal judges don't like to overrule a state supreme court (this is the
              federalism tension)
      -how can federal courts get around this problem?
              1. decline jurisdiction: not very helpful
              2. abstention: rarely used
              3. certified questions: permitted in a majority of states

Erie in the real world:
        -since Erie created vertical integration in the application of the law, why should we care
        how it is applied since we will get the same law no matter what?
                -if we are in federal court and there is ambiguous state law, we might want to be
                in federal court because we can move the law in a direction more favorable to
                your client

pp. 32-57
on the Power of State Courts to Hear Federal Questions
Rule: -state courts may assume subject matter jurisdiction over a federal cause of action
              1. absent provision (explicit/implicit) by Congress to the contrary5; OR
              2. disabling incompatibility between the federal claim and state-court adjudication

         -analysis begins with presumption that state courts enjoy concurrent jurisdiction.
         Presumption is rebutted if:
                      i. rebutted by express statutory directive
                     ii. unmistakable implication from legislative history
                    iii. clear incompatibility between state jurisdiction and fed interests

DUTY of state courts to hear federal questions:
Howlett v. Rose (when are state courts required to hear federal claims?)
-This was a federal §1983 action brought in state court and dismissed based on the state law
defense of sovereign immunity, which would not have been available in federal court.



3
  Tamayo emphasized this issue
4
  formerly, Fidelity Union Trust said to defer even to state trial courts, if that is the only decision on point.
5
  b/k, maritime, etc


                                                                                                                    5
        -while a STATE may assert 11th amend and avoid a §1983 lawsuit, extension to
        municipalities, counties, and school districts is worrying to the court b/c it sounds like
        Florida is "evading" federal law
-the Supremacy Clause makes every law passed by the Congress the supreme law of the land and
thus the law of every state
        -therefore, a state CANNOT refuse to recognize the superior authority of federal law
        (including removal of defense) simply because it is against a state-law based policy or for
        any reason

       II.      "Howlett" - Reasoning: Supremacy Clause says that fed law is the "law of the land".
                Therefore, states have to uphold it too. Presumption that states can't discriminate
                against federal claims. A court may be able to refuse to hear a case only if:
                a. they have a "valid excuse". but it is unclear what would be valid. (An excuse
                   incompatible w/ fed law cannot be valid.)
                         i. anything that violates federal law is NOT a valid excuse (cite: Supremacy
                            clause)
                b. In addition, states cannot discriminate against fed law claims6; where state would
                   accept similar state law claims, it cannot reject similar fed law claims. The use of
                   neutral State jurisdictional laws (ie: treat fed law the same as fed law) leading
                   to the refusal to hear federal claims in state courts are the only form of excuse that
                   the US Supreme Court has ever found to be valid:
                         i. e.g., neither party is a resident of the forum state;
                        ii. cause of action arose outside its territorial jurisdiction; and
                       iii. forum non conveniens

       III.     occasional duty of state courts to apply federal procedure in State Court
                a. State may generally use state procedural rules when dealing w/ fed claims, unless
                        i. fed law expressly specifies the procedures to be used on that claim7, or
                       ii. state procedure unduly burdens the fed rights
                b. "Johnson v. Fankell" - 1983 claim did not meet the 2 prong rule above. does not
                   burden rights, and it does not specify the procedure to be used for the specific
                   action sought.
                        i. ISSUE: is there a right to interlocutory appeal from a denial of qualified
                           immunity in a §1983 action brought in state court?
                       ii. No, because this right comes from a procedural rule only available in
                           FRCP. Since neither prong above met, state court can use state procedural
                           rules which did not permit interlocutory appeal
                      iii. the state rule is not outcome determinative because the loss at summary
                           judgment could turn into a win at trial; therefore, no undue burden on the
                           federal rights under §1983

US Supreme Court review of state court decisions
Functions of US Supreme Court:
       -functions to ensure the supremacy of federal law

6
    Tamayo says that this sentence is what is the important point of Howlett
7
    Tamayo says that this is getting more common in recent years


                                                                                                       6
       -exists to say what the law is (Marbury)
       -resolves disputes over the interpretation of federal law
       -interprets federal statutes
These functions reveal that:
       -the US Supreme Court can only decide questions of federal law
       -US Supreme Court has not authority to decide matters of state law
               -will only review if substantial federal question involved
       -US Supreme Court review is a scarce resource (it normally decides less than 100 cases
       per year)
               -so, how should US Supreme Court select the cases that it hears? now, it has
               great discretion in choosing its cases.
                       -first, court must have jurisdiction to hear the case. How do we decide
                       this: Art III, sec 2 gives US Supreme Court jurisdiction over all Cases
                       arising under laws of the United States (i.e., laws of all the states)


Martin v. Hunter's Lessee (1816)
-Constitution says that the judicial power of the US Supreme Court extends to "all Cases,"
meaning that the case (not the Court) gives jurisdiction
       -after all, the Framers envisioned that the state courts would take cognizance of cases
       arising out of Constitution and federal laws
       POLICY:
                -state prejudices or jealousies may lead to biased interpretation of federal law in
                favor of the states: ensure supremacy of federal law
                -permitting US Supreme Court review will help uniformity of decisions based on
                federal law

Murdock v. City of Memphis (1874) (the Erie of appellate review)
Limits to US Supreme Court review of state courts:
        1. only questions of federal law are open to US Supreme Court review; state court
        judgments are final on questions of state law.
                -however, state law claims intimately bound up with a federal question may be
                heard on appellate review
                -this case is the basis for the adequate and independent state grounds doctrine

Indiana ex rel Anderson v. Brand (1938) (when review of state law decision permissible)
-this case involved an issue under the Contracts Clause of the Constitution. Therefore, the US
Supreme Court says that it involves a federal question and can be heard on appellate review

Michigan v. Long (1983)
-federal courts cannot review a state court case where
         1. the decision is supported by a state law rationale
         2. that is independent of federal law; and
         3. is adequate to sustain the final result
-i.e., "adequate and independent state ground"




                                                                                                  7
       -this theory is based on the policy concern that the US Supreme Court has over the
       limitations of its own jurisdiction.
               -court doesn't want to issue advisory opinions

-federal courts have a duty to ascertain whether the non-federal ground independently and
adequately supports the judgment
        -Therefore, the following permits US Supreme Court review:
                -too much reliance on federal law
        -The following does NOT permit US Supreme Court review:
                -where state court says it is merely relying on federal opinions for guidance, but
                that they do not compel the state court result

DISSENT:
     -says that this decision creates the presumption that adequate state grounds are NOT
     independent unless it clearly appears otherwise
             -in effect, this creates a presumption that the US Supreme Court has jurisdiction
             to review state law cases
             -the presumption should be the opposite: that it doesn't have jurisdiction
             -the US Supreme Court should only hear cases where those seeking to vindicate
             federal rights have not been fairly heard (see p. 99)

Tamayo's take on Bush v. Gore:
     -congressional regulation shapes/determines electoral outcomes
     -exposed the dark secret of the electoral process: i.e., inaccuracies and mistakes
     -elections not normally scrutinized by the public (other than maybe complaints about
     long lines at the poll)
     -every single intervention of politicians or courts had the potential to be outcome
     determinative, that is why the stakes were so high. Should we have let the courts make
     these decisions? Or should we have the federal government resolve it between the
     political branches?
              -since what was at stake was the electoral process in Florida, shouldn't we just let
              the state governments (judiciary and legislative) resolve the issue?

       -in these circumstances, courts like to stay out of disputes like this because it makes the
       courts look like they have a cloaked agenda
       -what are the federal constitutional interests in the election process that would justify
       federal intervention in a state-run election?

       -criticisms of this decision:
                -elections within a state are a matter of local concern; the Florida legislature was
                perfectly capable of dealing with problems
                -Bush claimed EP violation for manual counting; but Bush still could have won
                the election; since EP violation only occurs after the fact (not in potential), then
                Bush lacked standing because he had no injury.
                        -Thus, the US Supreme Court in effect gave an advisory opinion




                                                                                                       8
Bush v. Gore (2000)
-per curiam finds violation of EP clause b/c no non-arbitrary standard for recount applied.
Therefore, rights of some voters infringed.
-REHNQUIST:
        -text of Constitution orders state Legislature to make election law; therefore anything
        added by the Florida US Supreme Court is unconstitutional.
                 -since this was an election of a US President, the US Supreme Court must make
                 sure that federal election law is complied with
                         -Bush argued that the manual recounts would lead to disparate results
                         which would violate EP
                 -the issue is, therefore, whether the Florida court infringed upon the authority of
                 the Florida legislature
                 -in other words, Rehnquist would add a separation of powers issue
-STEVENS (dissent):
        -the Constitution gives States the primary responsibility for determining the manner of
        selecting Presidential electors; therefore, we should give deference to State supreme
        courts interpreting those election provisions passed by legislatures
        -since the federal questions at issue in this case are not substantial, the court should let
        state courts decide the issue
        -the per curiam decision calls into question the integrity and impartiality of Florida's
        judges; this is not something that is permissible
-SOUTER (dissent):
        -all that Florida's court did was interpret ambiguous statutory language; this does not
        raise a claim under Article II of the Constitution.
-GINSBURG (dissent):
        -although this case has extraordinary importance, it rests on a simple principle: "federal
        courts defer to state high courts' interpretations of their state's own law"
-BREYER (dissent):

Power of the Federal Courts to Create Federal Law
Tamayo's Lecture
-Federal courts can make federal common law in some instances:
       -patents/copyrights
       -maritime law
       -international law
       -conflicts between states
-What is the source of this?
       28 usc 1331
       Article III, sec 2
       -none of these sections expressly permit creation of federal CL
       -ANSWER: developed out of necessity:
               -developing CL principles is inherent part of being a federal judge

-What is federal common law?




                                                                                                       9
         Def: refers to the development of legally binding federal law by federal courts in the
         absence of constitutional or statutory provisions
                -i.e., federal CL is gap-filler ("interstitial function")  see p. 126
                -i.e., creation of implied statutory right (a form of federal CL)

-When do courts need to use federal common law?
      -when needed to protect "uniquely federal interests"
      -when its use is necessary to effectuate the intent of congress

-Where does statutory interpretation end and judge-made law begin?
      -just where it does; impossible to define precisely because it depends on an observers
      POV of the judge's decisions

-Why should we let judges make new law rather than federalizing a state law?
      -state courts get to do it
      -concern for lack of uniformity
      -some statutes expressly state whether the federal court is permitted to use federal CL
      (e.g., rule 501 of FRE)  these cause no concern
      -preempting state law when you are not supposed to means that a federal court is under
      mining the values of federalism

US v. Little Lake Misere Land Co, (1973)
-this is a quiet title action; land acquired with caveat that Little Lake could retain mineral rights
for 10 years plus time during which drilling activity was continuous.
-by terms of contract, the rights of Little Lake expired; however, LL claimed mineral rights
pursuant to a statute passed after the US acquired the land.
ISSUE: may state law retroactively abrogate terms of written agreements made by the US when
it acquires land for public purposes explicitly authorized by Congress?
HELD: No, because
         -the state statute would abrogate the Congressional intent behind the land acquisitions
         based in the Migratory Bird Act; and the proprietary interest of the govt in that land is a
         "uniquely federal interest"
         -because the state law is hostile to the federal act, we must use federal common law, not
         state law to resolve the dispute

Notes:
         -historically, the US property transactions were governed by law of the state in which the
         property was situated
         -the break from this came with Clearfield Trust Co v. US (1943): federal proprietary
         interest case
                 -because the authority to issue WPA checks came from the Constitution and
                 statutes of the US, no state law could apply to disputes arising about the checks
                 where the US is a party to the dispute

         -In a dispute involving the US, the first step is to determine whether state or federal law
         applies.



                                                                                                   10
                     -if federal law governs, then the court must determine what that law should be. It
                     can do one of two things:
                             1. develop a rule of federal CL applicable uniformly throughout the
                             country; or
                             2. incorporate or borrow state law as the federal rule of decision (e.g.,
                             DeSylva, see p. 135: kinship law vis-à-vis federal Copyright Act should
                             be borrowed from state law because the state where those relationships
                             were created governs all other kinship relations)

Boyle v. United Technologies Corp (1988)
- litigation involving 2 private parties. D was a contractor for the U.S. Army. The court protected
the uniquely federal interests even though the govt was not a party.
-where interests are "uniquely federal," they are so committed by the Constitution and laws of
the US to federal control that state law is preempted and replaced where necessary by the federal
common law
         -this case has links to two areas the court has already found are uniquely federal:
                 1. obligations to and rights of the US under its contracts
                 2. civil liability of federal officials for actions taken in the course of their duty
         -the interest will only displace state law where state law creates a "significant conflict"
         with the federal policy

Implied Right of Action on Federal Statute
When can a federal court permit a private individual to bring action under a statute that does not
expressly give that right?

Cort v. Ash (1975) (pulls back from presumption favoring implied right of action)
Issue: does a criminal statute prohibiting corporate contributions/expenditures during
Presidential election campaigns create a private right of action for a shareholder against
corporate directors when those directors violate the statute?
HELD: Not in this case
    Cort: 4 part test to determine if a private right is appropriate
            1. Is the P one of the class for whose special benefit the statute was enacted?8
            2. Does legislative intent (implicit/explicit) show an intent to create or deny a private
            remedy?
            3. Is the proposed remedy consistent w/ the purpose of the law?
            4. Would it traditionally be a remedy for State law?

           -NB: provision of a criminal remedy does not of necessity preclude a civil remedy
           -protecting shareholders was a subsidiary interest in enacting the statute

Gebser v. Lago Vista Ind SD (1998)
-HELD: student has an implied right of action under Title IX for harassment by one of the
school's teachers IF a district employee with authority to take corrective measures has actual
notice of and is deliberately indifferent to the teacher's conduct


8
    me: this seems to be similar to zone of interests test


                                                                                                     11
-Title IX enacted to counter policies of discrimination
-Title IX has no legislative expression of the scope of available remedies (certainly says nothing
about damages, which is what Gebser wants in the lawsuit)
        -because the right of action under Title IX is judicially implied, the court has latitude to
        shape a sensible remedial scheme that best comports with the statute
        -Court holds that it would frustrate the purposes of Title IX to permit recovery of
        damages based on respondeat superior or constructive notice.
        -Title IX's contractual nature has implications for the court's construction of the scope of
        available remedies
                -Title IX requires notice to an appropriate person and an opportunity to rectify the
                violation, so we must at least have this for any implied action and damages
                therefrom

DISSENT:
     -Court is to presume that Congress authorized all appropriate remedies unless it expressly
     indicates otherwise

Rights Of Action to Enforce Any Constitutional Rights: Bivens and Chilicky
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971)
ISSUE: can Bivens recover damages under the 4th Amend?
       -Agents argue that P can obtain damages by bringing a tort suit under state law and the
       4th Amend would simply be a limit on Agents' affirmative defenses
               -in fact, Bivens in fact asserted a right to privacy, which is not specifically
               provided by the 4th Amend, but rather state law
HELD: Bivens can seek damages because
       -4th Amend is a fundamental right that provides a limitation on federal power
       -where federal rights have been invaded, the courts will adjust their remedies so as to
       grant the necessary relief

       -where legal rights have been invaded; and
       federal statute provides for a general right to sue for such invasion,
               -federal courts may use any available remedy to make good the wrong done

CONCUR (Harlan)
ISSUE: is compensatory relief "necessary" or "appropriate" to the vindication of the interest
asserted?
DISSENT (Burger)
-the remedy permitted is not provided for by Congress or by the Constitution. therefore, this
court cannot create it
-a remedy is needed, but it is beyond the power of the court to create it.
DISSENT (Black)
-will create new lawsuits leading to judicial collapse

Tamayo's Take:
      -no statute permits remedy against federal officers; 42 usc 1983 only permits relief
      against state officers



                                                                                                  12
-suits against federal officers for:
        1. injunctive relief permitted by US Supreme Court
                -also, APA permits suit against officer of a federal agency for injunction
        2. money damages lawsuits are controversial
                -not permitted prior to 1971 and Bivens

-what is US Supreme Court's rationale for granting an action for money damages based
on the 4th Amend? This seems like a big leap.
        -the 4th Amend separately from state law creates a right of privacy on its own
        -court is permitted to create appropriate remedy:
                -here, injunction or exclusion would be useless; it is money damages or
                nothing

-Dissents:
       -separation of powers problem: it is Congress, and not the court that should
       create this remedy

-4th Amendment generally:
       -the court's answer here turned on whether the 4th Amend supported an
       independent claim OR was merely an affirmative defense against a state law
       claim?
       -Court says 4th Amend acts as a limit on all federal power regardless of whether
       state law also limits those actions.
       -state law may protect things that the 4th Amend does not, and vice versa. I.e.,
       state law and the 4th Amend may be inconsistent, and so we have to allow claims
       under the 4th Amend.

-POLICY: central policy issue is whether the court exceeded its role in creating the
cause of action in Bivens for money damages. I.e., should it be Congress that creates the
action, or may the court permissibly create the remedy? In other words, is Bivens a
violation of the separation of powers?
        -but isn’t the judicial role to provide remedies for rights where there is no
        effective remedy currently available?
        -moreover, as Harlan says, isn't protecting federal rights very important and it
        should not be left to the vagaries of state law

       -Constitutional Interpretation OR Federal Common Law: which is the Bivens
       right of action?
               -if the Constitution requires the existence of money damages suits against
               federal officers, then Congress CANNOT do away with Bivens actions;
               -if Bivens is merely federal common law (where the court is acting
               intersticially), the Congress can eliminate Bivens suits tomorrow if it
               wanted to.

       -Court has only denied Bivens suits where:
              -alternative remedy that is equally effective (Schweiker); or



                                                                                             13
                      -where there are special factors justifying the absence of Bivens litigation

Schweiker v. Chilicky (1988)
ISSUE: whether cause of action against govt officials in their individual capacities for money
damages (i.e., a Bivens action) is available for the improper denial of SS benefits in violation of
Due Process.
HELD: No, because Congress has an elaborate remedial scheme, and such a remedy is not
included therein.
       -the failure to include the damages remedy essentially shows congressional intent to
       exclude the remedy
       -where special factors counsel judicial hesitation in the absence of affirmative action by
       Congress, courts should assume that a Bivens remedy excluded
                -where there are meaningful remedies provided by Congress, this tends to exclude
                creation of a new private right of action:
                        -such judicial action would "be plainly inconsistent with Congress'
                        authority" in a given field

DISSENT:
-the remedy provided by Congress for the sort of deprivation alleged by plaintiffs is "inadequate"
        -claimants cannot even raise constitutional challenges AND can never recover
        consequential damages for incorrect deprivation of disability benefits
-Congress' failure to provide these remedies is not one of "the inevitable compromises" that
occur when creating a complex legislative scheme, but rather
        Congress jumped in to rescue a crumbling bureaucracy and did not carefully consider all
        areas of that bureaucracy
        -mere awareness of prior injustices does not mean that Congress actually addressed them
        and therefore is not a special factor counseling against judicial recognition of remedy

Tamayo's Take:
      -what were the special factors counseling against judicial creation of a Bivens right?
             -Congressional inaction to grant a private right of action in the case of an
             elaborate remedial scheme indicates that Congress didn't want to
             -But, DISSENT says:
                     -mere awareness of prior injustices does not mean that Congress actually
                     addressed them and therefore is not a special factor counseling against
                     judicial recognition of remedy
      -was there an alternative, meaningful remedy that would be just as good?
             -Yes, Congress created several levels of appellate review of a termination of
             benefits decision

       - Schweiker blends the two exceptions where Bivens suits are not allowed. If you look at
       these two cases, it seems clear that Bivens has a more liberal approach:
               -the Bivens court claimed that a court had inherent power to assure remedies for
               violations of federal rights
               -the Schweiker court retreats from this vast power and becomes much more
               cautious of extending Bivens remedies into new contexts



                                                                                                14
               -also, note that in Schweiker, the right asserted was based on a federal statute,
               rather than Constitution and so maybe not as important to protect

-just because Congress has authority over an area does not mean that the court is precluded from
creating a judicial remedy (p. 213)
-morevoer, even if the Court permits the action, it is still difficult for a plaintiff to win because
the plaintiff must show:
        -deliberate abuse of power, not mere negligence; and
        -overcome issues of qualified immunity

Customary Intl Law
Filartiga v. Pena-Irala (1980)
-Congress gave federal district courts original jurisdiction where an alien sues for a tort only
committed in violation of the law of nations
-HELD: deliberate torture perpetrated under color of official authority violates the law of
nations.
        -therefore, whenever a torturer is found and served with process by an alien within US
        borders, a federal court has jurisdiction under 28 USC 1350 because this presents a
        federal question under 28 USC 1331.

-case brought as a wrongful death action against Pena-Irala (the Inspector General of Police) for
causing death of Filartiga's son through torture after kidnapping

-a court assesses what is international law by:
        1. consulting works of jurists writing professedly on international law
        2. examining the general usage and practice of nations
        3. examining judicial decisions recognizing and enforcing that law
-the court must assess the state of intl law TODAY, not as it was when the Constitution was
written (as shown in Habana) [changes in Sosa]

-Article III, §2 permissibly gives power over this case because it grants to the courts power over
cases grounded on the common law of the US. Intl law is deemed part of the CL of the US, so
no Article III problem.

Tamayo's Take:
What is the law of nations/customary international law?
       -law agreed upon by nations
       -def from Restatement: results from a general and consistent practice that nations follow
       from a sense of legal obligation
               -not necessarily law the US has agreed to enforce
               -influenced by int'l agreements/declarations (not all of which are ratified by US;
               but US often follows out of sense of comity)

       -RULE: customary international law IS federal common law
            -implications:
                1. supports federal subject matter jurisdiction in federal courts



                                                                                                   15
                    2. CIL preempts inconsistent state law because federal common law
                       preempts such law under the Supremacy Clause

         -a court assesses what is international law by:
                 1. consulting works of jurists writing professedly on international law
                 2. examining the general usage and practice of nations
                 3. examining judicial decisions recognizing and enforcing that law
                 -the court must assess the state of intl law TODAY, not as it was when the
                 Constitution was written (as shown in Habana) [changes in Sosa]
                         -Thus, this decision is very broad because it permits court to create causes
                         of action [if §1350 deemed merely a jurisdictional statute, then court
                         cannot create a cause of action, only Congress can do that  cf. Sosa]

         -Article III, §2 permissibly gives power over this case because it grants to the courts
         power over cases grounded on the common law of the US. Intl law is deemed part of the
         CL of the US, so no Article III problem.
                 -thus, Alien Tort Statute (§1350) is authorized by Article III

Notes:
         1. doctrine of "persistent objector": a state that takes active steps to resist a developing
         international norm will not be subject to that norm in a US court.
                 -however, mere non-acquiesence will not suffice
         2. the proposition that customary international law is federal common law seems well
         accepted, but it may not be a stable proposition in the future because:
                 i) since Erie did away with the federal common law in diversity cases, does
                 customary international law survive in federal courts in those circumstances?
                 ii) while most courts agree that a federal court may apply customary international
                 law, it is rare that a court will allow it to strike down an otherwise valid state law

Sosa v. Alvarez-Machain (2004)
ISSUES:         can DEA abduction of person from Mexico give rise to a tort against USA?
                or, can he recover under Alien Tort Statute?
-what matters for us is whether ATS permits suit against a DEA agent
        -court says that the ATS was created to give courts jurisdiction of claims, but only those
        brought under law of nations and recognized at common law in 1789 (when the statute
        was enacted). ATS is a jurisdictional statute.
                -in short, the ATS is to furnish jurisdiction for a relatively modest set of actions
                alleging violations of the law of nations with the potential for personal liability
                available in 1789:
                        -i.e., violation of safe conducts, infringement on the rights of
                        ambassadors, and piracy
-The Law of Nations is:
        1. general norms governing the behavior of national states with each other
        2. judge-made law regulating the conduct of individuals situated outside domestic
        boundaries




                                                                                                     16
SCALIA:
     -federal courts should not retain any power to create causes of action based on
     enforcement of international-law-based norms
     -the court neglects the lesson of Erie, that grants of jurisdiction alone are NOT
     themselves grants of law-making authority

Tamayo's Take:
      -Majority: it is a jurisdictional statute, but why would Congress enact such a statute and
      not intend it to support some causes of action: safe conducts, rights of ambassadors, and
      piracy. So the court can create causes of action based on these general areas.
              -Thus, district courts should only hear ATS claims that fit under these three topics


                          Congressional Control of the Federal Courts
Constitution treats the lower federal courts and the US Supreme Court differently:
       -Supreme Court: (Art III)
               -has original jurisdiction as stated in the Constitution, and appellate jurisdiction
               over all other cases and controversies: Art III, §2, para 2.
               -Congress may limit the amount of appellate jurisdiction, but not original

       -Lower Federal courts: (Art III; Art I, §8, cl. 9)
             -Art III, §1: jurisdiction "shall be vested" does not give Congress options to vest it
             anywhere else
             -main issue: what is the scope of lower court jurisdiction?

       -NB: Congress can limit STATE court jurisdiction b/c 28 USC 1338 gives federal courts
       EXCLUSIVE jurisdiction over patents and copyrights

Tamayo's Take:
      -why would Congress want to take away jurisdiction?
             -tends to be when there is hot button political issue: e.g., school prayer cases;
             abortion access cases; Miranda cases re: criminal confessions;
      -proponents of jurisdiction stripping:
             -think state courts will be more sympathetic to their view of the law

       -WHEN can Congress strip jurisdiction?
            -Ex Parte McCardle:

       -Can Congress curtail STATE courts?
             -state courts normally are courts of general jurisdiction
             -Yes, e.g., copyrights and patents: 28 USC 1338; removal statute: 28 USC 1441,
             and 28 USC 1446e says states can't continue to hear the case unless it is remanded


Various Notes:




                                                                                                      17
         -pp. 237-38: court can't be required to render a result that is inconsistent with the
         Constitution (see Marbury)
                 -but, could Congress take away the power of court to create its own remedies?
         -p. 239: a majority of scholars believe that Congress has the ability to limit US Supreme
         Court jurisdiction over any category of cases, constitional or otherwise
                 -this would mean that the STATE courts would become the ultimate guarantors of
                 constitutional protections if Congress forbid US Supreme Court from hearing
                 various cases

         -p. 241: of course, an argument against stripping US Supreme Court of some jurisdiction
         is that congress needs the courts to enforce its various legislative programs:
                  1. uniformity would suffer because
                  2. state courts would be arbiters of Congressional intent


Ex parte McCardle (1868)
HELD: the repeal of an act giving the US Supreme Court jurisdiction divests the court of that
jurisdiction: in this case, appellate jurisdiction over habeas corpus claims for persons in STATE
custody
        -McCardle sought release by bringing a habeas petition in district court under the
        Military Reconstruction Act
        -After case argued to US Supreme Court but before decision, Congress repealed the
        portion of the MRA granting US Supreme Court jurisdiction over habeas appeals

-although appellate jurisdiction of the US Supreme Court is conferred by the Constitution, it is
only conferred "with such exceptions and under such regulations as Congress shall make"
       -when an act of legislature is repealed, it is to be considered as if it never existed (except
       to transactions already closed)

Notes:
         -if we read McCardle broadly, then it gives Congress huge power
         -if we read it narrowly, then we look to context and see that political climate was very hot
         and court did not want to hear this case. Therefore, after repeal, it took the easy way out
         and dismissed for want of jurisdiction

         Tamayo:
               -McCardle example of court being influenced by political dispute; by Congress
               removing jurisdiction, it removed the risk of US Supreme Court finding entire
               MSA unconstitutional.
               -McCardle still cited as support for Congress' limiting of US Supreme Court's
               jurisdiction.
                       -however, we can distinguish McCardle from modern day attempts to
                       limit jurisdiction because:
                           1. after McCardle, the court still had ability to hear appellate habeas
                               claims under its power to issue its own original writs.




                                                                                                   18
                                   a. therefore, the holding in this case if very narrow (see top of
                                      p.245)
                                   b. NB: one might ignore the paragraph on p. 245 and read it
                                      broadly and give Congress great latitude and supports
                                      proposition that US Supreme Court must be grounded in
                                      specific statutory authorization

Sheldon v Sill ( First Judiciary act contained assignee clause, prohibiting collusive creation of
diversity jurisdiction. Congress, in creating the lower Fed courts, also has the power to limit
their jurisdiction. Lower fed courts have no jurisdiction except by statute.)
        -since the Constitution did not expressly create the lower courts, but rather gave Congress
        permission to create them in Art I, §8, cl. 9 and Art III, §1, Congress can do whatever it
        wants

       Tamayo:
          1) Does Congress have power to determine/limit jurisdiction of lower federal courts?
                a. YES: since Congress has power to create the courts, it must have the
                    power to define/limit its jurisdiction
                b. NO: due process concerns; fairness concerns because some state courts
                    might not adequately protect federal Constitutional rights (e.g., would
                    Alabama courts protect freedom of religion if you are not Xtian?)
                        i. but, US Supreme Court could still hear the case, but it is so rare for
                           them to take cert, this is not really an available remedy
          2) Sheldon
                a. holding makes sense because spirit of diversity jurisdiction is to give
                    people from 2 different states a hearing in an impartial, unbiased forum
                        i. to permit collusive creation of diversity would frustrate the policy
                           behind diversity
                b. yet, Article III does not expressly place any limit on diversity jurisdiction
                        i. Constitution defines the limits of judicial power, but it doesn't say
                           how much of it shall be given to lower courts
                       ii. therefore, the only thing congress can't do it give jurisdiction
                           beyond what is enumerated in Art III, §2
                      iii. Are there any limits to stripping jurisdiction?
                               1. see Webster

Webster v Doe ( CIA director fired gay employee because he was a security threat. Statute gave
Director discretion to do this. Congress can preclude judicial review of statutory claims,
NOT Constitutional claims! )
       -i.e., firing was permissible under 1947 statute giving Director discretion, but it still may
       have been impermissible under the Constitution
       -on remand, the district court was to review Doe's constitutional claims.

       DISSENT (O-Conner) – separation of powers




                                                                                                  19
            -in this context, where we have national security at issue (and thus a political
            question), the court should permit Congress to preclude all remedies; the Court
            should stay out of this.
            -in other situations, review of constitutional claims might be proper
       DISSENT (Scalia)
            -political question doctrine should preclude review of any constitutional claim in
            this instance
            -in other words, not all constitutional claims require a judicial remedy

       Tamayo:
          1) Court requires heightened showing by Congress that it expressly preclude review
             of colorable Constitutional claims; the Court will not read such a prohibition into
             a vague statute
          2) Scalia: this is not a complete cut off of review, but rather only preclusion of
             review from the district courts
                 a. moreover, this is a political question and should not be subject to judicial
                     review: national security issue

Notes: (254-62)
Theories on the limits of congressional power to make exceptions to jurisdiction of US Supreme
Court and/or its power over jurisdiction of federal courts
       -Story: the entire judicial power of the US should at any given time be vested in some
       court or another
       -Amar: only those issues with the word "all" in Art III must be continuously vested; the
       rest can be excluded
       -Essential Functions Thesis: the essential functions of the US Supreme Court can not be
       curtailed by congress. Those functions enumerated on p. 256.
               -some commentators want to use this thesis to limit Congress' power over lower
               federal courts
       -Independent Unconstitutionality: power of Congress to exclude cases from jurisdiction is
       limited by any express prohibitions in Constitution (e.g., can't exclude a disfavored race
       from access to courts)
       -Due Process: Access to Courts: but, if you have access to a state court, does it matter if
       access to federal courts is cut off? So long as a state court will hear the matter, Congress
       can cut of federal jurisdiction.
       -Discrimination Against Constitutional Claims: Congress may not discriminate against
       constitutional claims when it enacts jurisdictional legislation
       -Institutional characteristics of state and federal courts: state courts are less likely to be
       receptive to vigourous enforcement of federal constitutional doctrine, and so federal
       courts must be open to hear such cases

B. POWER TO EXPAND JURISDICTION

Marbury v Madison = Art. III is the CEILING of Congress’ power!
     - Congress cannot ENLARGE Constitutional jurisdiction




                                                                                                  20
        - Congress cannot OVERRIDE Constitutional limits9, such as standing requirements. It
        is did, this would expand court jurisdiction (e.g., without an injury, you can go into court
        and get an advisory opinion)
                 - can only eliminate prudential aspects (i.e., not coming from the Constitution),
                 such as federal question jurisdiction.

Congress enacted the Federal Question statute in 1875.
      28 USC §1331 – Federal Question jurisdiction
              - no amount in controversy provision until the 1980s!!

        Tamayo: why would Congress enact a statute that was almost exactly like the language in
        Art III, §2? Well, Art III defines judicial power, while §1331 applies it directly to the
        district courts.
                 -US Supreme Court has interpreted Art III more expansively than the statutory
                 provision
                 -Key: what does "arising under" in §1331 mean?
                         -i.e., what if we have a state law cause of action, but a tiny part involves
                         federal law? does this permit a federal court to take jurisdiction using
                         §1331?

Osborn v US (The original Federal Question case! When a federal question is a potential
original ingredient to a question to which the judicial power of the union is extended by the
Constitution, Federal courts have jurisdiction. “Arising under” is broadly stated!)
       -§1331 did not exist at this time, so this case interprets Art III only
       -If An act of Congress continues to regulate a thing/person, it is a Federal Question!
               - Banks are continuously regulated///nationalized citizens are not! (just once)

        Policy: Congress created lower federal court jurisdiction to protect Federal interests!
        - Guard against state court hostilities!

        Tamayo:
        -Questions for the court here:
               -did Congress' creation of Bank give jurisdiction to federal courts to hear actions
               involving bank?
                        -yes, the statute says so
               -if yes, did Congress have that power under the Constitution?
                        -yes, so long as a question to which judicial power is extended by the
                        Constitution is an ingredient of the original cause of action
                                -in other words, federal jurisdiction extends to a case where the
                                final decision might turn on an issue of federal law10
                        -p. 264: even if P chooses to leave the federal question dormant, it can be
                        heard by a federal court


9
 Tamayo: this is the stuff in article III
10
  Why would the court do this? According to some scholars, this is the creation of the concept of Protective
Jurisdiction.


                                                                                                               21
                         -in this case, the US Bank is a creature of federal law and therefore any
                         suit involving it will be a federal question
                                  -DISSENT said that this scope was far too broad
        -Is this a correct decision under the Constitution, or a sacrifice of the Constitution for
        judicial expediency?


Protective jurisdiction arguments:
Pro: provides for flexible, malleable protection to guard against non-neutral state courts, or to
provide federal procedural advantages (jdxn over state-law claims of non-diverse parties who
need the protection of a federal forum)

Con: strict constructionists say Art III exhausts Congress’ capability to protect litigants who do
not assert federal rights!
        -i.e., Art III creates forms of party-based jurisdiction (e.g., diversity jurisdiction);
        Congress cannot go beyond this
        -Protective Jurisdiction is also nebulous and seems to be without end


Textile Workers v Lincoln Mills11 (taft-hartley act. Can Congress confer Fed jurisdiction without
Fed Question or Diversity where the issues turned on questions of state law?? YES! Majority:
fed jurisdiction is appropriate because creation of a federal common law of labor contracts
is desirable to help create remedies envisioned by LMRA §301.

Dissent: 1) expertise is not needed for a state-law issue, and 2) protective jurisdiction is not the
“articulated policy” of Congress!
        -Tamayo:
        -greater includes the lesser theory: if congress can legislate in some area, then surely it
        can give the federal courts the power to apply state law
                 -dissent says this is wrong because the supposed need for expertise of federal
                 courts is unnecessary when only state law is at issue
        -articulated and active federal policy theory: if Congress has a prearticulated policy in an
        area, then it finds a way to allow federal courts to adjudicate state law based claims
        related to the program
                 -dissent says Congress does not have this as a policy
        -this is similar to b/k law where the cause of action is vested in federal courts, but much
        of the law underlying is based on state law; federal courts only interpret state common
        law where necessary

Verlinden v Central Bank (Foreign Sovereign Immunities Act12 §1330. Dutch corp sued in US
DC against Nigerian co. for anticipatory breach of K (i.e., a non-federal cause of action).



11
  This is the only case to expressly discuss protective jurisdiction
12
  passed to regularize law of sovereign immunity because it had been decided on an ad hoc basis upon request by
courts to State Department to tell them if they should grant sovereign immunity to particular defendants


                                                                                                                  22
Held: Both the "arising under" clause and the diversity clause permit courts to have jurisdiction
as envisioned by FSIA §1330. FSIA raises substantive federal question at the outset: i.e., do
the defendant's have sovereign immunity?

         Tamayo:
         -Court reaffirmed decision in Osborne as creating a broad conception of "arising under"
         jurisdiction;
         -cause of action was not based on federal law; §1330 is merely a jurisdictional statute
         -however, Art III permits jurisdiction because whether a party has sovereign immunity is
         a federal question.
                 -because if we put it in state court, we'll have 50 different interps and we'll have a
                 diplomatic mess
                 - the decision in Verlinden is so broad it seems that Congress could authorize
                 jurisdiction for anything  but this is not true b/c Congress is interested in
                 foreign states in a way it will not be with other issues
                 -KEY: so long as statute creates jurisdiction AND does something else that is a
                 federal interest

Mesa v California ( California issued criminal complaints against 2 mail truck drivers involved
in accidents. Δs removed under §1442(a)(1) (removal for fed officers acting under color of
office).
         Held: a purely jurisdictional federal statutes does not independently support Art III
         “arising under” jurisdiction!13
         -Δs must allege a FEDERAL DEFENSE and then removal to federal court would be
         proper because the federal court would have jurisdiction. This is because the assertion of
         a federal defense would create a federal question for the court to decide.

         Tamayo:
         -removal jurisdiction is not expressly mentioned in Article III
         -this is a more narrow reading of Osborne

Creation of Non-Article III Courts (i.e., "legislative courts")
V. LEGISLATIVE COURTS INTERFERING WITH FED. JURISDICTION

Today, we have FIVE different Article III courts:
1) Federal district courts
2) Federal courts of appeals (hear appeals from DCs and fed. admin agencies)
3) CAFC (claims against the US, patents, customs)
4) CIT (international trade disputes)
5) US Supreme Court

District courts get help from ADJUNCT OFFICERS
        - magistrate judges
        - perform duties under the supervision of Article III judges

13
  cf. Verlinden where statute creates jurisdiction AND need something else to get federal courts interested in the
cause of action.


                                                                                                                     23
Theory behind Adjuncts (aka Article I Courts):
      - Non-Article III judges can be consistent with Art III judges, as long as they are
      performing duties FOR those judges!
      - generally handle misdemeanors, preliminary hearings, and civil matters
      - also, can have Art I appellate courts!
               - BAP
POLICY:
      1) ease the burden on District Court judges!
               - but, once created, they will generally not go away!
      2) Keep Art III courts SMALL and PRESTIGIOUS

Constitutional aspects:
       1) Art III §1 requires judicial power to be vested in courts with judges who have life
       tenure and salary protection!
               - contributes to independent judiciary!
               - BUT....Art I judges do not have these protections!!
               - Possible dangers:
                       - Separation of powers / aggrandizement of power by the Legislative
                       branch?
                       - If this happens, and legislature decides what cases Art I courts can hear,
                       the Legislature effectively decides the jurisdiction of Art III courts!


Q: When is is constitutional for Congress to vest in a legislative court the art III power to hear
cases and controversies? See Northern Pipeline, but Art III seems to require any judicial power
to be vested in judges that have lifetime tenure. So, where does power to permit Art I courts to
hear Art III cases and controversies?

Northern Pipeline ( Bankruptcy Act of 1978 eliminated the referee system and established
Bankruptcy Courts. Expanded Article I powers compared to the old system. 1) Gave BK judges
clout/power/14 year terms/fixed salaries/only removable for limited reasons. 2) Gave BK court
jurisdiction over all civil proceedings arising under or related to the Act! Unconstitutional14!
But only applies pro-actively (not retroactively).

         - Article I courts can ONLY hear PUBLIC RIGHTS cases
                 - rights created by Congress; policed by executive
                 -individuals vs. govt; govt vs. individuals
                 -arise in connection with legislative and executive branch performing its functions
                 - it created them, so it can determine how to enforce them
         - Article III courts MUST hear PRIVATE RIGHTS cases
                 - this is inherently judicial15!!

14
   Adjunct rationale not sufficient: doesn't leave essential attributes of judicial power to Art III judges, but gives it
all to a b/k judge; also gives b/k judge authority to hear state law claims. With all of these powers, the judges are
not longer Art I judges, but have become Art III (call a duck a duck)
15
   Tamayo emphasized


                                                                                                                        24
               -e.g., disputes between individuals (tort, contract, etc)

       POLICIES:
       1) Judicial integrity - can’t have Art I judges running around as Art III judges, without
       conforming to Art III requirements!
       2) Fairness to litigants – more you shield the judge from possible influence, the more
       impartial the decision
       3) Federalism – breach of K is a state-law claim, and should be heard by a STATE court
       anyway.
       4) Separation of Powers – don’t want the legislative controlling the Judiciary!; i.e.,
       judicial independence; Congress channels certain matters to Art I courts that can be
       pressured by Congress to create outcomes favorable to politicians; also shield Art III
       judges from executive interference


                                            STANDING

The concept of standing is a blend of constitutional and jurisprudential considerations
       - constitutional limits come from the Article III limits federal courts to 9 types of “cases
       and controversies”
       - jurisprudential concern is whether the plaintiff is the right party to sue before this court!

To be a "case or controversy" under Art III §2, it must be:
       1) concrete and non-hypothetical (no advisory opinions)
       2) parties claiming injury personal and concrete to THEM
       3) must arise neither too LATE nor too SOON. (mootness/ripeness)

Parties need to have a stake in the outcome and direct attention to the actual issue!

1) Constitutionally required aspects:

1) PERSONAL injury, concrete and particularized and actual or imminently threatened.
2) FAIRLY TRACEABLE to the DEFENDANT, not a 3rd party. (causation)
3) LIKELY TO BE REDRESSED by the court (not speculative).

2) Prudential aspects:

1) CANNOT SUE on behalf of THIRD PARTIES
2) NO GENERALIZED GRIEVANCES (citizen suits)
3) NO CLAIMS OUTSIDE THE ZONE OF INTEREST
      - must be part of the group the law intended to protect

3) Values served by limiting standing
1) judicial efficiency: also helps protect defendants from defending frivolous lawsuits; prevents
advisory opinions, etc
2) separation of powers (restricts judicial review to where it is truly necessary)



                                                                                                    25
3) ensures a personal stake in the outcome: if no personal stake, then may not zealously pursue
the case to its end
4) ensures fairness in remedy only to people who have been harmed


4) Questions the court will ask in determining whether standing exists:
1. is the injury too abstract or inappropriate to be recognized by the court?
2. is the line of causation to attenuated?
3. can we even redress the injury or is such relief too speculative?


Allen v. Wright ( Parents of black public school children sued because IRS did not deny tax-
exempt status to discriminatory private schools. Asserted injuries: 1) mere fact of government
financial aid to discriminatory schools: not a cognizable injury – not personally affected (p. 362).
2) impaired the ability for the children to have a desegregated education: concrete injury, but a
lack of causation! Too attenuated and not fairly traceable to the Δ! (p.363-64) If the parents had
applied to school BEFORE going to court, maybe a different outcome...)

       -Ps don't claim any direct injury, but only injury to their children's opportunity to receive
       a desegregated education, claiming it is traceable to IRS tax exemptions to the racially
       discriminatory schools
       -Ps seek only prospective relief

       -In order to get standing, Ps should have:
               -alleged that the injury was a localized grievance that affected only a distinct
               geographical area
               -only have a small number of Ps, not a nationwide class action
               -however, redressability may remain speculative since what will happen if IRS
               changes practices is not clear

       -Constitutional component of standing: P must allege personal injury that is fairly
       traceable to the d's allegedly unlawful conduct and is likely to be redressed by the
       requested relief.
              -POLICY elements:
                       1. federal courts exercise power as a last resort and matter of necessity
                       2. dispute thought to be capable of resolution in judicial process
       -Prudential compenent of standing: must be real party in interest; no generalized
       grievances, must be within the zone of interest of the law invoked
              -POLICY elements:
                       1. general prohibititon against raising another's claims
                       2. no adjudication of generalized grievances
                       3. P's complaint must fall in zone of interests of statute suing under


4) Statutory standing does not override Article III standing




                                                                                                   26
Lujan v Defenders of Wildlife (Plaintiffs had statutory standing under the Endangered Species
Act. Court found no actual or imminent injury, not fairly traceable to the Δ, the injury was not
redressable, and it was a generalized grievance. NO constitutional standing!)

       -where a party seeks to assert an injury to another, then the party needs additional things
       in order to get standing:
               -injury in fact must be imminent and direct to the plaintiff, not just special interest
               in subject
               -concrete injury req has separation of powers elements:
                       Tamayo: to permit Congress to convert executive officers' compliance
                       with the law into an individual right that is vindicated in the courts is to
                       permit Congress to transfer from President to Courts the president's
                       responsibility to see that laws are executed faithfully

       -statutory standing merely creates a procedural injury that is a generalized grievance.
       Unless Article III standing requirements are also met, there is insufficient standing to get
       into court (p. 393)

       Tamayo: -Lujan treats causation and redressibility as separate analyses, rather than
       interrelated analyses as in Allen
               -statutory standing, as in this case, puts agencies on notice that they can be sued
               for doing stupid things

5) Taxpayer standing

Duke Power requires a “logical nexus” between the injury and the alleged Constitutional
violation, for taxpayer standing cases. In general, taxpayer standing cases will be considered
generalized grievances, so generally NO standing. (The exception is for municipal taxpayer
standing! see Flast v. Cohen)

6) Standing implicates Separation of Powers!
1) Congress is implicated in citizen-suit provisions
2) Judiciary is concerned with Article III standing.
3) Executive is bound by the “take care” clause of Art. II.
If the court allowed citizen suits, this would impermissibly transfer power from the Executive to
the Judicial branch!

7) Zone of interest standing for generalized grievances
Federal Election Commission v Akins (FEC chose not to take action against AIPAC, because it
was not a “political committee” under the statute. Group of voters said AIPAC violated the
election laws. Zone of interest analysis. Congress intended to authorize these kinds of suits.
STANDING!)

       - Separates generalized grievances into two subsets – concrete yet widely shared, and
       abstract and indefinite. Concrete but widely shared will result in standing, if the other
       requirements are met!



                                                                                                     27
       - Article III does not ban ALL citizen suits!!

Tamayo:
      -standing for groups/organizations
      -problematic because challenging an individual's standing is different than challenging
      group standing
      -Questions to ask:
              -is group asserting its own interests?
                      Yes: then traditional rules of standing apply
              -is group suing in a representative capacity?
                      Yes: then special rules apply to ensure that the individuals represented
                      have their interests adequately protected

8) No legislative standing (unless vote nullification as in Coleman).
Raines v Byrd (Legislators sued in their representative capacity claiming Line Item Veto
was unconstitutional. Court found no legislative standing. No personal injury, organizational
injury is too abstract. Did not rise to a vote nullification issue, just dilution. NO standing! Plus,
it could be a political question, and judiciary would like to avoid this using the separation of
powers theory.)

       Legislative standing type injuries:
              1. alters Constitutional balance of power
              2. divests legislature of constitutional role in repeal of legislation
              3. alters legal and practical effect of all votes that may be case on bills in future

       Tamayo:
             -at the time that suit is brought, legislature had yet to suffer any of the harm
             complained of because line-item veto had not been used by Pres
             -

Be sure to check and see what CAPACITY a legislator is suing under! If personal, use normal
standing rules. If in a representative capacity, use Raines!

9) Third Party Standing is a prudential (NOT constitutional) limitation
Singleton v Wulff (Physicians sued over law excluding Medicaid benefits for “nonmedically
necessary” abortions. Court found that because of the close, confidential doctor-patient
relationship, patients’ claims bound up in doctors’claims, and imminent mootness of pregnant
mothers’ claims, doctor HAD STANDING.)

       Prudential Reasons why courts normally will not let parties adjudicate the rights of third
       parties:
                1. courts should not adjudicate rights unnecessarily, and a 3d party may not want
                his rights adjudicated; and
                2. a party is normally his own best advocate




                                                                                                      28
       Thus, courts look to facts to see if prudential barrier to asserting a 3d party's rights should
       be lifted. The court looks to two main facts:
               1. relationship between the litigant and the person whose right he seeks to assert;
               and
               2. the ability of the third party to assert his own right

Third party standing will be allowed when 1) close relationship and 2) obstacles to 3Ps
ability to assert their rights!

Examples of persons allowed to assert rights of third parties:
      1. defendants in a racially restrictive covenant suit can assert rights of blacks
      2. schools can assert rights of students
      3. vendors can assert rights of people restricted by a law from purchasing their products
      4. using the overbreadth doctrine to facially attack a law that violates First Amend

Elk Grove USD v. Newdow (2004) (standing question: who has standing for a "next friend" for
a minor to be able to sue?)
ISSUE: do words "under God" in the Pledge violate P's daughter's First Amendment rights?
FACTS: Dad seeks to assert rights of his daughter. Mom is the sole legal custodian of the
daughter who mom says is a Christian and is not offended by the Pledge. Then a California
court decided that both parents have legal custody, but that the MOTHER makes decisions if the
parties disagree.

       The court says that Dad is still permitted to instruct his daughter on his religious views.
       However, he does not have prudential standing to assert her rights in court. This is
       because:
              -state law controls domestic relations
              -state law gave Mother veto power over all custody-based decisions made by
              father
              -Newdow's standing derive entirely from his relationship with his daughter, and
              since court suspects that father's interests are not aligned with those of his
              daughter, questionable as to whether he is even asserting something she would
              want

               Overturns 9th Cir which says Dad had an injury in fact because his right to
               instruct his daughter on religion has been affected

       DISSENT:
       -the domestic relations exception is not a limit on prudential standing, but rather limits
       diversity jurisdiction for cases of divorce, alimony, and child custody decrees
       -therefore, P has standing, but he loses on the merits.
       -P has standing because he is challenging the Pledge ceremony itself and its exposure to
       his daughter. It is the father-daughter relationship, not his daughter herself that gives P
       standing.

10) Mootness



                                                                                                     29
Mootness = No stake in the outcome anymore - action brought TOO LATE
      “capable of repetition yet evading review” will survive a mootness challenge!

12) Overbreadth doctrine
      - Applies to First Amendment issues / fundamental rights
      - anyone can challenge a law as facially overbroad!
               - chills protective speech, and we want to protect free expression.
      - this is the main exception to third party standing


III. OTHER BARRIERS TO JUSTICIABILITY, POLITICAL QUESTION,
IMPEACHMENT

1) Ripeness
Ripeness is the justiciability of a case based on WHEN is the appropriate time to bring it!
       Ripeness challenge usually means an action is brought TOO SOON.
       -normally arises in cases for:
               anticipatory relief or injunctive relief, or
               challenges to administrative agencies

Poe v Ullman (Plaintiffs challenged law that prohibited contraception devices and the giving of
contraceptive medical advice. Case dismissed for lack of ripeness. Too speculative of a harm,
and a waste of judicial resources. Plaintiffs had not yet been convicted!)

BUT... if the harm caused by the SCT not hearing the case will be SIGNIFICANT, you will have
standing. If minimal, case will be dismissed.


2) Mootness
Mootness = No stake in the outcome anymore - action brought TOO LATE
      -“the doctrine of standing set in a time frame”: ie, standing must be met throughout the
      litigation
      -Exceptions:
               -voluntary cessation of criminal activity
               -capable of repetition yet evading review


US Parole Commission v. Geraghty (Tamayo skipped this case)
Issue: may denial of class cert be reviewed when named P’s claim has become moot?
HELD: class action does not moot upon expiration of named P’s substantive claim, even though
class cert had been denied

There are two aspects to mootness:
                                1. is the controversy still “live”?
                                2. do the parties have a “personal stake” in the litigation?




                                                                                               30
The issue here is the personal stake problem.
       -normally, if the class is already certified, then:
               -capable of repetition exception can save; or
               -class certified before named P’s claim moots out

       -however, if a judgment entered before named P’s claim moots, then P can appeal that
       judgment (as in this case with the judgment denying class certification)


3) Political Question doctrine
        - Political questions are NOT justiciable!
        - Tamayo: Applies to certain allegations of unconstitutional governmental conduct
            - ie, it applies to the subject matter of a case
            - court first talked about political question doctrine in Marbury (see p. C-3), but
               only included issues in which the President had unlimited discretion
            - Problem: Sup Ct has tried, but failed to give us good criteria as to when an issue
               is a nonjusticiable political question

       - The current view of the political question doctrine come from the Separation of powers
       rationale which comes from Brennan in Baker:

Baker v Carr (Indicator of political question: 1) textually committed to another branch of
government; 2) lack of judicially-manageable standards; 3) Other prudential considerations:
silence, checks and balances, integrity, finality, unable to provide relief, structural conflict,
embarrassing or too controversial, importance of speaking with one voice.)
        -see p. 461 for fully articulated list of the SIX reasons

Powell v McCormack (Whether Powell could be denied his House seat for misusing funds.
Textually committed to another branch.)
       -ie, the court is permitted to construe the meaning of the Const provision. Any acts
       permitted by the const become political questions

4) Impeachment
Nixon v. US (Extended the use of the political question doctrine. Judge Nixon was convicted of
making false statements before grand jury and sent to prison. Senate impeached him. Nixon
claims he was not “tried” within meaning of the Constitution because, pursuant to a Senate-
created rule, only a committee of Senators, rather than the entire Senate, heard evidence against
him. A political question will be found if there is no judicially manageable standard. The word
“try” does not have a standard.)

       HELD: Nixon’s issue is non-justiciable because it is a political question. Something is a
       political question when there is “a textually demonstrable constitutional commitment of
       that issue to a coordinate political department; or a lack of judicially discoverable and
       manageable standards for resolving it”
               -to reach on these issues, the Court must first determine whether the issue is
               textually committed (Powell)



                                                                                                    31
               -lack of judicially manageable standards may strenghten then conclusion that the
               issue is textually committed to a coordinate branch
               -since the word “try” lacks any judicially manageable standard (ie, the word can
               mean a lot of different things), this gives great weight to conclusion that defining
               the meaning of the word for impeachment purposes is committed to the Congress
               -Finally,
                       -judicial review of impeachments would be inconsisent with the checks
                       and balances of the Const because impeachment is the ONLY check on
                       the judicial power
                       -no need to worry about Senate usurping the judicial power by running
                       roughshod over the impeachment requirement because:
                                                           1. need a 2/3 majority
                                                           2. impeachment power is divided
                                                              between the House and Senate

Tamayo’s Take:
      -court extends the use of the political question doctrine; are challenges to the
      impeachment process non-justiciable
      -talked about the safeguards agaisnt Senate usurping judicial power
      -talked about textual commitment stuff
      -after this case, there is still a question about whether any and all impeachment questions
      are barred as political questions; OR if the decision is much more limited
      -in the end, the issue with impeachments is whether deference to Congress is
      PREFERABLE to having the courts oversee the impeachment process

Vieth v. Jubelier
ISSUE: challenge to redistricting of federal election districts performed by Penn Legislature as
an unconsititutional gerrymander
HELD: since no judcially manageable standards have been discovered for resolving
gerrymander cases, Bandemer was wrongly decided and the court should not get involved it was
is a political question

       -Art I, sec 4 permits Fed Congress to intervene and redraw districts created by state
       legislatures
       -however, Sup Ct held in Davis v. Bandemer (1986) that the EP clause granted judges the
       duty to control political gerrymandering
       -court cites the Baker v. Carr tests, and says that the second (a lack of judicially
       discoverable and manageable standards for resolving an issue) is at issue in this case
                -Court says that the Bandemer decision was wrong and vague because it never
                defined what the judicially manageable standards were and so only served as an
                invitation to litigation
                -BANDAMER: had said that a P need to show “intentional discrimination against
                an identifiable political group AND an actual discriminatory effect on that group”
                        -ie, intent plus effect
                        -appellants argue that the intent standard need only show that the
                        “predominant intent” was to achieve partisan advantage; and



                                                                                                 32
                               -that is can be shown by shown by direct or circumstantial
                               evidence that other neutral and legitimate redistricting criteria were
                               subordinated to the goal of achieving partisan advantage”
                               -COURT: too difficult to apply even to a single district much less
                               to a state-wide redistricting: too vague!!
                       -appellants argue for a two-pronged effects test as well:
                               -districts systematically pack and crack the rival party’s voters;
                               and
                               -a court’s examination of the TOC proves that the new map with
                               thwart P’s ability to translate a majority of votes into a majority of
                               seats

                               -Court: since politics is not an immutable characteristic, this is a
                               foolish attempt at a test

       DISSENT: since only 4 members of court would overrule Bandamer, poltical
       gerrymandering cases generally are still justiciable; just no agreement on standard for
       adjudicating such claims
       -the EP clause does protect this because in both racially and politically gerrymandered
       districts, it is possible that a representative will feel no desire to represent certain portions
       of her district; therefore diluting the power of votes

       -another DISSENT would create a McDonnell burden-shifting test for bringing EP
       gerrymandering claims
              -including requiring P to offer an alternative redistricting plan

Tamayo’s Take:
      -added nothing to what I have here, except
      -plaintiff’s want the court to use a TOC “fairness” analysis. The Court says that such a
      standard is impossible to apply in a gerrymandering case; THUS, because there is no
      judicially manageable standard for resolving the issue, it is a political question
      -she never talked about the DISSENT


                            FEDERAL QUESTION JURISDICTION

A. FEDERAL QUESTION JURISDICTION

Federal Question statute: §1331
       - it’s a catch-all provision: federal statutes and federal CL claims

Remember: Fed courts are courts of LIMITED JURISDICTION! This leads to “maxims”
     1) Can only hear Fed Questions or Diversity, AND
     2) only if authorized to do so!




                                                                                                      33
Maxim #1: In order to have jurisdiction, a Federal court must have Constitutional AND statutory
authority
        1) Constitutional = Art III and the 9 categories of cases and controversies
        2) Statutory = §1331
                --having Article III jurisdiction alone is not enough because Congress has
                authority to define lower federal court jurisdiction
                --1331 is similar to Art III BUT it gives original jurisdiction to the lower courts,
                whereas Const only gave power to the Supreme Court and left it to Congress to
                create the rest of the courts under 1331
                --Art III language interpreted expansively by Sup Ct (eg, Osborn and potential
                ingredient); but 1331 and other statutes are interpreted narrowly

Maxim #2: There is a presumption AGAINST being in federal court!
     - Plaintiff has the burden of proof of Subject matter jurisdiction!

Maxim #3: Jurisdiction of federal courts is NOT based on CONSENT!
     -POLICY: would disrupt federalism values by allowing fed courts to usurp state law
     power; preserves dominion of state courts; separation of powers issue to constrain federal
     judicial power and prevent it from legislating

1) Interpreting the Constitutional and Statutory grants of authority
 Article III
        - BROAD interpretation by courts16! (cf. Verlinden, p. 275)
        - Under Osborn, only needs to be a potential ingredient in the case!
 §1331
        - NARROW interpretation
        - jdxn must be apparent from the FACE OF THE COMPLAINT
                a) must be a cause of action created by Fed Law, OR
                b) a cause of action based on state law, but Fed law interpretation is required
        - moreover, the court will ADD or REVISE the complaint to what it would have said to
        properly allege the cause of action and THEN it will determine if jurisdiction apparent
        from face of complaint


Mottley ( “The well-pleaded complaint rule.” Ps had a state-law breach of K claim, with an
unconstitutional “takings” argument. Mottley’s Fed question only arose through alleging a
possible defense by the RR. You cannot allege the Δ’s defense!! You must plead your own
cause of action.)

Tamayo skipped from here to #2 below – delete this if she never returns to it:
Subject Matter Juris always matters: if it is lacking, then the case is dismissed.
       -Steel Co v. Citizens for a Better Environment: the attempt of some courts at hypothetical
       jurisdiction – reaching on the merits where that is simple without examining sub matt
       juris – is wrong and impermissible

16
   FORK: broad v. narrow interpretation; court has not given good direction on which clause/statute language that it
is interpreting in its case law, and this makes it difficult to understand what is behind each of these interpretations


                                                                                                                    34
       -thus, a federal court should ALWAYS FIRST determine whether it has subject matter
       jurisdiction

In Personam v. Subject Matter Jurisdiction: Ruhrgas AG v. Marathon Oil Co
       -despite the holding of Steel Co, this case resolved the easy in personam question to
       dispose of the case without reaching on the very difficult subject matter jurisdiction issue
       -Ruhrgas held that there is no jurisditional hierarchy and that a court can decide
       whichever jurisdictional issue in whichever order

2) Mixed Questions of State and Federal law: ARISING UNDER problems

American Well Works v Layne (No fed question jurisdiction! A suit arises under the law that
creates the cause of action. State business libel claim over a patent was not a federal question,
since patent laws did not impose LIABILITY; federal patent law is only about ownership.)

-Despite rule of thumb stated in American Well Works, not all claims arising under federal law
will confer federal jurisdiction:

Shoshone Mining (No fed question jurisdiction, even though cause of action arises under a
federal statute! A federal mining statute was implicated in an ‘adverse suit’ over right of land
possession. Did not involve the construction or effect of the Constitution. Just facts, local
rules, and customs!)

Smith v. Kansas City Title ( FED QUESTION JDXN! Stockholder derivative suit. Claim that
Federal statute authorizing sale of bonds was unconstitutional. Even though suing the
corporation on a breach of state law duty, a challenge to a federal statute is “an integral
component” to the claim and directly drawn into question. Where the right to relief depends
upon the construction of the Constitution or federal law, there is a federal question.)

Moore v. Chesapeake (No fed question jurisdiction! RR worker sued in fed court under state
statute covering injuries in INTRAstate commerce, which incorporated portions of a federal
INTERstate commerce statute. Plaintiff’s right to relief based on liability depended upon KY
state law, not Federal law!)

Merrell Dow ( No fed question jurisdiction! Ps sued in state court for birth defects and alleged
common law negligence because the drug was not labeled properly under FDA. If a case could
not have been BROUGHT in fed court, it CANNOT be REMOVED to Fed Court! The federal
statute must create the cause of action, in order to remove. The federal issue cannot merely be an
element of the state law claim, the federal law itself must create the cause of action.)
        -Merrell Dow therefore narrows the holding in Smith.

Tamayo’s Take:
      -how can we reconcile these case? We need to find policy reasons. The one she offers is
      that the case where federal jurisdiciton permitted is not something that will open the
      floodgates of litigation (Smith). But in Shoshone and Moore fear that such claims are




                                                                                                   35
          more common and federal courts don’t want to get into overworking themselves and
          interpreting state law.

3) Supplemental Jurisdiction
Re: issues that on their own don’t support federal jurisdiction

Once “arising under” jurisdiction has been satisfied, plaintiff can assert any state law
claims under supplemental jurisdiction! (again, see Osborn p. 264)

United Mine Workers v Gibbs (allows supplemental jdxn provided the State and Fed claims
arise from a common nucleus of operative fact)  see also Owen Equip

-The two sources of supplemental jurisdiction:
       - Constitutional basis: Article III requires “cases or controversies”
               - refers to a single set of facts that creates one constitutional “case”
               - also refers to ALL claims arising from that set of facts.
       - Statutory basis: 28 USC §136717
               - enacted in 1990.
           - overruled Finley – because it added to supplemental jurisdiction “claims that
               involve joinder or intervention of additional parties.”

This is a doctrine of DISCRETION! NOT the plaintiff’s right!
- Fed court can dismiss the state law claims if:
        - the fed claim is dismissed, OR
        - if the state claims predominate!
        - (may also dismiss for discretionary reasons, such as potential jury confusion re the
            divergent legal theories)

Also, related state claims with no other basis of jurisdiction (by plaintiff) AND compulsory
counterclaims (by Δ) will be heard if the case arises under Fed law!

City of Chicago v. Intl College of Surgeons: Landmarks Commission did not permit ICS to sell
land to a developer because it said mansions on the land were historical landmarks. ICS sought
review of the administrative decision in state court and alleged that the decision violated the
federal Const. Chicago removed to federal court. The case was properly removed to federal
court because the right to relief under state law required the resolution of a substantial
question of federal law. BUT, Sup Ct said that just because the Dist Ct could permissibly take
jurisdition, didn’t mean that it HAD to. So, SC remanded to Dist Ct to decide if it should
prudentially abstain from taking jurisdition.


                                   DIVERSITY JURISDICTION
                                  (focus on status of the parties)



17
     page B-16


                                                                                                 36
Diversity jursidiction conferred on federal courts by the judiciary act of 1789. Now at 28 USC
1332

Policies behind diversity jurisdiction:
        -1. protect the nonresident litigant from local judicial prejudice
        -2. avoid state legislatures protecting resident debtors from debt collection to nonresident
        creditors
        -3. fear that state judges were selected as political rewards, not for their legal abilities;
        moreover legislatures used to appoint and remove judges who would likely rule in ways
        that were favorable to keeping their jobs (ie, in favor of state citizens)
        -4. indispensable to protect free flow of capital from one part of the country to another

Argument to abolish:
     -1. out of state prejudice doesn’t exist anymore
     -2. federal court is too complex and expensive

Argument to keep:
     -1. diversity juris is a social service provided by federal govt for its people
     -2. the law exists to settle disputes, and fed courts provide a good place to do that

Requirements for Diversity:
       -1. citizenship of different states:
                -requires that person is both a citizen of the US; and
                -is domiciled in the particular state
       -2. diversity is determined at time the suit is filed and must be alleged in the pleadings
       and proved, if challenged
       -3. failure of diversity can be noticed at any time in the proceedings and is always fatal to
       jurisdiciton
       -4. can involve any kind of dispute (except in rem actions for property in state court
       custody, domestic relations, and probate)
       -5. requires good faith claim to $75,000+ as the amount in controversy
                -can claims be aggregated to meet the amount?
                        -i. a single P can aggregate claims against the same D; but
                        -ii. multiple parties may NOT aggregate claims against a single D (even in
                        context of class actions)

United Steel Workers of America, AFL-CIO v. RH Bouligny (1965)
FACTS: Bouligny, a North Carolina corp, sued United Steelworkers, an unincoporated entity
allegedly located in Pennsylvania, for alleged defamation that occurred during campaign to
unionize steel workers.
       -Steelworkers then removed the case to federal district court under 28 USC 1441(a),
       asserting that it was a citizen of Pennsylvania, even though some of its members were
       citizens of North Carolina.
       -Bouligny sought to have the case remanded to state court, relying on principle that an
       unincorporated association has the citizenship of its members




                                                                                                   37
ISSUE: Whether we treat unincorporated organizations as an entity with citizenship or we look
to the citizenship of its members for purposes of determining diversity jurisdiction.

HELD: This is a matter for legislature to decide and so court maintains the old rule of looking to
citizenship of the unincorporated organization’s members; therefore, remanded to state court.

Tamayo’s Take:
-a corporation is a citizen of state (28 USC 1332(c)):
       -in which it is incorporated; and
       -where it has its principal place of business

       -this DUAL CITIZENSHIP is a product of diversity jurisdiction problems. Congress
       therefore made corporations citizens of two states. Since a corporation is now a resident
       of two states, it increases the likelihood that there will be no diversity.

       -although court won’t extend diversity jurisdiction based on corporate citizenship to an
       unincorporated organization (eg, a union) and leaves it to Congress, the court says there
       are good reasons for permitting diversity in this case:
                      -1. Art III judges are insulated from local pressures
                      -2. Juries selected from wider geographical areas
                      -3. Any appellate court would have a multi-state perspective
                      -4. More effective review by US Sup Ct

       -unincorporated organization citizenship determine under the aggregate theory (ie, look
       at citizenship of ALL MEMBERS of the unincorporated organization)

Strawbridge v. Curtiss (1806)
Citizens of Mass sued a Vermont citizen and other citizens of Mass. In response, the court held
that complete diversity is required to satisfy diversity jurisdiction.

Owen Equip & Erection Co v. Kroger (1978) – P’s claim against third party destroys diversity
Kroger Rule: denies supplemental jurisdiction over claims by plaintiff against 3rd party Ds that
were impleaded by the original defendant
       -preserves rule of complete diversity as applied at commencement of litigation

FACTS: Kroger electrocuted when steel crane touch high-tension wire. Widow (Iowa citizen)
brought wrongful-death action against Omaha Public Power (Nebraska citizen). Omaha filed 3d-
party complaint against Owen. P then added Owen as a D to the original action. Owen was
incorporated in Nebraska, but its principle place of business was Iowa.
        -court grants MSJ for Omaha. Owen then moved to dismiss case for lack of diversity
        since both parties were Iowa citizens. Court denied the motion citing Gibbs to hold that
        it had discretion b/c of common nucleus of operative facts for the state law claim to hear
        the Iowa v. Iowa case, and held trial where P got a victory.

HELD: a P in a diversity action may not assert a claim against a 3d-party D when that would
destroy diversity; if they do so, the case must be dismissed



                                                                                               38
       -jurisdiction of federal courts is limited by Const and statute. Here, it is arguable that
       Const gives courts jurisdiction to hear the claim. However,
               -statute requires complete diversity of citizenship for jurisdiction to exist at all
               (ie, it must exist before the ancillary jurisdiction of Gibb may be relied upon)
       -so, since P could not have originally sued Owen directly, it cannot sue it under ancillary
       jurisdiction
               -true ancillary jurisdiction is when a claim is logically dependent on the
               resolution of the first claim; not as here where it is a free-standing claim based on
               the same nucleus of operative facts

               -TAMAYO: ie, the rules have to be liberal enough to let a D bring in all needed
               parties to get contribution and protect its interests (see p. 537); and defendants
               have been haled into court against his will and must assert rights against 3rd-party
               D at that time (protects against sol problems; supplemental jurisdiction exists to
               permit a D to muster her resources to defend herself)
                       -moreover, if P wanted to sue the non-diverse party, P could have elected
                       to file in state court
               -in short, D had no choice to go to court; P had a choice to go to court
                       -NB: if there is a counterclaim against a P brought by D, then the P
                       becomes a counter-D and can now use supplemental jurisdiction to
                       implead a non-diverse D in the counterclaim


DISSENT:
     -since the original claim had true diversity, once the fed court had jurisdiction, it
     maintained the ability to here the non-federal claim because, as here, the second claim
     was derived from a common nucleus of operative fact
     -this holding unnecessarily expands the complete-diversity requirement while
     substantially limiting the doctrine of ancillary jurisdiction (p. 539)
     -because P only affirmatively added the non-diverse D after the other D filed a 3d-party
     P complaint against it, judicial economy and convenience and fairness to litigants permit
     the court to maintain jurisdiciton after main D has been dismissed from lawsuit
             -thus, so long as the diverse P and D do not collude to bring in the non-diverse D,
             the court should maintain jurisdiction

Removal Jurisdiction: removal is another way to ask to get into federal court: ie, this is when a
Defendant invokes federal jurisdiction
-D can only remove when P could have brought case in federal court in the first place

-28 usc 1441 provides removal authority:
       -when is it allowed?
              -D files “notice of removal” and state court must immediately stop all activities
              related to the case
              -if matter could have properly been brought by P in federal court: ie, diversity or
              federal question



                                                                                                  39
              -generally, removal requires the complaint to affirmatively plead a federal claim,
              but Beneficial points out some exceptions where only a state law claim was
              pleaded:
                     -express preemption by Congressional statute from bringing claim in state
                     court; and
                     -where statute impliedly preempts the claim entirely under state law
              -EXCEPTIONS to removal jurisdiction:
                     -1441(b): if action was brought in D’s home state, then D cannot remove
                     the action to federal court
                             -since POLICY for removal was to give a D a fair forum, the fair
                             forum is assumed where D is in his home state court
                     -1445: nonremovable actions
                             -state W/C claims
                     -1441(c): removable and non-removable claims together
                             -similar to supplemental jurisdiction; promotes judicial efficiency
                             -entire case can be removed
       -what procedure must you follow in order to remove?
       -what can P do to prevent removal?

Beneficial National Bank v. Anderson (2003)
FACTS: taxpayers pledged their tax refunds to get short-term loans from bank and then brought
suit on ground that rates were usurious.
        -Bank removes to fed court (28 usc 1441(b)), claiming that the National Bank Act is the
        exclusive provision governing the rate charged to respondents AND that it provides the
        exclusive remedy for Ps.

ISSUE: may an action filed in state court vs. a national bank under the Alabama usury statute be
removed to federal court because it violates the common law usury doctrine?

HELD: Yes, because:
     -1. as a general rule, absent diversity jurisdiction, a case will not be removable if the
     complaint does not affirmatively allege a federal claim;
              -BUT, Congress has created certain exceptions to that rule:
                       -by providing express preemption language that states that certain claims
                       can be removed to federal court as of right (eg, Nuclear tort claims; Labor
                       Relations Act cases; ERISA cases)
                       -these preemptions work even where a P has pleaded a case only under
                       state law and has not sought federal relief
     -2. Therefore, a state claim may be removed to federal court in only two circumstances:
              -first, where Congress expressly provides in statute; or
              -second, when a federal statute wholly displaces the state-law cause of action
              through complete preemption

       -under the complete preemption rule, a complaint that states a state law claim is really a
       federal law claim because the state law claim is impossible




                                                                                                40
       THEREFORE, the big question here is:
            -does the National Bank Act provide complete preemption of state law usury
            claims?

               -stare decisis: Court looks to case law decided right after NBA passed in late
               1800s and sees that the Court has decided that NBA provided exclusive remedies
               for violations by national banks

DISSENT (Scalia)
-this is an “arising under” original jurisdiction case and is governed by well-pleaded complaint
rule
-to be removable, the complaint must invoke federal law, not merely state a state-law claim that
could have been brought as a federal claim
         -in other words, “the plaintiff is the master of the claim”

-not only are the precedents relied upon by the Court faulty, but this decision breaks from the
Court’s tradition of “respect for the autonomy and authority of state courts”
       -ie, this is a huge federalism problem

       -Scalia says that even if the court is right that the state claim is preempted, then the
       federal court should order it dismissed, unless the P wants to bring the claim in federal
       court
       -in other words, this case should ONLY stand for the proposition that the only viable
       claim is a federal one, but not that the state claim transmogrified into a federal claim


Appellate Jurisdiction
-normally Sup Ct requires a “final judgment” by federal circuit court
-normally federal circuit courts require a “final judgment” from district courts
-POLICY: why wait until final judgment to have appeal?
       -saves a ton of time in litigation; prevents piecemeal appeals

       -Exceptions: interlocutory review permitted by:
              -1. statute; or
              -2. collateral order

       -collateral order doctrine
               -court of appeals can review a decision of the district court that:
                       -order must conclusively determine the disputed question (ie, effects an
                       important right);
                       -order must resolve an important issue completely separate from the merits
                       of the action; and
                       -order must be effectively unreviewable on appeal from a final judgment

Coopers & Lybrand v. Livesay (1978) – collateral order exception
ISSUE: is district court denial of Rule 23 certification a final decision that may be appealed?



                                                                                                   41
HELD: No, it is not appealable under 28 USC 1291.

FACTS: C & L is an accounting firm that certified statements in a prospectus re sale of Punta
Gorda Isles securities. Livesay relied on these statements and lost money on investment.
Livesay then brings the action on behalf of all investors.
       -OOPS: Livesay never asked the district court to certify its order for interlocutory review
       (28 usc 1292(b)), but rather appealed under sec 1291.
       -Court of App held that it had jurisdiction because the decertification sounded the death
       knell for the class action because it seemed Livesay would not pursue the lawsuit on his
       own because he only lost $2650.

RULE: appellate jurisdiction depends on the existence of a decision by the district court that
“ends the litigation on the merits and leaves nothing for the court to do but execute judgment.”

       -in this case, decertification of the class did not terminate the P’s individual claims

EXCEPTION: such an order may be appealable under the collateral order exception or the
death knell doctrine used by some circuits

       -1. collateral order elements:
               -order must conclusively determine the disputed question;
               -order must resolve an important issue completely separate from the merits of the
               action; and
               -order must be effectively unreviewable on appeal from a final judgment

       -2. death knell doctrine:
               -assumes that without group resources, an individual cannot afford to pursue
               lawsuit to a final judgment and then seek appellate review of an adverse class
               determination

               -Sup CT: class actions cannot have their own appeal structure; death knell would
               have to apply to all interlocutory orders in all litigation
                      -the application of death knell doctrine involves comparing value of claim
                      to likelihood of an individual continuing
                               -this is plainly a “legislative judgment”: separation of powers
                               -and, the legislature has made finality the basis of appeal, not a
                               cost-benefit analysis
                      -POLICY: futhermore, the death knell doctrine is clearly a waste of
                      judicial resources; and
                      -it authorizes indiscriminate interlocutory review of decisions made by a
                      trial judge

               HELD: death knell doctrine is not permissible; therefore, no appeal permitted
               from the interlocutory order

Notes on SC review of Final Decisions by State Courts



                                                                                                   42
-28 USC 1257: federal courts have jurisdiciton to review all decisions made by a state’s highest
court

Cox Broadcasting (1975)
HELD: permits SC review of a state SC decision, where that decision decided various matters of
federal law, but also remanded for determinations of factual issues
        -in other words, the decision was final because the interpretation of federal law was final,
        even though some factual issues remained to be determined

Four categories of cases in which SC may take review of state decision:
       -1. federal issue conclusive or outcome preordained
       -2. the federal issue will survive anyway
                -ie, regardless of outcome of trial on remand, the federal issue will still require a
                decision by SC
       -3. federal issue cannot be reviewed later
                -ie, the federal issue will moot before SC can review
       -4. later review would seriously erode federal policy

DISSENT:
     -due to concerns of comity and federalism, the SC should strictly construe the finality
     requirement for review of state SC decision contained in 28 usc 1257

Additional Notes on Technical Aspects of SC Review of State Decisions
Initiating Review
         -the SC has complete discretion of whether to hear state supreme court decisions (since
         1988 amendment of 28 usc 1257)

Meaning of Summary Disposition of Appeals
      -these cases have precedential value
      -even though the SC did not give the cases plenary consideration, they did deal with those
      cases on the merits

Preservation of Error
       -for it to be reviewable, the federal question must be raised properly, preserved, and
       ultimately decided by the state’s highest court

Relevance of Federal Rules of Standing
       -what happens when the parties had standing in state court, but do not meet the
       requirements of Article III standing?
       -ASARCO v. Kadish (1989):
              -final decision under two of the Cox exceptions
              -however, SC needs to ensure that federal law is applied uniformly; therefore, it
              should decide on the merits, even though the case could NOT have been brought
              in a federal court




                                                                                                    43
                  -HELD: where a final state court decision causes direct, specific, and concrete
                  injury on the party seeking SC review, then the SC may review it if the case and
                  controversy req is met EVEN IF there is no Article III standing.


         -Dept of Labor v. Triplett (1990)


         -Nike v. Karsky (2003)
                 -shows how the Cox analysis has become bound up with the merits of a case


syllabus:
       -section VI taken care of by handout
       -skip section VII for now
       -Read section VIII.A (11th Amend for Tues after Spring Break)

ELEVENTH AMENDMENT

The 11th Amendment is another limit on the jurisdiction of federal courts
       - prohibits suits in FEDERAL courts
       - in law, equity, or admiralty
       - by citizens of the same state18, different state, or foreign state!

11th Amend important for:
       -determining relationship between state and federal govt
       -protecting autonomy of a state by immunizing it federal suits

Expansive view of the 11th Amendment:
      - Immunizes states from SCT review!
      - Provides independence to states by precluding fed courts from enforcing fed law
          [risks lack of enforcement of federal rights]
      - policy:       - PROTECT THE COFFERS OF THE STATE
                      - The State is fundamentally different from an individual

This is not a clean area of the law! It is a “hodgepodge” and tortuous! Supreme Court has
devised a number of ways to circumvent the immunity provided by the 11th Amend.
TENSION: how do you protect state autonomy and still ensure state compliance with federal
law, especially protection of constitutional rights?
        1) Article III gave original jurisdiction to the SCT for suits involving:
                - state v state, AND
                - state v citizen of another state
        2) 11th Amendment modified this!
                - Chisolm allowed Georgia to be sued in Fed court (in 1793)

18
   this is despite the plain language in the 11th Amend that doesn’t seem to exclude suits by citizens against their own
states in federal court


                                                                                                                     44
            - 11th amendment was approved by both houses merely three weeks later!!
                     - States would have been crushed by suits attempting to collect unpaid
                         Revolutionary War debts!
       2) Hans v Louisiana prevented citizens from suing THEIR OWN state in Fed ct.
            -adopting the “immunity interpretation” of the 11th Amend: ie, the 11th Amend
            constitutionalized state sovereign immunity
            -in effect, the policy of sovereign immunity behind the 11th Amend is so strong
            that it applies to suits against a state by its own citizens, despite lack of language
            in the Amend to that effect

       4) Osborn found that naming a State as the party was prevented by 11th Amend, but
       allowed states to be sued by naming a STATE OFFICER as a Δ.

Suing a state officer is only possible depending on:
       -1. nature of the relief
       -2. type of claim for relief

       5) Ex parte Young – the most important case EVER!
              - Can sue state officers for INJUNCTIVE relief, for illegal acts, even
                  though remedy will enjoin implementation of official state policy.
                  - In other words, you need:
                      - 1. to allege a violation of the federal constitution; and
                      - 2. seek an equitable remedy (ie, injunction) in federal court
              - State officers have no authority to violate the Constitution!
              - Illegal acts strip the officer of State authority
                  - naming the state official as the defendant strips him of any cloak of state
                      immunity so long as the acts accused of are found to violate federal Const.
       - No 11th amendment bar to suit!
       - YT: “This case is primary method to limiting effect of 11th Amend”

       Tamayo:
             -Criticism of this case: this case is a joke because the state is the really party in
             interest, and so infringement on state sovereignty is exactly what 11th Amend was
             designed to protect
             -Support of Case: so what if state is real party in interest, we can’t let individuals
             act unconstitutionally. Also, distinguishes between state and officers the way law
             has always distinguished between corporation and a corporation’s agent acting
             ultra vires and treating agent as an individual actor

Serious FEDERALISM issues!
- Fed courts can find state acts unconstitutional!
- Can find state officers LIABLE




                                                                                                 45
Tamayo:
              -Moreover, isn’t the 11th Amend simply a limit on the federal courts? So,
              therefore, Congress should have authority to grant federal jurisdiction against
              states when the Congress decides it is necessary to carry out its intentions


Seminole Tribe of Florida v Florida ( Held: 1) Congress lacked authority under the Indian
commerce clause to abrogate 11th Amendment state sovereignty – Congress can only abrogate a
state’s immunity under sec 5 of the 14th Amend; 2) Ex parte Young did NOT apply since Indian
Gaming Act had intricate remedial provisions.)
         -where there is an intricate remedial scheme created by Congress, the Court will not
         intervene and impose one of its own via request for injunctive relief
         Tamayo: THUS, if this law did not have remedial provisions, one could sue a state
         officer under Young and get relief in federal court

       -DISSENT:
             -the 11th Amend should be read only as forbidding federal courts from
             entertaining citizen v. state diversity jurisdiction suits

11th amendment restricts Fed courts under Article III – cannot use Article I power to get
around it!
      - Congress can only abrogate 11th amendment through §5 of the 14th amendment
      - “Congress has the means to enforce, by appropriate means, the provision of this Art.”

City of Boerne v. Flores
        -RFRA restored by statute the compelling interest test or burdens on religion (even in a
        neutral, generally applicable law) in an attempt by Congress to overrule Oregon v. Smith
        -Congress relied on 14th Amend (sec 5) as power to enact RFRA; however, this power is
        only a remedial/enforcing power.
                -RFRA is not enforcing a right, but altering the meaning of the Free Exercise
                clause, and only the Supreme Court is permitted to say what the law is
                -to permit Congress substantive powers under 14th Amend would be the same as
                permitting Congress to change the Const with a mere legislative act
        -HELD: any law enacted under 14th Amend must be congruent and proportional to the
        means adopted and the legitimate end to be achieved; the Congress cannot create new
        rights or expand existing rights

       Tamayo:
             -must be proportionate and congruent to the constitutional violation being
             remedied
             -in this case, SC sharply limits Congress’ power under sec 5 of 14th Amend
             -Question to ask of a fact pattern: whether the law at issue fits within the scope of
             section 5 of the 14th Amend?

Idaho v. Coeur d’Alene Tribe ( Under 11th amendment, tribe could not sue in Federal court. Ex
parte Young is inapplicable. Idaho’s sovereign interest in its land and water is as important as



                                                                                                46
its treasury. Injunctive relief would be like taking the land and water. State courts are available to
hear the claims. Case-by-case basis!  ie, Young is not a per se rule)
         -When should Ex Parte Young be applied?
                 -1. where no state forum is available to vindicate federal interests
                 -2. when the case calls for the interpretation of federal law
         -Normally, the tribe would be able to apply Young because they allege an ongoing
         violation of federal law; however, this case is the equivalent of a quiet title action which
         implicates special sovereignty interests, and therefore should be tried in state court

       Tamayo:
             -Boerne is one exception
             -Idaho is a second exception that bars a Young suit where the suit “implicates
             special sovereignty interest”
                      -ie, even though named state officers, since the goal of the suit is to take
                      away state-owned land, this is truly a suit against the state and so the 11th
                      Amend applies
             -criticism of Idaho:
                      -federal courts have a special role in regulating relationships between
                      states and tribes


                                42 usc 1983: Under Color of Law

A primary function of Federal courts is to provide relief for actions taken by Fed and State Gov.
employees.

42 USC §1983 claims – actions against state officials acting under “color of law”
      -possibility of getting atty fees if P prevails

1) Purpose of statute – to provide a Federal remedy because States were not doing their job!
       - fundamentally altered the role between the Fed and State
       - Fed is watchdog over the states (Federalism tension!!)
       - Originally used to curb states permitting KKK to act freely to harm blacks
       - Interposed the FED in between the people and the State
               - §1983 covers actions against state officials, AND
               - actions against LOCAL officials acting under color of state law

-Why have 1983 claims exploded since 1961?
      -atty fees available
      -general increase in litigation
      -Monroe permitted the statute to reach much more conduct

2) Requirements for a §1983 claim:
             1) A “person”
             2) acting under color of law (see Monroe)
             3) must deprive P of a Const. or legal right, privilege, or immunity.



                                                                                                   47
Prior to Monroe, the conduct had to either be
1) conduct by a state official, OR
2) conduct that was so widespread as to be custom

But, does color of law only apply to state officials, or does it extend to AGENTS of state
officials? Monroe answered this question - YES.

Monroe v Pape (13 Chicago Police officers broke into Monroe’s house and violated a bunch of
his rights. Extended and BROADENED §1983 to officials if they ABUSE their position.
Police Officers were DEEMED to act “under color of” law, because the are CLOAKED by the
law. Provides an independent Federal remedy – useful when state has one but does not
enforce it, or does not have one at all! Chicago was NOT liable – the officers WERE. Money
damages!!!)
        -this case made 1983 claims an independent federal remedy for violation of state law (as
        well as for federal law)

REMEMBER:
1) MONEY DAMAGES ARE THE HEART OF §1983!!
       - they compensate and deter!
2) §1983 claims can be brought in STATE court
       - State cannot refuse to hear unless it has a valid excuse
       Valid excuses = discretionary dismissal by statute when neither party is resident
                       = action arises outside of territorial jurisdiction
                       = forum non conveniens, if invoked impartially and w/o discrimination

3) Pros and Cons of where to bring a §1983 claim:

State                                         Fed
- might be more comfortable there             Judges are experts in Fed law
- states might be more protective             More sympathetic to Fed rights?
- procedures might be more lenient

Municipality liability under §1983: [Didn’t read this case for class; did we talk about
municipalities in lecture?]
Monell v. Social Services ( pregnant teachers / unpaid leaves. Municipalities are “persons” to
which §1983 applies! HOWEVER... cannot sue a municipality for injuries inflicted solely by its
employees! No respondeat-superior liability for municipalities! Municipality is only liable
for DIRECT ACTIONS. Employing the tortfeasor is not enough.

Notes on Monell:

The 11th Amendment prohibits suit against a STATE (not local government)
       - but you can sue *indirectly* against state officers acting in their ”personal”
       capacities (Ex parte Young)




                                                                                               48
- Was Monell necessary to prevent the derailing of discrimination suits against school boards?
      - State has a strong interest in indemnifying employees for damages arising out of their
      official actions

- §1983 actions get transformed into federal common law!


XII. IMMUNITIES

1)_ ABSOLUTE IMMUNITY
      - Prosecutors
      - Judges
      - legislators
      - President (for acts during the term of the presidency)

2) QUALIFIED IMMUNITY
      - Police Officers
      - Executive/administrative officials

Immunities in general:
- Absolute immunity goes to the LEVEL and NOT the scope of the immunity.
       - promotes the interest in being free from recrimination
       - only absolute if acting within scope of official duty
- Qualified immunity relates to suits for money damages.
       - Immunity from money damages may not extend to OTHER remedies, such as
       injunctions
       - Must be acting within sphere for which the immunity is recognized
- Determinative factor is FUNCTION you perform, NOT title of position.

example:       Police officer has qualified immunity under §1983, but absolute immunity when
               testifying as a witness!

Scheuer v Rhodes (Ohio national guard shot Kent State students. Sued Governor and others.
Court held: Governor receives Qualified Immunity if 1) reasonable grounds existed at the
time of the action and 2) the Gov had a subjective good-faith belief that the actions were
warranted. Objective / Subjective test!)

Not barred by 11th amendment – ex parte Young
Legislative history did not support absolute immunity

Policy behind official immunity:
1) injustice of penalizing official who must use discretion in his official position
2) danger that the threat of liability would deter him from doing his duty

Policy behind judicial absolute immunity:
1) need for judge to be free to act on his own conviction



                                                                                                 49
2) likelihood of retaliation by the loser
3) record keeping they would have to do to CYA
4) availability of other remedies (impeachment, appeals)
5) ease of bringing a bad faith claim and “vexatious litigation”

The fundamental unfairness:
Cops on the street get only qualified immunity, while judges who get to relax in their chambers
get absolute immunity?

Jones v Clinton (Slick Willy made improper advances toward Paula. Court held: No immunity
for UN-official acts of the President, even if they occurred prior to taking office!)

Dissent – puts the President’s energies toward defending questionable lawsuits. Is the President
to drop everything for a deposition???




VIDEO: SCALIA and foreign law:
-you can look to foreign law for the interpretation of international treaties
-can also be relevant to the meaning of an American statute, where the statute is designed to
implement a treaty provision. So, the interpretation of the treaty provision by foreign courts is
relevant to the interpreation of the statute
-Foreign Sovereign Immunities Act:
        -where property is taken “in violation of international law”, court needs to consult
        ownership laws under the state in which the purported owner is a citizen (eg, Austrian
        law)
-can also be consulted if people predict disaster for certain interpretations of law, so court can
say, “Look, the Germans did it this way, and there country still exists”

-Use of Foreign Law in interpreting the Const:
       -Scalia says the only “relevant” foreign law for this is the 18th century English law that
       informed the Framers
       -Modern foreign law is irrelevant and can never be relevant to an interpretation of the US
       Const

-If Americans want to change the Const, they should do it through the democratic process, not by
delegating the duty to “wise” judges to read changes into the Const.

-Reasons that Intl Law will be used in Living Const opinions:
      1. because people who believe in a living const. tend to think that the world should be
      governed by a generally applicable law, so they will look to human rights, etc for
      guidance
      2. because it is there and provides a source of authority to support one’s philosophy
      3. because it vastly increases the scope of a judge’s discretion because the judge now has



                                                                                                     50
so many more tools at its disposal
      -problem is that judges selectively consult foreign law that supports their opinion,
      and ignore foreign law that goes against them




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