Federal Courts Outline Part 1

1. INTRODUCTION Class 1: i. ii. iii. U.S. Const., Art. III Casebook pp. 1-47 Lee, Article IX, Article III, and The First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792, 89 Ford. L. Rev. 1895 (2021) (Brightspace) First Judiciary Act of 1789 = Congress immediately began to establish the federal judiciary. Act is given quasi-constitutional status by Hart & Wechsler b/c so many of the framers participated. Taken as statement of framers’ original view of Constitution. (1) Creation of courts = Established SCT + two systems of lower courts (a) SCT = comprised of chief justice and five other justices. (b) DCT= trial courts (c) Circuit courts = Circuit courts were trial courts with limited appellate responsibilities. No circuit court judges, SCT and district court judges rode circuit. (2) Grant of jurisdiction (a) DCT = Heard largely diversity and admiralty cases as original matters. Also had power to hear suits by federal government and cases involving federal crimes. No appellate power. No federal question jurisdiction (except criminal cases). (b) Circuit Courts = Original jurisdiction + appellate review of final district court decisions in civil cases where amount in controversy > $50 and in admiralty and maritime cases where amount in controversy > $300. (c) SCT = Original jurisdiction tracked language of Art. III, § 2 (ambassadors, state as party). Appellate jurisdiction was as follows:  Review in civil cases > $2000  Review of state court decisions where federal claim lost (either by striking federal law as unconstitutional or by upholding state laws against claim of unconstitutionality) (3) Problems    Federal courts were hamstrung by lack of appellate jurisdiction Caseload grew with growth of interstate transportation Civil War resulted in a lot of new federal legislation 2. FEDERAL QUESTION JURISDICTION Federal Question Jurisdiction = During the Reconstruction Era, the legislature was busy churning out new civil rights legislation and creating administrative agencies to help enforce its new laws. There was a concomitant enlargement of the court system. In 1867, Congress enlarged habeas corpus jurisdiction. And federal question jurisdiction was created in 1875. The resulting problems were:   FQJ put a big strain on the federal courts and created a massive backlog. DCTs exercised massive discretion without effective appellate review. Class 2: The Declaratory Judgment Act i. ii. iii. iv. 28 U.S.C. §§ 2201, 2202 Casebook pp. 779-784, 806-815 Casebook pp. 837-849 Homework problem (Brightspace) 1. Declaratory Judgments a. General question = If a party seeks an answer to a federal question under a federal or state declaratory judgment act, is there federal question jurisdiction? b. General answer = No. In a declaratory judgment suit, § 1331 jurisdiction is available only if, in the underlying coercive action, the federal issue would appear on the face of the well-pleaded complaint. c. Federal declaratory judgments Skelly Oil v. Phillips Petroleum Co. (1950, p. 940) Skelly and Phillips had contract for sale of gas. K entitled Skelly to terminate K at any time by Dec. 1, 1946, if FPC had not yet issue a certain certificate to the 3d party to whom Phillips intended to sell the gas. FPC informed 3d party on Nov. 30 that it would issue certificate, but did not do so until Dec. 2. By this time, Skelly had already notified Phillips of decision to terminate K. Phillips brought declaratory judgment under federal Declaratory Judgment Act § 2201 seeking declaration that K was still in effect. SCT said no jurisdiction. (1) Federal declaratory judgment act only procedural = SCT held that § 2201 was only procedural—it doesn’t create jurisdiction. (2) No FQJ unless federal Q otherwise would appear on well-pleaded complaint = In a declaratory judgment action, there is no jurisdiction under § 1331 unless, in a traditional coercive action, a federal question would appear on the face of the well-pleaded complaint. If, but for the declaratory judgment action, the federal issue would arise by way of defense, there is no jurisdiction under Mottley. Applied to facts = In this case, the underlying coercive action would have been under state law. Phillips would have sued Skelly for breach of K, and the validity of the federal certificate would have come up by way of defense. 2. 28 USC § 1331 = “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the US…” Despite the fact that the language tracks Article III, it has been given a much narrower interpretation. 3. The Well-Pleaded Complaint Rule Louisville & Nashville R. Co. v. Mottley (1908, p. 907) Husband and wife brought suit for specific performance of K against RR. K provided that they would release RR from all claims arising from accident in return for free passes on RR. Congress passes law forbidding the giving of free passes. RR refused to perform on K. s alleged that act did not apply retroactively to their K and that, if it did, it constituted a taking of property under the 5th amendment. a. Federal question must appear on face of complaint = SCT held that, in order for a suit to arise under the Constitution and laws of the US, the  must show on his wellpleaded complaint that his c/a is based upon the Constitution or those laws. It is not enough that , as here, alleges some anticipated defense to his c/a and asserts that the defense is invalidated by the Constitution. b. Against the rule (1) Rule not consistent with text of § 1331 = The language of the statute tracks the language of Article III. Wouldn’t this mean that Congress intended to grant federal courts the full scope of arising under jurisdiction? Indeed, the legislative history indicates that § 1331 jurisdiction was meant to be coterminous with Article III. (2) Does not serve traditional goals of federal jurisdiction = The rule does not advance the goals of federal jurisdiction—uniformity, supremacy, and sympathy —b/c it refuses federal jurisdiction based upon federal defenses. How a state defines its c/a is dispositive of whether or not there is jurisdiction, and this ignores how important the federal defense may be. c. Supporting the rule (1) Timing = Allows court to resolve the jurisdictional issue as early as possible in the litigation. BUT what’s the big deal about waiting for the answer?  has 30 days to remove anyway. (2) Indicates likelihood that federal question will be reached = Another rationale for the rule is that it supports jurisdiction only in those cases where the federal issue is likely to be litigated. BUT is that really true? Sometimes the federal defense will necessarily be raised b/c it’s what’s dispositive. (3) Federal claims are the most important federal questions = STUPID. States don’t always allocate important issues to  and unimportant ones to No one thinks about it this way. (4) Administrability = The rule avoids making the court make predictions about what claims will be raised and what claims won’t. BUT the rule is not as easy to administer as everyone thinks. SCT basically has to resolve m/d when making the jurisdictional inquiry. Alternative of removal = As an alternative to the Mottley rule, allow  to remove once he’s raised a valid federal defense. BUT Posner says that it’s too easy to allege a federal defense and cause delay, and we don’t want to have to rely on Rule 11 sanctions to deal with the problem. Just stick w/ Mottley Class 3: Implied Rights of Action i. Casebook pp. 723-747 a. Examining congressional intent (1) Cort v. Ash (1975, p. 830) Issue was whether a civil c/a existed under a criminal statute prohibiting corporations from making contributions in connection w/ any presidential campaign. (a) Four-part test for whether to imply private right of action: (i) Intended beneficiary of statute = Does the statute create a right on behalf of ? Look to see if  is a member of a special class of beneficiaries for which the statute was intended. (ii) Legislative history = Does the legislative history indicate that Congress envisioned that the statute would be enforced through a private right of action? (iii) Statutory purpose = Would a court-created remedy be consistent w/ the underlying purpose of the legislative scheme? Will a private remedy compliment the scheme or undermine it? (iv) Federalism = Is the implication of a federal remedy inappropriate b/c the subject matter is an area of regulation traditionally of concern to the states? (b) Broad test = Cort was applied to allow courts to create remedies consistent w/ its common law-making powers. Congress often created statutes w/o remedies w/ the assumption that the courts would create the remedies consistent w/ their common law power. (c) Applied to facts = SCT refused to create c/a under laws regulating campaign contributions by corporations. SCT reasoned that no evidence proved that  was part of class especially benefiting from the law, that Court had no reason to believe that such actions would further the legislative scheme, and that regulation of corporations was generally left to the states. (2) Cannon v. University of Chicago (1979, p. 830) Involved Title IX of Education Amendments of 1972, which prohibited discrimination by educational institutions on basis of sex. (a) Majority = Using Cort’s 4-part test, SCT implied private right of action. SCT said that it was appropriate to create a private right of action under the statute b/c , who claimed that she had been denied to medical school b/c of her gender, was part of the social class designed to benefit from the law. SCT also found that Congress intended a broad remedial scheme, including lawsuits, and that private actions would effectuate the statute’s objective of ending discrimination. (b) Concurrence = Rehnquist points out that there’s a difference b/w state courts exercising their common law-making power, and federal courts doing the same. State courts are courts of general jurisdiction and they therefore have broad common law-making power. Federal courts, on the other hand, are courts of limited jurisdiction. They necessarily have less power. (c) Dissent = Powell wrote a sharp dissent, and it eventually won out (see Touche below): (i) (ii) Inconsistent with SOP = Allowing the judiciary to imply c/a is completely inconsistent w/ separation of powers. Congress alone has the authority to create c/a, and courts should establish them only in the rarest of circumstances. Require clear congressional intent = Powell stated that federal courts should not infer a private c/a, absent “the most compelling evidence of affirmative congressional intent.” 3. Congressional Control Over Judicial Power Class 4: i. Casebook pp. 295-326 1. Original Jurisdiction = Article III contains mandatory language about the SCT that has never been read to its full potential. “The judicial power of the United States shall be vested in one SCT…In all cases affecting ambassadors, other public ministers and consuls, and those in which the state shall be a party, the SCT shall have original jurisdiction.” a. No legislative grant required = Art. III Implies that SCT exists w/o authorizing legislation, but that has never happened. b. Mandatory jurisdiction in specific cases = Assumes mandatory original jurisdiction in certain cases (ambassadors, state as party), but Judiciary Act of 1789 did not extend jurisdiction to all of the “shalls”:   No FQJ No jurisdiction over state claims unless federal issue lost c. Concurrent jurisdiction for states = Congress has given states concurrent jurisdiction over much of SCT’s original jurisdiction 2. Appellate Jurisdiction a. Article III Text = “The SCT shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.” b. Three theories = There are three views on Congress’s power under the exceptions clause: (1) “Plenary power” reading = The unambiguous language of Art. III authorizes Congress to create exceptions to SCT appellate jurisdiction. And the framers evidenced their desire for congressional control over the judicial power in the 1789 Act—they gave no FQJ, limited jurisdiction over state claims to cases where federal issue lost, and imposed amount in controversy requirement. Congress thus has plenary power over the appellate jurisdiction of SCT. (2) “Essential role” reading = Hart argues that, despite the broad reading that could be given to the text of the exceptions clause, Congress cannot use its power under it in a manner that would destroy the essential role of the SCT in the constitutional plan. (3) Justice Story’s reading = Congress is required to vest the whole judicial power somewhere. If Congress removes SCT’s appellate jurisdiction, then it would have an obligation to put the power in lower federal courts as original jurisdiction. In other words, Congress would have no choice but to create the lower federal courts. Nobody buys this view. c. In support of “plenary power” reading (1) Ex Parte McCardle (1869, p. 356) After Civil War, Congress set up martial law to protect newly freed slaves and enacted Military Reconstruction Act of 1867. The 1867 Act expanded habeas corpus jurisdiction to permit review of detainment by both federal and state officials. An earlier habeas statute restricted jurisdiction to the review of federal decisions. McCardle was arrested for writing editorials which criticized Reconstruction. He obtained habeas review under the 1867 Act, and argued that military control was unconstitutional. SCT heard argument and, while decision was pending, Congress repealed portion of 1867 Act expanding habeas jurisdiction. (a) Valid use of exceptions power = SCT dismisses McCardle’s case once Congress took away its jurisdiction. It didn’t matter that the case had already been argued, or that the repeal had the effect of preventing SCT from reviewing a constitutional question. (b) Congressional motives irrelevant = It also didn’t matter that Congress had acted for the express purpose of taking McCardle’s case away from SCT to ensure that military control could continue. SCT stated: “We are not at liberty to inquire into the motives of the legislature. We can only examine its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.” (2) Limitations of McCardle = Opponents of the plenary power model point out that McCardle does not have to be read so broadly. (a) Another statutory basis for jurisdiction remained intact = SCT emphasized in its decision that Congress had not withdrawn its habeas jurisdiction entirely. SCT still had habeas review under 1789 Act, and McCardle had not plead the 1789 Act as a basis for jurisdiction. (b) SCT wanted to avoid decision on controversial issue = The Court would have done just about anything to avoid having to rule on the constitutionality of Reconstruction. d. In support of “essential role” reading (1) United States v. Klein (1871, p. 367) Post-civil war. Union seized Klein’s cotton (marked as confederate property) and sold it. Federal act allowed Southern merchants to recover proceeds from sold property if they could demonstrate their loyalty to the union. Klein’s cotton had served as surety for confederate bonds, but he took an oath of loyalty to the union and received a pardon from Lincoln. Court of Claims held that the pardon was prima facie evidence of loyalty and held that he was entitled to the proceeds from the sale. Congress was pissed, and passed a new Act which accepted pardons as conclusive proof of disloyalty to the Union. Where the Court of Claims had already rendered a judgment, the Act provided that SCT had jurisdiction only to dismiss the case for lack of jurisdiction (it could not affirm the claims court holding). SCT held Act unconstitutional. (a) Congress cannot use exceptions power to achieve substantive ends = SCT recognized Congress’s power under the exceptions clause, but held that Congress cannot use that power to direct a result in a particular case. (b) Congressional motives are relevant = A forbidden purpose is not OK. Jurisdiction-stripping legislation that is used as a means to and end that is itself constitutionally impermissible is not a valid exercise of the exceptions power. (c) Separation of powers violated = Here, SOP was also violated since the jurisdiction-stripping devised subverted the president’s pardon power. (2) Limitations of Klein = According to supporters of the plenary power model, Klein establishes only that Congress may not restrict SCT jurisdiction in a manner that violates other constitutional provisions. The problem in Klein was not Congress’s use of jurisdiction-stripping to achieve substantive ends, but the infringement on executive power under Art. II. United States v. Sioux (1980, p. 369) In 1942, Sioux tribe sued US for taking tribal lands. They lost. Then US views changed, there was desire to compensate the tribes. But Sioux couldn’t sue again b/c of res judicata. So Congress passed act in 1978 lifting res judicata bars from Indian claims cases. Government attorneys argued that this violated Klein—the legislation would prescribe a rule of decision and take away SCT power. SCT disagreed and upheld legislation. (3) Klein redefined = Congress has plenary power over the appellate jurisdiction of SCT so long as it doesn’t use its power to expand its own enumerated power or to grab power from the other branches. Only rules that impinge on other Constitutional provisions will be impermissible. e. Policy arguments (1) Democracy requires the “plenary power” reading = Congressional power is an essential democratic check on the power of an unelected judiciary. BUT, a few problems: (a) We need a majoritarian check = That argument misdefines democracy. American democracy includes substantive values, such as those contained in the Constitution. The Constitution’s ultimate purpose is to protect crucial values from majority rule, and SCT’s primary function is to protect individuals from the tyranny of the majority. (b) We don’t want to freeze existing law = If we allow Congress to restrict SCT jurisdiction when it wants, we don’t achieve the goal of providing a majoritarian check on the federal judiciary. Prior decisions will remain in effect, and states will be bound by them under the Supremacy Clause. (c) We don’t want to give states the go-ahead to disregard the Constitution = A limit on SCT power may be perceived by state legislatures and courts as an open invitation to adopt laws disregarding SCT precedent. Without SCT review, state decisions would be final. (2) Federalism and separation of powers support the “essential role” reading = Allowing Congress to undermine the court’s essential function would violate SOP. We need SCT to ensure the supremacy of federal law and to ensure the uniform application and enforcement of the Constitution. And we need a check on the legislative process. BUT, one can argue that the exceptions power is as much a part of the constitutional structure as SOP and federalism. But then this begs the question. f. Could Congress eliminate SCT appellate power, if it left the lower federal courts intact? (1) Uniformity = If an essential function of SCT is to secure the uniformity of federal law, then this would destroy it. There would only be intra-circuit uniformity. BUT, tons of intra-circuit conflicts go unresolved. A system of discretionary review tolerates the differences. (2) Supremacy = The supremacy of federal law also would be threatened. When you deprive SCT of jurisdiction, you give states the go-ahead to disavow the Constitution. BUT, this assumes that states will undermine federal rights. (3) Precedent (a) Marbury = Our system of government requires SCT review, plain and simple. It is the function of SCT to say what the Constitution means. So system is no good. (b) McCardle = Congress has the power to limit SCT appellate review where other federal remedies exist. This system would be OK, b/c a federal judicial forum (in DCTs and CTAs) still exists. (c) Klein = Congress cannot enlarge its own powers to reach impermissible results and cannot usurp power from the other branches. Congress isn’t doing that here, since there is still CTA review. System is OK, unless Congress knows that SCT will affirm a constitutional right and it is withdrawing jurisdiction to prevent this. A. Congressional Power to Withdraw All Federal Jurisdiction 1. General question = Can Congress remove all federal jurisdiction, leaving only state courts to redress litigants’ wrongs? 2. Article III argument = Article III provides that the judicial power SHALL be vested in one Supreme Court and that it SHALL extend to all cases and controversies arising under the Constitution. Thus, the Constitution, not Congress, is the creator of the federal judiciary. Limitations a. Madisonian compromise = Congress had complete discretion whether or not to create lower federal courts. Only Justice Story though that Congress was bound to vest the entire Article III power in federal courts. Only he thought that both the original and appellate power of the judiciary had to vest somewhere. b. Statutory limitations = Despite the mandatory language of Article III, it has always been assumed that there has to be a positive statutory grant of power to the judiciary. And the Judiciary Act of 1789 did not vest the full constitutional powers in the judiciary—there was no FQJ and SCT had appellate jurisdiction over state cases only where the federal claim lost. c. Exceptions clause = There is an exceptions clause in Article III—SCT shall have appellate jurisdictions with such exceptions and under such regulations as Congress shall make. The exceptions power was used early on:   No FQJ until 1875 No jurisdiction over state claims unless federal issue lost