Federal Courts Outline

Federal Courts and the Federal System
Prof. Allen

I. Introduction to the Court System
A. The Structure of Federal Jurisdiction

1. Four tiers
a. “Article I” judges: includes Administrative judges, bankruptcy judges, and magistrate judges who do not have life tenure.
b. District Court
c. Appellate Court
d. Supreme Court
2. Differences between state and federal courts (potentially)
a. Venue rules
b. Procedural rules
c. Legal Culture
d. The issues in the case
e. Tenure
3. Burt Neuborne, The Myth of Parity
a. Civil liberties litigator, who said that federal courts were so much better than state courts because of their competence and removal from local politics.
4. Richard H. Fallon Jr., The Ideologies of Federal Courts Law
a. The Federalist Model
1. Four premises that define the framework within which individual questions are answered.
a. Within the constitutional scheme, the states retain many of the prerogatives and responsibilities, and therefore must enjoy at least some of the immunities, associated with the concept of sovereignty.
-10th and 11th Amendments ratify this.
b. State courts are constitutionally as competent as federal courts to adjudicate federal issues and to award remedies necessary to vindicate federal constitutional norms.
-“Madisonian Compomise”: left the creation of lower federal courts to the discretion of Congress.
c. Absent clear evidence to the contrary, it should be presumed that Congress, in enacting jurisdictional legislation, regards the state courts as being as competent as federal courts to adjudicate federal issues fairly and expeditiously.
d. Absent clear evidence to the contrary, federal judges should assume that state courts are as fair and competent as federal courts in the enforcement of federal constitutional norms and should craft doctrines of judge-made law accordingly.
b. The Nationalist Model
1. Four premises:
a. The Constitution embodies a strong conception of national supremacy that exalts federal interests, especially the federal interest in the effective enforcement of constitutional rights, above asserted state sovereignty interests.
b. The Constitution contemplates a special role for the federal judiciary, different in kind from that assigned to state courts, in ensuring the supremacy of national authority.
c. Absent clear evidence of contrary legislative intent, there should be a presumption in the construction of jurisdictional statutes that Congress generally legislates sympathetically to federal rights by authorizing easy access, as of right, to the lower federal courts.
d. Absent clear evidence to the contrary, federal judges should assume that federal courts are likely to be more prompt and effective than state courts in protecting federal constitutional rights, and they should craft doctrines of judge-made law that permit the federal courts to act as the presumptively available enforcers of constitutional norms.
5. Michael Wells, Rhetoric and Reality in the Law of Federal Courts: Prof. Fallon’s faulty premise
a. Fallon’s thesis is wrong. The conflict and contradiction in this area rest on politics rather than conflicting “deep structures of understanding” of the federal system.
b. Look at the shifts in allegiance over history, depending upon who the rules favored. Both liberals and conservatives view the allocation decision as an opportunity to pursue substantive ends and tailor their jurisdictional theories accordingly.
6. Judith Resnik, Rereading “The Federal Courts”: Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century.
a. The rise in numbers and importance of Article I judges requires a new look at the federal system.
7. Federal Jurisdiction
A. A Brief History of Federal Jurisdiction
1. The authority to create lower federal courts was the “Madisonian Compromise” between those (“Nationalists”) who believed it crucial to have national courts to enforce national law and those (“Federalists”) who wanted to leave the enforcement of national law to the existing state courts.
2. The law of federal jurisdiction has been structured by the interaction of two concerns:
a. A concern for centralization vs. localism
b. A concern for whether Congress or the Supreme Court has greater responsibility for determining the degree of centralization or localism.
3. These two dimensions create four possibilities, which might map on to the history of federal jurisdiction in this way.
a. Congress has greater responsibility, and acts in a localistic way.
b. Congress has greater responsibility, and acts in a centralizing way.
c. The Supreme Court has greater responsibility and acts in a centralizing way.
d. The Supreme court has greater responsibility and acts in a localistic way.
8. Thomas E. Baker, A View to the Future of Judicial Federalism: “Neither out far nor in deep”.
a. Rise in litigation will probably cause a rise in adr and other forms of dispute resolution.
Two concepts:
Federalism and Separation of Powers

Our two soveriegn court systems are a unique court system

Condensed history of the federal courts
Articles of Confederation
no national courts
any state can veto
-very weak

All the state courts were functioning at the time the Constitutional Congress was meeting in secret. There was unanimous consensus at the beginning that a federal court system was necessary. No one knows exactly why this was a consensus, but it may lead to a view of the founders perception at the time.

Madisonian Compromise- There will be a supreme court. They couldn’t agree on lower federal courts, so he leaves it up to Congress. With almost no debate, Congress created the lower federal courts in one of their first acts. Federal subject matter jurisdiction was also an issue involved in the Madisonian compromise.

There must be one justice at least on the court…the constitution contemplates a chief justice (b/c they have to preside over impeachment hearings). It was otherwise silent on the number of justices.
Started at 6, peaked at 10, back down to 9.

“Shall be vested” – who vests? Looking at Article 1 and 2 as well, it seems this is parallel language….this would indicate that it is the Constitution itself doing the vesting.

maubary
private rights model- judicial power has got to be to decide cases

salary and tenure is guaranteed in Art. III, Sec. 1

Fallon’s article
Federalist vs. Nationalists

Parity debate- are the state courts as good as the federal courts?
(Usually concerns enforcement of rights)

Three Periods of History as relating to three constitutional moments
Period 1: 1789-Reconstruction (adoption of 13, 14, 15th Amendments, circa 1870’s)
bill of rights wasn’t applicable to the states
Period 2: Reconstruction – New Deal (circa 1930’s)
rights were applicable to the states
Period 3: New Deal – Present
Administrative state

Structure of the Federal Judiciary
roughly a triangle
Supreme Court at the pyramid w/ 9 justices
(no mandatory appellate jurisdiction. Used to be appeals, which required a court to hear it, now they decide by writ which to hear).
next down is the Circuit Court of Appeals
next is the Federal District Courts
-these are all Article III judges
At the bottom of the pyramid is the non-Article III adjudicators

off to the side we have state courts

II. Congress’ Power to Regulate Jurisdiction
A. Intro
1. Akhil Amar, The Two-Tiered Structure of the Judiciary Act of 1789 (1990).
a. Amar concludes that Congress has the power to distribute “cases” – including federal question cases – between the lower federal courts and the Supreme Court, and therefore has the power to either:
(1) deny lower federal courts jurisdiction over such cases while preserving Supreme Court appellate review of them when they are initiated in state court, or
(2) deny Supreme Court appellate jurisdiction so long as some lower federal court has jurisdiction.
b. Congress has broader power to regulate jurisdiction over “controversies”, because the constitutional text does not require that the judicial power extend to “all” controversies.
c. The authors find this to not be the case and offer evidence tending to show that Congress has much greater power than Amar says and could have the power to deny appellate review by the Supreme Court without conferring jurisdiction to lower federal courts.
B. Regulating Lower Court Jurisdiction
1. Sheldon v. Sill
-One guy loaned money to another and took a mortgage in return. he then assigned this mortgage to someone out of state. That person sought to collect in federal court even though the Judiciary Act of 1789 provided that lower federal courts could not take “cognizance of any suit to recover the contents of any promissory note…in favor of as assignee, unless a suit may have been prosecuted in such court to recover the contents, if not assignment had been made.”
a. The Supreme Court held that the lower federal court had no jurisdiction.
b. Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.
c. In Turner v. Bank of North America, the court said, “The political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress: and Congress is not bound to enlarge the jurisdiction of the Federal Courts to every subject, in every form which the Constitution might warrant.”
d. Since that time, the same doctrine has been frequently asserted by this court.
2. “Clear Statement” Requirement: Statutes said to bar review of constitutional claims must do so clearly.
-The Court has rarely found the requirement satisfied.
3. When a case involving the Act reached the Supreme Court in 1938, the Court said, “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the U.S.”
Notes
Congress’s Power to Regulate Jurisdiction
might be a value to uncertainty
Inferior federal courts
Congress has unlimited power to bestow jurisdiction besides the 9 in the constitution.
a jurisdictional stripping statute usually has substantive end
Congress has plenary power to confer jurisdiction to lower federal courts.
logic behind decision: b/c Congress can create the lower federal courts (a larger power), they can then change or create their jurisdiction (a smaller power).
Textual based arguments on Article III
Internal v. External Argument
Internal Argument that Congress should not have power to change procedure: Article III was very clear that they didn’t need to establish the lower clause, but if they did the vesting clause comes in.
External Limits- Due process argument and Equal Protection
Due Process argument- depends on some assumptions: state courts will not enforce the constitution, b/c if they do there won’t be a due process problem.
Equal Protection argument- still need to assume that the state court isn’t going to provide constitutional protection.

Arguments that times have changed and we need federal courts
history of federal courts
modern litigation
supreme court has no appellate jurisdiction in fact (they can pick and choose)
[the premise of this argument is that state courts are inadequate]

C. Regulating Supreme Court Jurisdiction
1. Ex Parte McCardle
-Southern newspaper man is jailed for saying bad things about reconstruction. Charged and jailed for libel before a military tribunal. Congress passed a law saying Supreme Court had jurisdiction to hear appeals from denials of habeas corpus, like McCardle. Before the case could be heard, the president vetoed the Act and the Supreme Court then had to decide whether the repeal of its appellate jurisdiction applied to McCardle’s case and if so, whether the repeal was constitutional.
a. It is quite true, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, conferred by the Constitution. But it is conferred with such exceptions and under such regulations as Congress shall make.”
b. Repealing the act and not allowing the Sup. Ct. to hear such a case rightly fell within “such exceptions and under such regulations as Congress shall make.”
Notes on Ex Parte McCardell
In the judiciary act of 1789, one provision provide jurisdiction for the federal courts to provide writs of habeus corpus for federal prisoners.
New statute enacted on 2/5/1867- Federal courts have habeus corpus jurisdiction for federal and state prisoners. In march of that yr. congress passes the military reconstruction act. (this was a highly suspect controversial law that ppl thought might be unconstitutional).
3 days after oral argument starts, congress repeals the new statute enacted on 2/5/1867. Sup. Ct. dismisses the case for want of jurisdiction. says congress has power under exceptions clause to affect appellate jurisdiction of the Court and this is part of it. Right at the end of the opinion, there is a statement by the chief justice which says, “counsel seems to have supposed…..” basically to the extent that congress didn’t technically repeal the judiciary act of 1789 and therefore they said they still had jurisdiction. The court never decides whether the military reconstruction act was unconstitutional b/c the uphold the conviction on the basis of procedure. The Court maintains their power of jurisdiction though. Wouldn’t congress repeal the judiciary act? No, they don’t…don’t seem to want to force the Court’s hand….

McCardell can be read broadly that Congress can get rid of the appellate jurisdiction. another way to read it is that McCardell is fine, precisely b/c Congress had not totally closed off all appeals to the Court. This is the narrow view. This deals with Congress’ power to close off routes to the Court, as long as they don’t close off all routes. This is the last time congress talks about the exceptions clause.

ADEPA- an act in 1996. This act said for a state prisoner to file a writ of habeus corpus, you first had to file w/ the Circuit Ct. of appeals, a request to file in district court. Couldn’t file w/ district court until you had this ok from the circuit ct. The denial of a certificate from a circuit ct. of appeals, is not appealable to the sup. ct. Was this constitutional? Ct. sidesteps this by saying that you could file for a writ of H.C. to one supreme court justice (as provided in the judiciary act of 1789) – so therefore, Congress didn’t close all routes to the Sup. Ct.’s appellate jurisdiction.

2. United States v. Klein
-During Reconstruction, the North was taking land from those who had helped the rebellion. Couldn’t get it back unless you were pardoned or could otherwise prove your loyalty to the Union. Klein was trying to get land back. In the appropriation act of 1870, Congress provided that a pardon was evidence that a person was part of the rebellion and couldn’t get land back. Congress declared the act unconstitutional.
a. If the Act in question simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make “such exceptions from the appellate jurisdiction” as should seem to it expedient.
b. It seems to use that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.
c. But the court is forbidden to give the effect to evidence, which in its own judgement, such evidence should have, and is directed to give it an effect precisely contrary….We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.
d. The two dissenting judges agreed with the Court’s argument that the 1870 act was unconstitutional “so far as it attempts to prescribe to the judiciary the effect to be given to an act of pardon or amnesty by the President.”
3. A jurisdiction-restricting statute can be unconstitutional because it violates specific substantive constitutional provisions.
4. Klein states that Congress acted unconstitutionally in “prescribing a rule for the decision of a cause in a particular way.”
5. Henry Hart, The Power of Congress to Limit the Jurisdiction of the Federal Courts: An Exercise in Dialectic.
a. “The measure is simply that the exceptions must not be such as will destroy the essential role of the Supreme Court in the constitutional plan.”
b. What, though, is that “essential role”?
c. Three candidates commonly suggested:
(1) Preserving a system of ordered liberty under law;
(2) Maintaining uniformity in the interpretation of federal law;
(3) Maintaining the supremacy of federal law.
Restrictions on lower federal courts
Sheldon v. Sill- don’t appear to be any restrictions
Congress can’t touch original jurisdiction of the supreme ct. but appellate jurisdiction can be changed through the exceptions and regulations clause.
what does it mean? Congress can go very far, but probably cannot close off all avenues to the supreme court.
Exceptions Clause
Essential functions limitation
Congress, you get all sorts of authority, except in order to maintain the 3 co-equal branches of govt., the exceptions clause cannot be used to take away a core function of the judicial branch.
can’t use the exceptions clause to take away a core function of the judicial branch
ie. the power of judicial review.
impossible to find language to this support. There is only circumstantial evidence, such as the supremecy clause. may be able to find some support, by looking at Klein.
Klein
Can get land back by showing you haven’t aided or abetted the Confederation.
A pardon meant you didn’t aid the Confederation at that time and you could then get your land back.
Congress passes a statute: no pardon is admissible (rule of evidence), in fact, getting a pardon is proof that you did aid the Confederacy, Sup. Ct. should dismiss for want of appellate jurisdiction if decision below was based on a pardon; and it should remand the case to the lower claims ct. for dismissal.
The court strikes down Klein, but why? One way to look at this case, is to read it as saying that Congress can’t tell a court who is going to win. Thats not true, the court said Congress can’t say who’s going to win w/o amending substantive law. Another way to look at it, is that the U.S. had a fair fight and loss and then Congress changes it to make the U.S. win. Once the U.S. waives soveriegn immunity it cant take it back.
Broad idea: Can’t say who wins w/o amending substantive law.
Narrower idea: Soveriegn immunity issue.
Narrow idea: Pardon power (Congress can’t dictate meaning of a pardon) On top of this is the idea that Congress can’t take the Court out of being the umpire in a fight between the executive and legislative branch.
But it can’t mean that the exceptions clause is what it says it means b/c the case WAS decided how it was. Otherwise klein could’ve came out the other way if Congress could do that under the exceptions clause.

Plaut
Congress cannot order the reopening of a case in which the Article III courts have issued a final judgement and all appeals are gone. (Justice Scalia). The Court has the power to DECIDE a case. That means that it is final! (This case is not in our reading)
damages
Wheeling Bridge case
injunction ordered to keep company from building a bridge.
Congress called the road a post road and ordered its stay. Ct. says ok, b/c injunction is prospective relief and since they changed the substantive law its ok for the future relief….

Both cases are still good law. The issue in Plaut was damages, it was backwardlooking. Wheeling bridge was an injunction (remedy in equity) and since it was forward looking, changing the substantive law was effective.

Once the court reaches finality, you cannot order the Court to undermine the finality of that article III decision. But as far as it looks forward, you can change substantive law and affect that decision (retroactively).

Robertson
Differed the case from Klein, b/c they amended substantive law. Plaintiff’s say they are amending the law for one case in particular…..court says that it wasn’t alleged in the complaint to the circuit ct. below and therefore does not address the claim. Leaves it open whether or not Congress can change substantive law to affect one case.

Amar/Story
Theory: fed. ct.’s have a mandatory place in the structure of jurisdiction. Concerned w/ uniformity and federal ability to have a say in the law.

Problem with Amar/Story:
Tarble’s case: St. ct. can’t order the release of a fed. prisoner. what if Congress made it to where no fed ct. could hear that kind of case. Would state ct. be used? of course…

Test out these previous cases and what they mean against two things. First, Terry Shaivo.
How to attack the statute on Constitutional Grounds:
Removal of res judicata defense
-can’t treat state courts like that. lack of respect for them.
Birch cites Klein.

Military Commission Problem

Klein – w/o making or changing some substantive law; Congress cannot dictate the outcome of a case
Plout- once the judicial dept. has finally spoken w/ respect to past activity, thats it, Congress cant do anything to reopen an Article III judgement. compare this with the wheeling bridge case- which said that if substantive law is changed and an injunction seeking forward relief.
Robertson- even if Congress amednds substantive law so much that it only affects one case, it doesn’t run afoul of Klein, we are going to find it unconstitutional on another basis.

Military Commission Problem
W/ respect to which entities does the restriction apply?
U.S. Sup. Ct.
Inferior Fed. Cts.
State Cts.
Foreign Cts.
International Tribunals
haven’t eliminated all processes.

Restriction on the Inferior Federal Courts- always going to want to talk about Sheldon v. Sill (the power to create encompasses the power to bestow or restrict jurisdiction on those courts- can’t give more but you can give less). Court has been consistent w/ this principle. This in many respects shuts down the internal arguments. in other words, Sheldon says there is nothing in Article II to restrict jurisdiction for the inferior fed. cts. may lead to external (due process etc., but this is later when you combine all the courts together and discuss…. Sheldon is pretty much black letter law.

Then might move to discuss the Supreme Court. We’ve talked about the “exceptions clause” and of course in that context you have to think about McCardle and Yerger and Klein…what does this clause really mean. McCardle says it means what it says pretty broadly, but its not like Sheldon (not that extreme). Yerger seems to cast doubt on such a broad reading, rather just cutti