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Federal Courts and Jurisdiction
University of San Diego School of Law
Mackay, Aimee Grace

I. THE JUDICIAL FUNCTION AND THE ROLE OF COURTS

A. THE NATURE OF THE JUDICIAL FUNCTION

Marbury v. Madison (U.S. 1803)

– rule #1: no right without a remedy
– a federal court is fundamentally a forum for those who have suffered legal injury
o corollaries:
§ judiciary can order process against executive officials (where executive’s obligation is not discretionary, i.e. political question)
§ judiciary has power to interpret Constitution – Marshall compellingly asks what is a federal judge to do if this isn’t the case?
– treated case as one of original jurisdiction
o refuses to find Congress could move some of court’s appellate juris. to original
o alternatively could maybe have been appellate (appeal from executive’s decision)
– hard questions:
o was there a Congressional statute giving jurisdiction here?
§ not clear based on Section 13 of Judiciary Act of 1789
§ could argue that Article III grants automatic judicial power to SUPCT
o did SUPCT need jurisdiction to hear the case?

Two Alternative Visions of Judicial Review

– classical model (injury model) – courts exist to remedy rights
o adjunct to this power, courts can exercise judicial review
o converse is that courts don’t issue advisory opinions
o but this doesn’t really apply to facts of Marbury
§ decision wasn’t perhaps even necessary
§ would have therefore been advisory opinion on two points:
· acts of legislature and executive are subject to judicial review
· SUPCT gets to say what Constitution means
– lawsaying model – courts get to say what Constitution means
o fundamental role of courts is as check on other branches of gov’t
o still retains requirement that there be an injury to raise the case (though courts “cheat” on this)
o how far does this power go?
§ Cooper v. Aaron [case in which Southern governor ordered the troops after SUPCT issued a civil rights case] – can the governor do this?
· no – he governs a state and states don’t have power to interpret Constitution
· yes – court’s ruling isn’t in the Constitution but is merely it’s interpretation; also governor wasn’t party to any actual case
o if other branches can’t challenge a SUPCT rule in such cases, the law would never change!
· Court ruled that once it speaks to meaning of Constitution that officials should fall into compliance, regardless of their views
§ Bowling v. Sharpe [Congress issues statute saying D.C. schools to remain segregated after Brown v. Board] – can it do this?
· are questions same as in Cooper? Is there distinction between legislative function and executive acting in enforcement?
o so what then constrains the judiciary?
§ political will

B. SUPREMACY

Correspondence between Justices

– reasons to shun advisory opinions:
o existence of concreteness/factual context
o adversarialness
o want to avoid being boxed in by hypothetical facts
o necessity

C. DIALOGUE

Clear Statement Rule

– Court uses this to decline to issue Constitutional decision absent “clear statement” evidencing Congressional intent to act a certain way
o e.g. Webster v. Doe[CIA fired Doe for being gay; SUPCT finds federal court can hear Constitutional question b/c otherwise raises “serious Const. question”] § Scalia dissent argues Congress could strip jurisdiction over this; his view is flawed because nobody has authority to violate the Constitution!
– for enumeration of avoidance canons, see p.86
– acts as a signal to the other branches cutting the distance between judicial review and putting an effective check on them
o saying the Court can review, but will back off to see what happens
– what may also be going on sometimes is court recognizing it cannot act without support
o if Court had ruled otherwise in Webster, would CIA have changed behavior?
o if Marshall issued the writ in Marbury, would anything have happened?
o Little Rock ended when the Executive Branch nationalized the guard…

II. POWERS, OBLIGATIONS, PREROGATIVES OF STATE COURTS

A. EXCLUSIVE FEDERAL JURISDICTION AND REMOVAL

Concurrent vs. Exclusive Jurisdiction

– Tafflin v. Levitt (U.S. 1990) – unless Congress expressly provides for exclusive federal jurisdiction, presumption is that state/federal courts have concurrent jurisdiction over federal law claims
o three exceptions to this general rule:
§ explicit statement in the statute (which arguably there was in Tafflin)
§ implication from legislative history (also arguably present in Tafflin)
§ incompatibility – i.e., conflict between federal/state aims that should prevent concurrent jurisdiction
· this leaves Court some room for itself to maneuver
o why else does this prong exist? if there is incompatibility, we’d expect Congress to act
· some factors/interests weighing on this analysis:

38)

– after Erie, there is no federal common law
o instead, state common law governs substantive state legal issues when heard in federal court sitting in diversity
– bases for decision:
o Rules of Decision Act – should apply to common law as well as statutes (statutory interpretation argument)
o application of Swift was causing inequity/discrimination through forum shopping
o federal law can only come from statute or the Constitution
§ Congress has no authority to grant federal courts ability to create common law
· note that there are some narrow areas in which there is federal common law, circumscribed by necessity

III. SUPREME COURT REVIEW

A. REVIEW OF STATE COURT JUDGMENTS

Jurisdiction [Four Rules]

– Rule #1: Martin v. Hunter’s Lessee – SUPCT can review decisions of highest state courts
o motivations:
§ support supremacyof federal law
§ promote uniformityof federal law
§ concern over potential biasesof state court
o support for decision:
§ everyone at Const. Convention knew this is how it would work
§ Art. III says SUPCT has jurisdiction over all cases
§ removal isn’t a response to this because:
· appeal is really just a form of removal taking place after decision but before finality
o problem w/ this thinking is it allows parties to test waters in state’s high court and appeal if they don’t like result
· then crim. defendants wouldn’t have fed. review of Const. rights
– Rule #2: Murdock v. City of Memphis – when reviewing such decisions, SUPCT will only hear federal questions
o holding otherwise would have completely altered federalism balance
§ Court unwilling to do this absent clear Congressional intent
o this is consistent with Erie which found it a non-sequitur for SUPCT to decide a state law question
§ alternative position in Murdock would raise serious questions, i.e., what does it mean for SUPCT to decide/review state law questions?