History and precedent tell us that the just compensation requirement has been implemented by a complex network of remedies providing multiple avenues for redress. To say that the Takings Clause requires adequate remedies is not the same as saying that the Clause requires an implied action directly against the states that can be brought in federal courts. In DeVillier v. Texas, a group of property owners asked the Supreme Court to imply a private right of action against the State of Texas to remedy alleged violations of the Takings Clause. The Supreme Court, however, did not determine the implied-right-of-action issue, because “Texas state law provides a cause of action by which property owners may seek just compensation against the state.” The Court correctly directed inverse condemnation plaintiffs to state law claims rather than implying a cause of action against the state. While there is a long tradition of takings remedies, the Court has not implied damages remedies against the sovereign states. And given the widespread availability of various remedies, including state-law remedies against the states, there is no necessity to imply a takings remedy. Were a state to attempt to withdraw remedies against itself and its officers, the Court has a number of options to provide adequate redress even within the strictures of sovereign immunity.

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. 1 The dispute has at least two prongs.The nondelegation camp argues that Congress made most of the important decisions itself, 2 whereas the prodelegation group points to Congress's committing significant decisions to administrators. 3Nondelegation scholars also argue that certain categories, such as foreign affairs, 4 should be treated as special exceptions allowing for greater

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel's investigation of his campaign's alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr's pursuit of investigations of Bill Clinton evoked similar arguments of political motivation.1The advent of "progressive" prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession.2 Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates' and officials' statements that they intend to pursue certain individuals or groups may bolster claims of bad faith-as evidenced in Donald Trump's

Disagreements about takings claims extend to both substantive and jurisdictional issues. Many advocates of deference to state and local government land use decisions also oppose a significant role for federal courts in adjudicating disputes over these decisions, while a number of property rights advocates argue that federal courts are an appropriate forum for such disputes. These issues were brought into sharp relief by the Supreme Court’s 2019 decision in Knick v. Township of Scott, which allows property owners to resort to federal court without first pursuing compensation in state court. While Knick clearly expands the lower federal court role in takings claims, many questions remain, for it is not yet clear whether federal courts will embrace a robust federal judicial role in land use cases. This Article surveys the history of takings claims in the federal courts and recommends that going forward federal courts develop an abstention doctrine particular to takings cases in order to ensure prudent deployment of judicial resources. This Article also explains why § 1331 actions may be superior vehicles for takings cases than § 1983 actions.

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires that convicted prisoners show that a prison official acted “maliciously or sadistically” to establish an excessive force claim, and to show that an official acted with subjective “deliberate indifference” to make out a claim of unconstitutional prison conditions. Similar requirements can apply with respect to claims by pretrial detainees whose claims are governed by substantive due process rather than the Eighth Amendment. Scienter critics have argued for use of an objective reasonableness standard for all inmate claims, including those brought by convicted prisoners under the Eighth Amendment as well as pretrial detainees. This Essay argues that the scienter requirements are more justified than the critics claim. The scienter critics argue that the Court has based its state of mind requirements on a mistaken notion that punishment requires a purpose to chastise or deter. Intentions to chastise and deter, however, remain central to the concept of punishment, and the reference to other purposes of punishment does not suggest dispensing with a culpable state of mind requirement in inmate suits against corrections officials. Scienter requirements, moreover, may be justified apart from a notion of punishment — both by reference to the need to maintain order in prisons and to distinguish constitutional violations from ordinary torts. State of mind requirements, moreover, do not pose the impenetrable barrier to liability that the critics claim. This is particularly true in systemic conditions cases — the cases that have the most promise of improving the lives of inmates.

Litigation over the legality of government action has traditionally taken place in suits between individuals and government or its officials. States were limited in the kind of cases they could bring in the federal courts; states typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) against the federal government. Rather, state standing in the federal courts was historically available when states had common law causes of action similar to those of ordinary litigants. State standing, however, expanded in the twentieth century, sometimes allowing litigation of sovereignty and parens patriae interests. And to the extent states rely on standing similar to that of individuals, the injury-in-fact inquiry poses no significant limitation on state standing. Indeed, injury-in-fact poses less of a limitation on states than on individuals, whose interests (unlike those of states) are inherently limited. The frequency with which states currently bring suits against the federal government suggests that states have become all-purpose advocacy plaintiffs, a result that Article III standing doctrine is generally thought to foreclose. Some critics of the focus on injury-in-fact suggest that courts should look instead to whether the plaintiff has a cause of action; cause-of-action analysis in turn would focus on whether a plaintiff’s alleged injury was one that the constitutional or statutory provision at issue was meant to obviate. States, however, might easily claim they are the intended beneficiaries of many constitutional and statutory provisions. Limiting state standing may thus require a general presumption that the interests that the Constitution and regulatory statutes protect, particularly in Article III courts, are the interests of individuals. Under such a presumption, state sovereignty interests and parens patriae interests should not generally give the states causes of action against the federal government. And states’ allegations of more individualized injuries should presumptively allow suits only when states are the direct objects of federal government regulation. These presumptions would reinforce the principle that Article III courts do not exist to resolve the policy disputes between governments, and that the legitimacy of the courts’ pronouncing on the legality of government action derives from the necessity of deciding cases of private rights.

Federal Courts scholarship often focuses on access to federal courts for the decision of federal claims. At the same time, many Federal Courts scholars insist that state courts must hear affirmative federal causes of action, even when the lower federal courts are open to the same claims—the very federal courts regarded by such scholars as superior to state courts. This article takes issue with suggestions that the state courts have broad duties to entertain affirmative federal claims, whether statutory or constitutional. There is little early support for requiring state courts to entertain affirmative federal statutory and constitutional claims, and considerable evidence against it. In the twentieth century, however, the Court began to compel state courts to take jurisdiction of certain federal statutory actions in a line of cases associated with Testa v. Katt. Such compulsion, however, was not justified by the Supremacy Clause or related arguments. The Court also occasionally required state courts to provide certain constitutionally necessary affirmative remedies, in a different line of cases associated with General Oil v. Crain. The constitutionally compelled remedies strand was based on a requirement that the states supply adequate remedies for certain federal constitutional violations, rather than a Supremacy-based command that the states provide the same causes of action that the federal courts provide, as under Testa. The effect of more recent Supreme Court decisions such as Haywood v. Drown and scholarly proposals following the Court’s 2016 decision in Montgomery v. Louisiana threaten to submerge the Crain line of cases into the Testa line, possibly requiring greater state court conformity with federal courts as to causes of action for raising constitutional claims. Such uniformity, however, threatens to diminish the role of the states in fashioning different solutions to problems of governmental illegality. State variation may be all the more important in light of frequently-voiced dissatisfaction with the Court’s federal habeas corpus doctrine and constitutional tort doctrine under 42 U.S.C. § 1983. State court duties thus will not necessarily enhance the enforcement of federal constitutional law, and might actually undermine it.

The Supreme Court during the Chief Justiceship of John Marshall is associated with endorsement of broad regulatory powers in Congress and broad federal question jurisdiction in the federal courts under Article III. By contrast, the successor Court under Chief Justice Roger Taney remains tied to its determination in Dred Scott that Congress lacked powers to enact the Missouri Compromise prohibiting slavery in certain of the territories, and to Taney’s opinion that descendants of African slaves could never be citizens who could invoke the federal courts’ diversity of citizenship jurisdiction. This article addresses the ways in which the Taney Court nevertheless outdid the Marshall Court in terms of a nationalist approach to judicial federalism. The Marshall Court faced a political environment hostile to the Federalist-dominated federal courts, and in reaction repeatedly expressed respect for congressional power over its jurisdiction, and tied its expansions of federal judicial power closely to expansive views of congressional power. The Taney Court, by contrast, did not face similar political-branch threats. Its jurisdictional opinions were less deferential to Congress than Marshall Court opinions. And while the Marshall Court tied its expansions of judicial power to broad views of congressional power, the Taney Court’s expansions of judicial power operated to limit any concomitant expansion of congressional power. The Taney Court accomplished this by expanding diversity of citizenship jurisdiction beyond what the Marshall Court had done and by explicitly adopting the use of a uniform judge-made general common law in diversity cases. It also expanded admiralty jurisdiction by an interpretation of Article III’s admiralty provision that was contrary to Marshall Court precedent, and rejected a proffered Commerce Clause justification that would have entailed broader congressional powers. And when it channeled certain matters away from the state courts to the federal courts based on exclusive federal powers, the Taney Court relied on implied federal powers whose enforcement could be limited by notions of necessity, as distinguished from the Marshall Court’s looser version of “necessary and proper.”

In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk's examples of non-contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, in situations where impediments often existed to voluntary extrajudicial resolution. Service or notice in some form was generally provided, which gave opportunities for adverse argument. In addition, the issuance of warrants, while ex parte, involved adverse interests in a context where predeprivation notice would undermine the utility of the proceeding, notice occurred on execution of the warrant, and opportunity for argument was then often available. Pfander and Birk's examples of pension and naturalization determinations are not as readily characterized as adverse. The Court, however, treated federal judges' pension determinations as appropriate, if at all, as the work of individual commissioners rather than Article III judges. Naturalization petitions are perhaps Pfander and Birk's best example of non-contentious jurisdiction, but the Court explicitly approved the practice as appropriate under Article III only after provisions for notice to, and potential appearance by, the United States.

The Supreme Court’s divided decision in Kerry v. Din, 135 S. Ct. 2128 (2015), shows the difficulty of defining liberty for purposes of procedural due process. Din, a United States citizen, claimed that she had been denied procedural due process when the State Department refused to grant an immigrant visa to her husband. Justice Scalia’s plurality opinion reasoned that Din had no liberty interest protected by procedural due process, while Justice Breyer’s dissent concluded that Din had such an interest based on fundamental rights involving marriage, the right of citizens to reside in the country, and statutory immigration preferences for spouses. The Din decision raises questions as to the content of procedural due process liberty. It also raises questions of the extent to which substantive constitutional rights and statutorily granted interests should be treated as liberty interests for purposes of procedural due process. While prior scholarship has answered a number of such questions with respect to property, no similar systematization has occurred with respect to liberty interests. This article undertakes to provide a taxonomy of liberty for purposes of procedural due process, and it analyses Kerry v. Din in light of those categories.

In Arizona v. United States, the federal government sued to enjoin enforcement of Arizona’s immigration laws on preemption grounds. And in Virginia ex rel. Cuccinelli v. Sebelius, the state attorney general argued that the state had standing to challenge the Affordable Care Act because it would unconstitutionally preempt a state law disallowing health insurance mandates. In each case, the government plaintiff asserted that it had power to regulate a particular subject to the exclusion of, or in addition to, the government defendant. Proponents of such sovereignty-based actions argue that the suits reflect modern federalism, that the government’s interests are separate and perhaps stronger than those of individuals, and that recognizing such suits serves valid regulatory purposes.Because such sovereignty-based suits generally are neither statutorily authorized nor constitutionally required, the government plaintiff is asking the court to exercise discretionary equitable powers to recognize the action. There are ample reasons the courts should decline to use their discretion to recognize such actions. Existing remedies accommodate modern federalism; the judicial system traditionally sees private parties as having the paramount interest in contesting alleged governmental illegality; and the regulatory purposes of causes of action are served by traditional actions between government and individuals. In seeking recognition of sovereignty-based actions, moreover, the government plaintiff effectively asks the courts to extend the boundaries of both judicial and executive power, while undermining the role of individuals in challenging government illegality.

The abstention doctrines that developed in the 1940s and 50s, as scholars have noted, reflected certain strands of Progressive and New Deal Legal thought, particularly an emphasis on institutional competencies and judicial restraint. This emphasis in turn was tied to the substantive policy goal of reducing federal court invalidation of progressive legislation. This article, written for New York Law School’s symposium celebrating Martin Luther King, aims to make a modest addition to prior scholarship by showing ways in which the reasoning supporting abstention doctrine corresponded to reasoning with respect to substantive doctrine. This correspondence was not only at the general level of emphasizing institutional competencies and judicial restraint, but also at the more specific level of relying on a social-fact-based jurisprudence, imagining any-state-of-facts that might justify legislation, and balancing governmental interests against formerly more absolute individual rights. Reinforced by such reasoning, abstention doctrine at mid-century appeared to be heading in the direction of requiring exceptional circumstances not to abstain when plaintiffs contested state and local regulation. Justice Douglas, later joined by Justice Brennan and Chief Justice Warren, would play a critical role in resisting abstention, thus helping to usher in the modern civil rights era. Because abstention subsists and continues to evoke academic criticism, it may be easy to forget how pervasive a doctrine abstention once threatened to become.

In Hughes v. Fetter (1951), the Supreme Court ruled that state courts are ordinarily required — as a matter of the Full Faith and Credit Clause — to take jurisdiction of claims arising under sister state law, their own wishes notwithstanding. Hughes remains a foundational case for Conflict of Laws and interstate relations. It is said to embody principles that states should maximize each others’ policies, and cannot discriminate against sister state laws. This article argues that Hughes was wrong. The decision is not justified by history or precedent under the Clause, nor by a policy maximization rationale. And its nondiscrimination norm fits poorly with states’ allowable preferences for enforcement of their own law over sister-state law. Rather, states should be under a much more limited duty, grounded in a litigant’s substantive entitlement to redress, rather than a duty not to discriminate against the law of sister states. Arguments for extension of a rule of nondiscrimination against the law of other sovereigns in the choice of law, public policy, and jurisdiction-stripping settings should therefore not rely on the doubtful result in Hughes.

The 1789 Judiciary Act's Section 251 has proved an embarrassment for those claiming that all federal question jurisdiction must vest, either originally or by appellate review, in the federal courts. (2) Because Congress did not provide for general federal question jurisdiction in the lower federal courts until 1875, (3) Supreme Court review of state court judgments Section 25 would be needed to ensure that all cases federal law would vest in some Article III court. On its face, however, Section 25, as well as its 1867 successor, (4) excluded some federal issues from Supreme Court review of state court judgments, particularly when the state court overvindicated a federal claim. (5) Indeed, review at the instance of either side of federal issues was not clearly available until Congress amended the review provisions in 1914. (6) This amendment responded to the apparent unreviewability of the New York Court of Appeals' decision in Ives v. South Buffalo Railway Co., (7) holding that the state's workers' compensation law was unconstitutional. (8) A leading modern proponent of mandatory vesting, Akhil Amar, sought to blunt the impact of Section 25 on his mandatory vesting claim by two arguments--one specific to Section 25 and the other more general as to the role of federal question jurisdiction. As to Section 25 specifically, Amar reasoned that the direct review provisions in fact did encompass all federal questions, because Section 25's text could be read to include either side's claim federal law. (9) He argued that [i]n virtually every case in which one party argues for a federal 'right,' the other side can argue that it has a federal 'immunity'--which is simply another way of saying that one's opponent has no federal right. (10) At a higher level of generality, Amar harkened to a more general theme in much federal courts scholarship--that the primary role of the federal courts is the protection of individuals against government. (11) This theme was somewhat in tension with Amar's theory that all federal question jurisdiction necessarily vested in the federal courts and that Section 25 encompassed review no matter which way the federal issue had been decided. (12) But for Amar, even if Section 25 were more restrictive than he claimed, that section nevertheless had vested the most important part of mandatory federal question jurisdiction by providing review for all undervindications of federal rights. (13) The point of Article III's mandatory vesting of federal question jurisdiction, after all, was not uniformity but federal rights enforcement: The inspiration behind arising under jurisdiction was rooted not in uniformity but in the importance of protecting individual rights by providing an impartial and independent national tribunal. Where the state court decision violated no individual federal rights, but in fact gave the litigant raising a federal right more than he was entitled to as an absolute minimum, no compelling need for federal court supervision would arise. (14) Other scholars who argue for some form of mandatory vesting, particularly those arguing against broad congressional power to strip federal courts of jurisdiction, similarly emphasize federal courts' central role in protecting constitutional rights. (15) (For some mandatory vesting proponents, however, uniformity is also an important concern. (16)) Daniel Meltzer disagreed with Amar's mandatory vesting thesis, and argued that history did not support Amar's claim that Section 25 granted the Supreme Court power to take review at the instance of either side of a federal rights claim. (17) He noted that one could not always easily turn a claim of overenforcement of a federal right into an immunity or privilege. (18) He acknowledged that reasoning like Amar's surfaced in a 1908 case and a few subsequent decisions involving employees' actions against railroads. …

Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under § 1331. This second class status is partly due to Justice Holmes’s pronouncement that, 'A suit arises under the law that creates the cause of action.' This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of 'primary rights.' What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.

Previous articleNext article No AccessDelegation and Due Process: The Historical ConnectionAnn WoolhandlerAnn Woolhandler Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20082008 Article DOIhttps://doi.org/10.1086/655120 Views: 26Total views on this site Citations: 1Citations are reported from Crossref © 2009 by The University of Chicago. All rights reserved.PDF download Crossref reports the following articles citing this article:César F. Rosado Marzán Punishment and Work Law Compliance: Lessons from Chile, SSRN Electronic Journal (Jan 2012).https://doi.org/10.2139/ssrn.2114370