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Federal Courts
University of Kansas School of Law
Sward, Ellen E.

Federal Jurisdiction Outline

I) Introduction
A) Broad themes of Federal Jurisdiction
1) Separation of powers—allocating power among the branches of the federal gov’t
2) Federalism—allocating power to federal and state courts
3) Controversial area of law, has been in flux throughout history
B) Background on history of fed courts
1) Creation of fed courts came out of 1789 Constitutional convention
(a) 8 decisions were made regarding fed courts that have implications today:
(i) Decision to create national federal courts at all
(ii) Appointment of federal judges by executive
· Proposals included election by Congress or Senate
· Having the presidential appointment makes the judges more national that they might have been
(iii) Life tenure with no reduction of salary Þ independence from the politicians appointing them
(iv) Judiciary not part of creation of laws—proposal to give a council of judges part of the veto power was defeated
(v) Federal judges not allowed to issue advisory opinions
· Basis for standing, mootness and ripeness doctrines
(vi) Assumption that judges would have the power of judicial review—not stated in the text
(vii) Congress granted power to create lower federal courts
· Gives Congress flexibility to limit the number of cases heard at state or federal courts by regulating the number of judges
· Gives a constitutional basis for the argument that Congress can limit the jurisdiction of lower federal courts
(viii) Article III turned out to be the most controversial article in the ratification process
· Controversy surrounded the need to insure jury trials and the size and jurisdiction of the fed judiciary
· Much of Bill of Rights deals with potential abuses by courts
2) Article III of the Constitution
(a) §1:
(i) Vesting clause grants power to federal courts, but says little about what this power is
· Given equally to S. Ct. and lower federal courts established by Congress
(ii) Guarantee of life tenure and irreducible salary
(b) §2 lists the categories of cases or controversies that federal courts have the power to resolve (9 total)
(i) Cases (subject-based): Arising under federal laws (Federal Question), Ambassadors etc, admiralty
(ii) Controversies (party-based): US is a party, 2 or more states, citizens of different states, 3 others
· Federal question jurisdiction included civil rights cases and currently makes up about 80% of the federal docket
· Diversity cases were originally the major type of federal case, but now make up about 20% of the docket
(c) Assumptions underlying Article III
(i) No reference at all to state courts. The following assumptions have been made:
· State courts exist and can hear cases on federal laws unless Congress says otherwise
1. Only 5% of all cases are heard in federal courts
· S. Ct. can reverse state ct. decisions
· Sovereign immunity creates limits on the ability to sue government officials
3) Other highlights in development of federal courts
(a) Judiciary Act of 1789 implemented Article III
(i) Created S. Ct. with 6 justices and 16 federal district judges
(ii) Gave S. Ct. power to review state ct. decisions
(iii) Reflected understanding by many framers of what Article III meant
(iv) Created a system of circuit courts for intermediate appeals comprised of 1 district judge and 2 S. Ct. judges
(b) 1801 statute passed creating intermediate courts filled with Adams-appointed judges was immediately repealed by Jeffers

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(ii) 2 jurisdictional questions:
· Statutory—act authorizes Ct. to issue writs of mandamus to persons holding federal office
1. Marshall interprets this as giving original juris, but statute just says ct “has the power” to issue the writ.
2. Could read this as not adding to original juris, just giving the power to issue these writs—almost certainly the correct reading
3. Proper response should have been to dismiss case and direct Marbury to the district court
· Constitutional—expressio unius argument that original juris in Const was intended to be exclusive, and this act unconstitutionally attempts to add to the juris
1. Could also argue that Art III does give Congress power to allocate cases between original and appellate juris of the court
(d) Other significant issues arising from the case:
(i) It may be possible to put limits on President’s power to remove officials
· If Jefferson could have fired Marbury, there would be no case
· Assumptions is that Marbury had the legal right to serve the 5 year term as JP
1. Not an Art III judge, but not an executive officer who President should be able to fire at will
2. Essentially part of an independent regulatory commission not authorized by Const
(ii) No historical precedent for suing high government officer
Marshal concludes that sovereign immunity doesn’t preclude suits against officers who act illegally