I. Judicial power and jurisdiction ...............................................................................................

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II. Congress’ power to regulate jurisdiction/judicial proceedings .............................................. 1
III. Federal question jurisdiction .............................................................................................. 3
IV. Finality ................................................................................................................................. 4
V. Non-Article III tribunals ........................................................................................................... 5
VI. Justiciability ......................................................................................................................... 6
VII. Choice of law ....................................................................................................................... 8
VIII. Implied private rights of action ........................................................................................... 9
IX. Section 1983...................................................................................................................... 10
X. Federal law in state courts .................................................................................................... 11
XI. Abstention ......................................................................................................................... 12
XII. Sovereign immunity .......................................................................................................... 13
XIII. Congress’s waivers of state sovereign immunity ............................................................. 15
XIV. Habeas corpus ................................................................................................................... 15

I. Judicial power and jurisdiction

a. In general
i. Case must fit in a constitutional and statutory grant of power and
jurisdiction
ii. Power extends to Art III list
1. Federal question
2. Diversity
3. Cases affecting foreign ministers, admiralty, US as party, suits
between states, suits between citizens of one state and another
state, citizens of same state claiming land grants by different states,
and suits involving foreigners/foreign gov’ts.
iii. Statutory grants
1. General federal question w/o amount in controversy required
(since 1980)
2. Diversity w/min amount in controversy $75k
3. Lots of specific ones
b. Supreme Court
i. OJ over cases involving foreign ministers and states as parties
1. States against each other is exclusive OJ
2. Congress can’t expand this list (Marbury) or contract it – OJ grant
is self-executing
ii. AJ over everything else subject to Congress – must affirmatively grant
c. Lower federal courts – OJ generally in district courts, AJ in circuit courts
II. Congress’ power to regulate jurisdiction/judicial proceedings
a. Jurisdiction stripping
i. In general
1. Traditional view – Congress can strip jurisdiction within its power
from all federal courts at any time, but cannot compel federal
courts to decide cases wrongly
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 i. Not a perfectly clear case for traditional view –
there was an alternate route for these habeas cases
to be heard
b. Klein – Congress can’t force courts to decide cases out of
accord with the law (e.g. by conditioning jurisdiction on
not hearing certain evidence or defenses); Congress also
can’t tell courts how to interpret preexisting law (but can
change the rule of decision mid-civil case).
c. Would allow stripping of jurisdiction over cases for
ideological reasons
2. Minority views
a. Essential functions – Congress can’t strip jurisdiction from
SCOTUS when doing so would interfere with court’s
essential role in constitutional plan – ensuring uniformity
and supremacy of federal law
b. Vesting – Congress doesn’t have the option not to vest all
the judicial power in the federal courts – really not
mainstream, Congress has never vested it all.
ii. Supreme Court
1. Congress can’t strip the OJ but can and has given SCOTUS power
to hear all their OJ cases on appeal instead, except for suits
between states
2. Congress can regulate AJ thru exceptions clause
iii. Lower federal courts
1. Congress created these so, a fortiori, can limit their ability to hear
certain cases/claims – Sheldon v. Sill
iv. State courts – Congress can give exclusive jurisdiction to federal courts
(patent, federal crimes)
b. Pending and final proceedings
i. Congress can change the underlying substantive law in a civil case while
the case is pending, or change underlying substantive law to end an
injunction once a case is final (unless the injunction is based on the
Constitution—but to the extent it isn’t required by the Constitution,
Congress can change underlying substantive law to abrogate it – Miller v.
French)
1. Can’t do that in a criminal case to the detriment of the defendant
(ex post facto clause)
2. Also can’t tell a court how to apply substantive law without
changing it
ii. Congress can’t reopen final proceedings – separation of powers requires
final judgments to stay final unless court rules allow reopening them, at a
court’s discretion – Plaut
1. Congress can waive the res judicata effect of a prior proceeding
decided in its favor – Sioux Nation
iii. Hayburn’s Case – no making federal courts issue advisory opinions
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 i. Generally Congress can’t do this. Possible exception:
1. Tidewater – it’s OK to have diversity jurisdiction for citizens of
DC and a state; no majority opinion on why. Some think DC is an
Art III state, others, Congress can use Art I power to expand fed
court jurisdiction beyond the 9 categories
ii. Theories of how Congress could do this
1. Tidewater Art I theory – would be limited by nature of the judicial
function (e.g. no advisory opinions), minimal intrusion into federal
court character, independence.
2. Protective jurisdiction (Wechsler) – Congress can send any case to
federal court, with a bare jurisdictional hook, the rule of decision
of which they could have preempted with substantive federal law
a. This guards federal interests that would otherwise be
governed by state law and not allowed in federal court
b. But this isn’t the law, and the jurisdictional provisions of
Art III are pretty clear. Frankfurter rejects PJ in his Lincoln
Mills dissent - 500
III. Federal question jurisdiction
a. Constitutional
i. Broad, any ingredient of federal law in the substantive case is sufficient
ii. However, a bare jurisdictional hook – a statute saying jurisdiction exists
over a certain case – isn’t enough
1. Lincoln Mills – jurisdictional hook in LMRA is not bare – it’s an
invitation to create federal common law out of the policy of the
labor laws, rather than decide whether arbitration should be
compelled based on state law
2. Verlinden – if there’s a substantive question of federal law
presented by the jurisdictional statute, that’s enough federal law for
constitutional “arising under” jurisdiction
iii. Osborn – case involving Bank of US got in because the bank is a federal
instrumentality, whether states can tax it is a constitutional issue of
federal-state relations
1. Congress has used this power to grant jurisdiction over cases
involving federally regulated railroads in federal court, as well as
federally chartered corporations (e.g. Red Cross)
2. Mesa v. CA – being a federal worker is not enough, need also to
assert a federal defense for removal
b. Statutory under § 1331
i. Well pleaded complaint generally must contain an issue of federal law
(Mottley); exceptions follow
ii. Embedded federal question – when CoA from state law requires
determining an issue of federal law (e.g. negligence per se based on
violation of federal law).
1. Holmes rule: look to the law that creates the cause of action, if it’s
federal then you’re good. This is a sufficient but not necessary
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 condition – misses some embedded FQs, like shell provisions –
Shoshone Mining
2. Merrell Dow – state law negligence per se, based on violation of
FDA labeling requirement that doesn’t itself provide a CoA,
doesn’t get in
3. Test is Grable:
a. Essential federal ingredient in otherwise nonfederal claim
b. Actually disputed issue of law
c. Important for resolution in a federal court (in terms of
precedential effect, not just to the parties – Gunn v.
Minton)
d. Would federal jurisdiction upset the balance of cases
between state and federal courts?
iii. Declaratory judgment test is Skelly Oil – when you see a declaratory
judgment, imagine a coercive action on the same issue between these
parties and ask whether there would be federal law in the complaint.
1. Franchise Tax Board – seems like Skelly Oil is satisfied, but
ERISA limits who can sue, there wouldn’t be a federal private
right of action in a coercive action.
2. Vaden v. Discover – federal counterclaims aren’t sufficient, federal
law has to be in plaintiff’s complaint
iv. Complete preemption – where a complaint asserts state law claims that are
completely preempted by federal law, the law in the case will essentially
be federal so FQJ is present
1. Rationale is to prevent plaintiff from not mentioning their real
claims to avoid removal
2. Avco – fact that state courts can enjoin strikes and federal courts
cannot does not preclude removal to federal court
3. Taylor – ERISA provides an exclusive federal remedy that
preempts equivalent state suits
4. Beneficial – state law usury claim completely preempted by
federal banking laws, state law is basically gone so we go into
federal court.
v. These limitations are about the removal and original jurisdiction of the
district court; SCOTUS can review any federal ingredient in a state case
provided other constitutional requirements met
IV. Finality
a. In general
i. Purpose of requiring is to keep plugging away in one place as long as
possible, rather than going up and down the courts constantly
ii. Exceptions only for some special harms
b. State cases – appeals from state courts to SCOTUS
i. State cases presenting a federal question only; usually these are state
supreme court cases, but sometimes finality is somewhere else in the state
court system
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 ii. There’s a statute here, but SCOTUS has glossed it a lot. 4 exceptions in
Cox:
1. Federal issue outcome is conclusive for the case
2. Federal issue will eventually require decision/no adequate and
independent state ground will decide the case
3. Federal issue can’t be reviewed later, e.g. suppression of
incriminating evidence in a criminal trial
4. Later review would erode a core federal policy – this is commonly
used to deal with state limits on free speech. These issues have to
end the case if decided one way and perhaps not be reviewable
once the case becomes final.
c. Federal cases – exceptions to the finality requirement for appeals from district
court
i. Preliminary injunctions and other interlocutory appeals, with leave to
appeal at discretion of judge
ii. Collateral order doctrine – you have a right to appeal without the district
judge’s permission if the order fits
1. Order must be unrelated to merits of case, unreviewable on appeal,
conclusive (but no need to be dispositive of the whole thing)
2. Cohen – determination that security not required for a shareholder
derivative action qualifies
3. Class decertification originally didn’t qualify – involves the merits,
reviewable on appeal, subject to revision – but now appeals court
has discretion to hear collateral appeals on class certification from
either side.
iii. Mandamus – very rare circumstances where a lower court does super
shady stuff
iv. No finality requirement for circuit court proceedings – we already had
finality in the district court, so SCOTUS can take it anytime if they want
V. Non-Article III tribunals
a. In general
i. We like having specialized courts with some expertise; also it’s costly to
make too many Art III judges
ii. But non-Art III adjudication seems to violate “shall be vested” in art III,
might subject judges to excessive influence by other branches
b. When and where are these legitimate?
i. Special legislative and executive areas: Congress’ power over territories,
military courts/courts martial, military commissions to try enemy
combatants
ii. Public rights cases – disputes between private parties and government over
something the government has conferred on the public – Murray’s Lessee.
You’re more likely to see administrative tribunals in these cases. These
are less core to the judicial power than traditional private rights.
iii. Adjuncts – people who help Art III judges – can only make unreviewable
findings of fact if no jurisdictional or constitutional issues are implicated
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 iv. Northern Pipeline – plurality holding 1978 Bankruptcy Act
unconstitutional, bankruptcy judges received fact deference and looked
like district judges to most
1. White’s dissent is influential – focuses on functional approach to
separation of powers: consent of parties, specialization,
control/review by other federal courts. These factors inform
Thomas and Schor
2. Majority endorses Northern Pipeline formal reading in Stern –
federal bankruptcy court can’t hear a compulsory state-law
counterclaim, since there’s no consent for the non-Art III court to
hear that, not a “particularized area of the law”, doesn’t implicate
public rights, etc.
VI. Justiciability
a. Standing – do we have the right plaintiff?
i. Purpose to preserve separation of powers – courts shouldn’t be
government watchdogs absent actual injuries
1. Efficiency also – admin state hands tons of entitlements out, we
don’t want lots of suits to ensure it’s all being done strictly by the
book
ii. Elements
1. Plaintiff has suffered concrete injury, or such is imminently
threatened
a. Allen v. Wright – very fact of government tax exemptions
to racially homogenous/perhaps discriminatory private
schools is not an injury. Mere government noncompliance
with law is not an injury; mere stigma without specific and
concrete impact is insufficient. (Courts don’t like finding
when connection between rights and injury depends on
conduct of 3rd party not before courts, like white parents
here.)
b. Clapper – need to show your data is actually being
collected to establish injury
c. Chilling effects from overbroad speech regulations are
more likely to be injury in fact
2. Injury is fairly traceable to Defendant’s conduct
3. Relief must be likely to follow from winning
iii. State court appeals to SCOTUS: Some states don’t have standing
requirements – SCOTUS can’t take the case unless the plaintiff wins, then
the defendant-petitioner has standing
iv. When Congress provides for standing for the general public
1. Lujan – private right to sue to force an agency to comply with the
Endangered Species Act doesn’t mean you’ve satisfied
actual/imminent injury. Contingent future plans being affected
doesn’t count. Nexus theories of standing – habitat/animal nexus –
rejected as too indirect.
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 2. Congress can’t confer a right to sue without a legally cognizable
injury that is also an injury in fact
3. FEC v. Akins – broad electorate informational injury suffices
4. Laidlaw – effect of polluted water, broad public suit provision
counts
5. Mass v. EPA – state coastline possible loss due to warming held
sufficient, 5-4.
6. Spokeo – pure procedural failure doesn’t give standing, real harm
required.
v. 3rd party standing
1. Organizational standing is proper when it’s the single purpose of
the organization to do something the challenged act is impeding –
Havers – or can bring a 3rd party suit asserting rights of its
members
2. Prudentially, many cases thrown out when a plaintiff is asserting
their own injury based on the violation of the rights of another
a. Singleton – exception for physicians to sue to enforce
patient’s right to abortion due to close relationship,
patients’ obstacles bringing their own suits
b. Craig v. Boren – regulations on sellers to accomplish
certain results for buyers (no buying low alcohol beer until
21 for men) give sellers standing to assert buyer rights. It’s
a weaker case when the sellers are affected but not
regulated
vi. Legislative/intergovernmental standing – when can
legislatures/legislators/branches sue?
1. Individual legislators can’t generally sue for an injury to the whole
body – Raines v. Byrd – Congress has political remedies to address
the issue raised here, bad to inject the judiciary into a partisan
dispute
a. Can only sue for vote nullification – enough plaintiffs who
all voted the same way, who lost, and if the law had
counted the votes lawfully they would have won
b. Best to wait for a private plaintiff with a better injury to
settle this issue
c. Different when the individual legislators are authorized to
sue on behalf of the body for institutional injury
2. What counts as an injury to the institution
a. Power stripping – AZ Redistricting Comm’n set up via
ballot referendum
b. Separation of powers – House v. Burwell – usurpation of
appropriations power is an injury suitable for judicial
redress, not following the statute is not
3. State standing to sue federal government

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 a. Mass v. EPA – state gets special solicitude for its own
territory, threatened by warming, and allowed to enforce
the rights of its citizens as parens patriae (this is rare)
b. US v. Texas – drivers’ license costs are an injury, not
considered to be self-inflicted even though TX could just
end the subsidies to everyone
b. Ripeness – is it the right time for a case?
i. Poe v. Ullman – declaratory challenge to state contraceptive ban not ripe –
not enforced, we’re not sure whether this is actually a problem
ii. Lyons – claim for injunction against future chokeholds is not ripe; no
showing of risk of this plaintiff being subjected to a chokehold again
iii. Powell’s concurrence in Carter (with plurality rejecting on political
question grounds) – unilateral withdrawal from treaty is an institutional
ripeness issue, Congress hasn’t exhausted its political remedies.
c. Mootness – has the issue gone away already?
i. Defendant’s voluntary cessation doesn’t moot unless there’s no reasonable
likelihood of acting against plaintiff again
ii. Cases that look moot, but where the issue is capable of repetition yet
evading review, could get decided anyway
d. Political question – is the judiciary the right branch to decide this?
i. This is about the issue, not the parties or time – removes the issue from the
judiciary full stop.
ii. Examples
1. Challenges to state government makeup under the Guarantee
Clause
2. Baker v. Carr (pg 413) rejects a political question challenge and
announces factors:
a. Text of constitution gives this issue to a political branch
b. Lack of judicially discoverable and manageable standards
for resolution of the issue
c. Plus some prudential factors (these are less mentioned in
later cases)
3. US v. Nixon – impeachment of a judge is valid whether or not the
Senate hears all the evidence en banc
4. Political gerrymandering sometimes; also often foreign affairs
(Goldwater v. Carter)
5. Not often individual rights issues, statutory interpretation
a. Zivotofsky – only recites 2 first factors from Baker, this
isn’t a political question – it’s just whether the statute is
constitutional
iii. Criticism – no consistent doctrine of how many factors are relevant;
you’re also deciding the merits of an issue (who has the power) by
rejecting a case for political-question reasons
iv. SCOTUS doesn’t use this much, lower courts more often do and get cert
denied.
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 a. Erie framework
i. No federal general common law abrogable by state legislation; federal
courts step into the shoes of state supreme courts when they decide issues
of state law
1. Purpose is federalism, avoiding forum shopping and inequitable
administration of laws, separation of legislative and judicial power
2. Klaxon – federal courts use state choice of law rules
3. Applies in diversity cases and FQJ supplemental jurisdiction
ii. Erie steps (from Clearfield Trust):
1. Check if state law would apply of its own force
a. This is most state contract/tort cases
b. Create a federal common law rule instead of using the state
law on point when:
i. Case involves rights and duties of US, and state rule
handles them in fashion hostile to federal interest
(Little Lake Misere)
ii. State law runs against a foreign policy interest
(Sabatino)
iii. Other federal interest at stake (Boyle – very
expansive reading)
2. If not, choose whether to use state law in fashioning a federal
common-law rule for decision
a. Semtek – state law can’t determine the res judicata power
of federal judgments, but borrowing the standard on a state
by state basis prevents forum shopping between state/fed
courts in the same state
b. Federal common law
i. This is federal law for purposes of federal question jurisdiction
ii. Largely governs rights and duties of US, gaps/glosses on federal statutes,
internal procedures of federal courts (e.g. prudential limits on justiciability
not required by Constitution)
1. More appropriate when rights and duties of the US are at stake –
Clearfield Trust
2. Less appropriate in suits between private parties – Parnell
3. Government discretionary functions are generally protectable with
federal common law – Boyle (contractor not liable for complying
with gov’t decision to spec out a helicopter a certain way)
iii. Court has moved away from announcing FCL rules that override state law
unless there’s a significant conflict between federal policy and state law –
not just impact on fisc or need for uniformity.
VIII. Implied private rights of action
a. Statutory
i. Test is whether Congress intended to create a private right – basically just
statutory interpretation
1. Stoneridge – no private suits for aiding/abetting a violation of SEC
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 ii. Former test for whether to create a federal common-law cause of action
was Cort v Ash:
1. Is the plaintiff a member of the class the statute is trying to protect
2. Evidence Congress wanted private enforcement
3. Would private suits help enforcement?
4. Is this area traditionally state law, implicating federalism?
b. Constitutional – Bivens claims
i. Private suits for damages against federal officials for violations of the
Constitution (not against the government itself – sovereign immunity)
1. Suits against state officials for damages go under §1983
2. Suits for injunctions are available for any federal right – Ex parte
Young
ii. Bivens v. Six Unnamed Agents
1. Private right of action for damages under 4th amd for an unlawful
search and seizure
2. Premised on notion that every right deserves a remedy; this remedy
can’t depend on state tort law of trespass, with the 4th amd
argument coming in in response to the officials’ official-act
defense
3. Black’s dissent – separation of powers (if Congress wanted this
sort of remedy they could create one), floodgates
4. Harlan’s concurrence – we’re permissive with implied rights of
action in statutes, even more justification with a hard to amend
Constitution
iii. Carlson – recognizes claim for damages against federal officials for
violation of 8th amd
iv. Only available for 4th and 8th amendments – disfavored now
IX. Section 1983
a. Cause of action for damages against any person who violates a federal right under
color of state law
i. Monroe – ‘under color’ allows for suits even when the action taken is
actually unlawful under state law, abuse of authority by officers. No
municipal liability
ii. Monell – allows municipal liability, overruling that part of Monroe, but
more than respondeat superior is necessary – need to show a policy or
custom of the municipality to win
b. Who can be sued?
i. Natural persons acting under color of state law
ii. Municipalities/subparts like school boards
iii. States are not persons – Will v. MI – avoids conflicts with state sovereign
immunity
1. We will look and see if your suit is really against the state, rather
than the official – if you want state treasury money, like restitution
or back pay, you’re suing the state; if you want damages from
official in personal capacity, you’re good.
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 c. Immunity defenses
i. These are federal common law glosses on 1983
ii. If the defendant’s performing a legislative or judicial function gave rise to
the claim, absolute immunity from damages suits (legislators also can’t be
enjoined from legislating in a certain way)
iii. Executive officials get qualified immunity – suit cannot proceed unless the
right allegedly violated was clearly established ex ante
1. Sometimes rights (and thus immunity) depend on a mental state –
need Iqbal-style plausible pleading to get past this defense
iv. Procedure – optional to decide whether a right exists before deciding
whether one was clearly established, which would help the clearly
established calculus for future cases. Pierson – agents have standing to
appeal a bad merits decision even if they win immunity; denial of
immunity subject to collateral appeal.
d. Use to enforce purely statutory rights
i. Can’t do it when Congress intends to preclude private rights of action or
provides an alternative remedy for violations of the federal statute
ii. Thiboutot – old liberal regime, lots of statutory rights – state
administration of federal programs – fit here
1. Powell dissent – this is the implied right of action problem again,
plus 1983 gives attorney’s fees
2. Picked up in Middlesex – alternative remedial scheme precludes
1983 action
3. Gonzaga v. Doe – only statutes creating individual rights are
appropriate bases for 1983 suits
iii. Treaty rights – most don’t include private rights of action. Circuit split on
whether Vienna Convention on Consular Relations notification of consular
services requirement for arrest of aliens enforceable via 1983 – purpose is
international relations, not individual rights.
X. Federal law in state courts
a. State courts are able to hear federal claims absent exclusive jurisdiction
i. Exceptions for federal exclusive jurisdiction issues – patents, ERISA,
federal crimes
ii. Tafflin – federal stuff like RICO civil cases can be in state court, since
there’s no clear intent from Congress to give federal exclusive jurisdiction
b. State courts can decide these claims in accordance with their own procedural rules
as long as those rules don’t contravene federal policy
i. Dice – FELA includes the right to have waiver validity determined by
jury, state procedural rule to the contrary cannot be applied in adjudicating
ii. Felder – 120-day notice of injury requirement for suing the state or its
officials not applicable to a 1983 claim
iii. Johnson – no interlocutory appeal of denial of qualified immunity in state
court is required by federal law
c. State authority to refuse to hear federal law claims, or to channel them into
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 i. Testa v. Katt – RI can’t just not enforce federal laws that it thinks are
penal; federal policy is RI policy under Supremacy Clause
ii. State courts can’t refuse to hear federal claims because they’re too busy or
the federal law is too hard to deal with – Mondou
iii. Also can’t put federal claims in a special court with extra limits –
Haywood.
iv. Can refuse to hear all claims e.g. between 2 out-of-staters on grounds of
forum non conveniens, which has the effect of kicking out some federal
claims
d. Supremacy Clause allows commandeering of state courts by federal law, but
anticommandeering doctrine doesn’t allow that for executive or legislative
officials
e. SCOTUS review of state court’s decisions on federal law
i. SCOTUS sits over state courts (Martin) but only as to issues of federal law
and can generally only take cases presenting a federal question (Murdock);
state supreme courts are the masters of state law
1. SCOTUS will review issues of state law to ensure it’s not being
manipulated to mess with federal rights. Indiana – IN saying a
tenure contract isn’t a contract as a matter of state law, thus no
Contracts Clause issue, is problematic and reversed by SCOTUS
2. SCOTUS can also review embedded federal issues in state law
claims.
a. Michigan v. Long – when we’re not sure whether the
decision below rested on the federal Constitution or purely
state law, we can review it to clarify what the federal law
means and remand
b. SCOTUS not getting to review these questionably federal
decisions could decrease state court accountability, allow
them to hide behind supposedly compelled interpretations
of federal law
ii. Federal question must be necessary to decide the case, i.e., no
independent/adequate state ground exists
XI. Abstention
a. Pullman
i. Federal courts refuse to consider an issue until the state courts have
considered all the state law issues
ii. Elements
1. Difficult constitutional question
2. Issue of state law that might prevent having to decide the
constitutional issue
a. State law must be unclear
iii. Can only dismiss cases requesting injunction against state – courts have
equity powers to refuse to take such equitable cases within their
jurisdiction granted by Congress. Can’t dismiss damages cases but can
maybe stay them while state proceedings run.
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 iv. Procedurally important for plaintiff in these cases to say they’re reserving
the federal claim for federal court during the state proceedings so that they
don’t get res judicata
b. Younger
i. Federal courts will refuse to enjoin ongoing state criminal proceedings,
even when suits under stuff like 1983 could get around anti-injunction act
ii. Younger case – decided based on abstention rather than anti-injunction
act; “our federalism” requires respecting state criminal proceedings
iii. Exceptions – rarely ever satisfied
1. Bad faith harassment
2. State statute/practice is patently unconstitutional in every
application
3. State procedure inadequate to raise a constitutional defense (e.g.
some administrative proceedings)
4. State waives the abstention claim
iv. Ongoing proceedings
1. Steffel – no declaratory relief when Younger would prevent an
injunction, but if state proceedings not yet going on, no abstention,
and if genuinely threatened, you have a ripe claim. Habeas is
available if the state really messes up
2. Hicks – even if federal petition filed first, if state proceedings are
ongoing before proceedings of substance in federal court,
abstention. PI is proceedings of substance, TRO is not
v. If you manage to get around Younger and get a preliminary injunction, but
eventually lose in federal court, you can be charged by the state for all
your criminal conduct during the pendency of the federal suit
vi. Younger also applies to civil proceedings brought by states that respond to
criminal conduct – Huffman, Trainor
c. Anti-Injunction Act – Statute barring federal court injunctions against state court
proceedings
i. Exceptions
1. Express authorization by another act of Congress (interpreted
broadly; e.g. § 1983 qualifies)
2. Injunction necessary in aid of jurisdiction or to protect/effectuate
judgments
3. Implied exception when the United States is the plaintiff, for
bankruptcy stay, and for in rem jurisdiction. Frankfurter in Tausey
– no more implied exceptions
ii. No state injunctions against federal proceedings or state habeas for federal
prisoners for supremacy reasons
XII. Sovereign immunity
a. Federal and state governments are immune from suit in their own state courts or
federal court unless waived
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b. Eleventh Amendment does not enact sovereign immunity but implicitly
recognizes it as an element of the structural Constitution
i. Overruled Chisholm – Georgia can be sued to recover a debt. Iredell’s
dissent – sovereign immunity is common law that would have to be
displaced by an act of Congress to go away, not repealed by Constitution
itself
ii. Interpretations:
1. Immunity theory – enacts sovereign immunity as a structural
constitutional principle, but states can still waive their own
immunity (this is majority view and recognized in Hans)
2. Diversity theory – 11th amd only abrogates suits against states
brought under diversity jurisdiction, no sovereign immunity for FQ
suits against states since those were nonexistent at time of its
passage
3. Separation of powers theory – adopts Iredell’s dissent, Congress
can waive state immunity
iii. Hans – some suits against officials are actually against states and barred,
also citizens can’t sue their own states although the text of the 11th amd
says nothing about that
iv. Doesn’t apply to state courts by its text; the way we’ve gotten around
suing states in state court under 1983 is by interpreting it not to reach
states
c. Ex parte Young – you can still sue state and federal officials for prospective
relief/injunctions, although not damages from state treasury
i. If a damages remedy runs from the state treasury rather than the official’s
personal funds, the suit is barred by sovereign immunity
ii. Things like contract damages, restitution, refunds, back pay will all be
considered against the state; tort damages against individuals (even
indemnified ones) will not be.
iii. Prospective relief can be enforced even if costly
iv. Cause of action comes from inherent equity power of court, limited to
suits based on federal law - Pennhurst
d. State consent to waive immunity
i. Has to be explicit, no constructive waiver
ii. Ford Motor – state can consent to suit in its own courts without waiving
immunity in fed courts (although SCOTUS can review these)
iii. Nevada v. Hall – state courts can permit suits against other states; this one
is on thin ice
iv. Alden v. Maine – Congress can’t generally waive a state’s immunity in its
own courts
e. Miscellaneous qualifications
i. You can always assert federal defenses when states come after you, even
if you can’t sue states under it
ii. Immunity applies to admiralty as well as law/equity
iii. No immunity for subdivisions like cities
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 iv. States often waive re: a certain program for purposes of getting
conditional spending
v. Federal government can sue states, but foreign governments and Indian
tribes cannot
vi. Suits between states can be in SCOTUS
XIII. Congress’s waivers of state sovereign immunity
a. Can abrogate only under the 14th amd and bankruptcy powers, as of now, and
only by a clear statement that they intend to do so
i. 14th amd postdated rest of structural Constitution, allows abrogation -
Fitzpatrick
ii. Parden, Union Gas adopted SOP view of immunity and said Congress can
generally waive, but these were overruled by:
iii. Seminole Tribe – IGRA can’t waive state sovereign immunity under
Indian Commerce Clause power. Since Congress tried to supply this
alternative remedy, no ex parte Young suit against the governor either.
1. Read to mean Congress can’t abridge under any article 1 powers
2. But see Central Virginia – bankruptcy power allows Congress to
abrogate
iv. Armstrong – Congress can abridge the equity power of the courts to hear
Ex parte Young suits to enforce a federal right by enacting an alternative
remedial scheme; court also likely to find intent to preclude other
enforcement when administrative expertise is required
b. General theory (apart from Cent VA) is that states retained sovereign immunity
under 10th amd, Congress can’t abridge it except under 14th amd.
i. 14th amd power exercises must be congruent and proportional to the need
created by state actions abridging the 14th amd right. Boerne – need to
show a record of bad acts inviting prophylactic legislation and a tailored
remedy
ii. Hibbs – portion of FMLA providing for paid family leave was congruent
and proportional – actually tailored to address history of gender
discrimination
iii. Coleman – self-care portion of FMLA not congruent and proportional.
XIV. Habeas corpus
a. Any challenge to the legality of your detention; we’re studying mostly as a post-
conviction challenge, in federal court, to the constitutionality of the state
proceedings leading to detention
i. Availability of habeas precludes 1983 suit to challenge proceedings
ii. The law was mostly common law with a short statute until 1996 – big
statute, AEDPA – didn’t mess with much of the doctrine but did change
some things.
iii. Unique in providing for federal district review of state court proceedings –
liberty interest too great to just trust that states respect federal law.
b. Requirements for federal habeas relief
i. Exhaustion of state process, unless it would be futile to continue re: your
constitutional claim (e.g. because it’s procedurally defaulted)
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 1. You could formerly relitigate any constitutional claim without res
judicata unless you procedurally defaulted on purpose in order to
skip to habeas – Fay v. Noia.
2. Law has become more conservative since then – fewer
constitutional claims can now be relitigated (e.g. 4th amd – Stone v.
Powell).
ii. Herrera – you must allege a constitutional defect to win, not just produce
evidence of actual innocence; innocence evidence is a substitute vehicle
besides cause and prejudice for constitutional claims.
1. House v. Bell – New DNA evidence forgives your procedural
default but you still must show constitutional defect; no
freestanding innocence hearing
iii. New standard is Wainwright – exhaustion still required; an adequate and
independent state ground (e.g. state law procedural default) bars your
constitutional claim on habeas unless you can show cause for the default
(other than strategic withholding) and prejudice
1. Cause is state official misconduct, newly found evidence that
there’s an excuse for not finding earlier, or ineffective assistance of
counsel; but not inadvertent attorney oversights – Murray
a. IAoC is an independent 6th amd claim as well as a vehicle
for other claims. Standard is hard (Strickland) – essentially
complete deprivation of benefit of counsel
b. If you procedurally defaulted your IAoC claim by not
raising it on appeal or in post-conviction review in state
courts, you need to show cause and prejudice for that too
c. Abandonment by counsel during post-conviction
proceedings is cause.
2. Getting a new hearing to develop evidence also requires cause for
not presenting the evidence earlier and prejudice
a. AEDPA standard as narrowed in Taylor – when failure to
develop was due to petitioner’s fault, only new evidence
previously undiscoverable and tending to show actual
innocence gets a hearing. When not due to fault, the
standard is cause and prejudice
b. AEDPA says IAoC is not cause for failure to develop facts
c. Relief requested may be new trial, sentencing hearing, any other remedy to cure
the constitutional defect
i. Actual innocence standard being met can get you a new trial or capital
sentencing hearing; errors in non-capital sentencing hearing not decided
on yet
d. AEDPA statute – generally makes it harder to get
i. In addition to constitutional claims, also provides for review for
fundamental miscarriage of justice issues (which are pretty much all
constitutional anyway)
ii. Harmless error means no relief; structural errors in proceeding mean relief
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 iii. Burden is on petitioner to show that an error caused actual prejudice, since
final proceedings get presumed correct
iv. Statute of limitations is 1 year after final conviction; tolled while in state
post-conviction proceedings. Also get a year after SCOTUS announces a
new right, and a year when newly discovered evidence shows up. These
limits are subject to equitable tolling and exceptions for actual innocence.
e. Retroactivity of rights to habeas
i. Old standard was broad retroactivity, since no constitutional right is truly
new – it’s always been in the Constitution
ii. Changed in Teague v. Lane – no new constitutional rules that SCOTUS
announces are applicable to habeas
1. Rules are new when the result was not sufficiently dictated by
precedent so that all reasonable jurors would agree
2. Exceptions
a. New substantive right beyond the power of criminal law to
proscribe (broadened to things like void for vagueness,
statutory rights in Montgomery, Welch)
i. Montgomery – Miller’s announcement that only
incorrigible juveniles get life without parole is
retroactive; applies under substantive exception to a
whole class that an important procedure
(incorrigibility determination) wasn’t applied to.
ii. Welch – statute voided for vagueness means class
of people jailed under it have a right to raise due
process claim – this is substantive, applies to class.
iii.
b. Watershed rules of criminal procedure, like the right to paid
counsel
3. Bousley – new statutory rights rely on Teague framework when
they are based on constitutional rights (e.g. prosecutions under a
vague statute)
4. Danforth – states can apply more retroactivity than federal courts
do; this is just about remedy fashioning, not the meaning of the
Constitutional right
f. Habeas in a nutshell
i. Rights assertable practically limited to federal constitution
ii. Must exhaust claims in state courts; being disallowed from continuing to
assert your claim counts
iii. If you’re not allowed to assert your claim because of procedural default,
you might still get habeas
iv. If the procedural default is an adequate and independent state ground for
rejecting your claim, you lose unless you can show cause and prejudice, or
actual innocence
1. Cause is one of these 3 things:
a. Legal or factual basis not available to you at the time,
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 b. Interference from state officials making compliance
impractical,
c. Or IAoC, which is a hard standard to meet – Strickland.
2. Prejudice is a but-for test between the constitutional violation and a
substantial possibility of a different result
3. Actual innocence: by a preponderance, it’s true that no reasonable
juror would have found ∆ guilty beyond a reasonable doubt.
v. If your claim involves a new right not dictated by precedent at finality of
your case, you lose unless it’s a substantive right or watershed procedural
rule
vi. Statute of limitations of a year after finality, tolled for post-conviction
proceedings in state courts. Softened for extraordinary circumstances,
equitable tolling, actual innocence. New evidence will be allowed if
counsel was diligent at the time; steep requirements if not.

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