Fed Courts Outline? Forum

[msdiiva]

Anything would be great at this point, especially if you had Hart & Wechsler's book.

[msdiiva]

Or any practice exams with model answers?

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....

[grixxlybear99]

Anything would be great at this point, especially if you had Hart & Wechsler's book.

I. Intro: Marbury and Function of Adjudication
1.) Marbury v. Madison
a. Congress may alter Appellate Jx of SCOTUS, but NOT Original Jx of SCOTUS
b. Judiciary may review the legality of actions/inactions of other Branches only if Non-Discretionary Task is performed by those Branches
c. SCOTUS has power to review Acts of Congress and “declare what the law is”
d. Federal Cts may decide how much deference to give to Executive Branch’s interpretation of Law
II. Federal Judicial Function: Cases and Controversies
1.) Executive Revision
a. Hayburns (1792)
i. Rule – If Judicial decisions can be overruled/revised by Executive/Legislative Branch, there’s no “case or controversy,” so it’s an Advisory Opinion (Violation of S.O.P)
ii. Rule – Executive/Legislative Branch may not assign to the Judicial Branch any duties other than those that are properly “Judicial” [but see Extradition]
2.) Legislative Revision
a. US v. Klein (1871)
i. Supporters of Jx-Stripping – Congress may limit SCOTUS’ Appellate Jx as long as it does not violate other Constitutional provisions (e.g., Presidential Power or DP)
ii. Opponents of Jx-Stripping – Congress cannot restrict SCOTUS’ Appellate Jx in an effort to direct substantive results in a particular case
b. Robertson v. Seattle (1992) – Federal Law expressly noted 2 pending cases and said “Congress determines that D satisfied the Statutory requirements that are the basis of the 2 lawsuits”
i. Rule – Congress may dictate particular results if it adopts a new-Law, but Klein applies if Congress dictates particular results under existing-Law
c. Plaut (1995) – Congress may not revise/overturn suits for damages that received final judgment
d. Miller v. French (2000) – Congress may alter the “prospective relief” of previously entered injunctions because injunctions are not “final” since they require Ct supervision
3.) Collusive Litigation
a. Collusive Litigation [US v. Johnson] – Proceedings/Judgments must be dismissed where:
i. Suit is brought by P at the request of D,
ii. P did not actively participate in the suit, or
iii. One party financed the entire litigation
b. Constructed Situations – P may construct situations in order to initiate lawsuits against D [Evers]
c. Consent Decrees – If P and D enter into a “Consent Decree,” stipulating that the Law at issue is Unconstitutional, there is no case or controversy bc no adversity [Moore v. Charlotte Bd. of Ed.]
d. Citizen-Suit – If Congress provides a Citizen-Suit provision naming particular P’s to file suit against particular D’s, there’s no adversity bt/w the parties, so no case or controversy [Muskrat]
IV. Justiciability Doctrines
1.) Standing
a. Standing Requirements:
i. Injury-in-Fact – P must show he has personally sustained an injury [Lujan]; or that there is a “substantial risk” of real/immediate injury (not hypothetical) [Susan B. Anthony]; or that injury is “certainly impending” as a result of the challenged conduct [Clapper]
1. A-symmetry: Objects vs. Beneficiary of Regulation – Objects = Standing [Lujan]
2. Probabilities –
a. Aesthetic Injury – No Standing [Earth Island]
b. Economic Injury – Standing [Monsanto]
3. Citizen-Suit Provision – P’s do not have Standing via Congress’s Citizen-Suit provision if Congress converts an undifferentiated public interest into an individual right bc it violates Separation of Powers [Lujan2]
a. Generalized Grievance – P’s do not have Standing to require the Gov’t be administered in accordance w/ the Law [Fairchild]
4. Widespread Injuries – Where harm is concrete, though widely shared, it is not a generalized grievance, so there is Injury-in-Fact [Akins]
ii. Causation – Injury-in-Fact must be fairly traceable to the challenged conduct
1. P must prove every link of the causation chain [Allen + Clapper]
iii. Redressability – Must be likely (not speculative) that the injury will be redressed by a favorable decision [Lujan2 + Allen]
b. Theories of Standing Doctrine’s Purpose – Always include at least 1 of these arguments
i. Promotes Separation of Powers – By limiting availability of judicial review (e.g., Cts should not micromanage other Branches) [Allen v. Wright]
1. Counterargument – Purpose of Separation of Powers is to have Branches check other Branches for abuse of power [Breyer Dissent – Allen v. Wright]
ii. Judicial Efficiency – By preventing lawsuits by P’s whose stake is ideological, not personal [Hollingsworth]
iii. Quality of Judicial Decisionmaking – Is improved if there’s a specific controversy
1. Counterargument – If you spend $ on a suit, you likely have a stake
iv. Value of Fairness – By ensuring people only raise their rights, and cannot meddle in the affairs of 3rd parties [Linda RS]
1. Counterargument – Standing precludes injured persons (e.g., Environmental Organizations) from access to Ct [Lujan]
2.) Mootness
a. Mootness – An actual controversy must exist at all stages of Federal Ct proceedings, both at the trial and appellate levels. If events subsequent to filing the case resolve the dispute, the case should be dismissed as moot bc there is no longer an actual controversy between adverse litigants [DeFunis]
b. 4 Exceptions to Mootness Doctrine –
i. Secondary/Collateral Consequences –
1. Criminal cases – Challenges to criminal conviction is not Moot even after D has completed the sentence and is released from custody, if D continues to face adverse consequences of the criminal conviction [Sibron]
a. Exception – Challenges to a particular sentence is Moot after the sentence has been served [Rice]
2. Civil cases – Cases are not Moot in civil litigation even if P’s primary injury is resolved as long as P continues to suffer some harm that a favorable Ct decision would remedy [Stotts]
ii. Wrong Capable of Repetition, Yet Evading Review [FEC v. Wisconsin] – When injuries are likely to recur, Federal Cts may continue to exercise jx over the P’s claim if:
1. The challenged conduct is in its duration too short to be fully litigated prior to cessation or expiration, and
2. There is a demonstrable (not theoretical) probability that the same complaining party will be subject to the same action again
iii. Voluntary Cessation – Voluntary cessation of allegedly illegal conduct is not alone sufficient to Moot a case – there must be a clear assurance that the party whose alleged to have committed the violative conduct will not engage in it again: (1) conduct is ceased, and (2) D bound itself to not re-engage in that conduct [Munsingwear + Pap’s AM]
iv. Properly Certified Class Actions –
1. Class Actions do not become Moot upon expiration of named-P’s substantive claim if Class Certification has been denied bc the named-P has a personal stake in obtaining Class Certification [Geraghty]
2. If a named-P’s claim on the merits expires after Class Certification, the case is not Moot and named-P may still represent the class [Sosna]
c. Procedural Issue – If SCOTUS deems a case Moot, it will vacate the lower Ct’s decision and remand the case for dismissal (thus, leaving the legal issue unresolved for future cases)
i. Exception – Voluntary settlement does not justify vacatur of a lower Ct decision bc interest in judicial precedent extends beyond the parties involved [Bancorp]
3.) Ripeness
a. Ripeness – Ripeness Doctrine seeks to separate matters that are premature for review bc injury is speculative, from those cases that are appropriate for Federal Ct action [Abbott]
i. Fitness for Judicial Review
1. Cases are not fit for judicial review if P merely alleges he will be prosecuted/harmed in the future [O’Shea – but if alleging Facial or As-Applied violation of 1st Amendment, possibly Ripe]
ii. Hardship to the Parties that would Result from Withholding Judicial Consideration
1. Fact – Even if P’s forced to choose between forgoing possibly Constitutionally protected conduct or face significant sanctions, P’s case is not Ripe for review [UPW v. Mitchell – Ct required P to violate the Law in order for case to be Ripe]
2. Legal – If issue is purely legal and not fact-dependent, the case is ripe for review [Abbott], but if issue is fact-dependent, the case is less ripe for review [Mitchell]
iii. Ripeness Test –
1. Fitness of the Issues for Judicial Review [O’Shea]
a. Is the impact of harm sufficiently direct and immediate?
2. Hardship to the Parties that would result from withholding judicial consideration [Abbott] – Legal vs. Fact-dependent Issues
4.) Political Questions
a. Baker v. Carr – 6 Factors of Political Question Doctrine:
i. Textually demonstrable Constitutional commitment of the issue to a Branch of Gov’t
ii. Lack of Judicially discoverable/manageable standards for resolving the issue
iii. Impossible to decide w/o an initial policy determination
iv. Impossible to decide w/o expressing lack of respect to other Branches of Gov’t
v. Unusual need for unquestioning adherence to a political decision already made
vi. Potential embarrassment from various pronouncements by multiple Branches on 1 issue
b. 2 Views of Political Question Doctrine
i. Bickle – PQ is politically important for Judiciary bc Federal Cts should not micromanage other Branches
ii. Justice White – PQ is dumb bc Separation of Powers requires Branches to check other Branches for abuse of power
c. Bush v. Gore – Reverse-Political Question Doctrine
i. Reverse PQ Doctrine – If the political stakes are so high that it would be more political for Cts not to act than to act, then the Ct must act
ii. Cynical View – Bush v. Gore ended the PQ Doctrine
1. White Dissent in Nixon v. US – PQ Doctrine is dead bc there are other ways of resolving any PQ that preserves the boundaries between the Branches
5.) Facial vs. Applied Challenges, Overbreadth vs. Vagueness
a. 2 Types of Constitutional Challenges
i. Facial [Prospective] – Facial Challenges seek to invalidate Laws in their entirety because every application is Unconstitutional
1. In Overbreadth cases, a Law is facially overbroad if it’s overinclusive
2. In Vagueness cases, a Law is facially vague if it applies to conduct that could be forbidden and not forbidden [Coates]
ii. As-Applied [Retrospective] – Seeks to invalidate a particular application of a Law
b. Overbroad v. Vagueness Statutes
i. Overbroad – Primarily concerned w/ Facial Challenges under 1st Amendment
1. Statutory Interpretation – Cts should construe Statutes to avoid Constitutional problems unless such interpretation is plainly contrary to Congress’ intent
2. Presumption of Severability [US v. Jackson]
3. No Hypotheticals – Cts do not accept facial overbreadth challenges for “imaginary” cases not before the Ct [Yazoo]  Ct treats them As-applied instead
ii. Vagueness – If an average citizen must guess the meaning of the Law, its Vague
IV. Congressional Control of the Allocation of Judicial Power
1.) Congress’ Power Over Federal Jx
a. Lower Federal Cts – Art. III, §1 “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; /// to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or its citizens, and foreign states, citizens or subjects.
i. Views:
1. Amar (Textualist) – “All means all” – Constitution requires Federal Cts to have Jx over particular matters and Congress may not Jx-strip these cases
2. Melsner (Values) – Why did Congress find some subjects (Maritime) to be more important than others (Diversity)?
3. Tribe – SCOTUS must be able to resolve Constitutional issues bc it is unlikely the Framers would’ve trusted ultimate resolution to State Cts
4. Story – Congress must vest the whole judicial power to either SCOTUS or lower Fed Ct
ii. Sheldon v. Sills – Congress has the power to create lower Federal Cts, so it may determine their Jx (Textual – “All” is not present in Art. III for Diversity cases)
iii. Battaglia v. GM (2d. Cir) – Congress may give, withhold, and restrict Jx of lower Federal Cts, but it cannot completely eliminate P’s ability to litigate Constitutional claims
1. 2 Limitations on Congress’ Ability to Jx-Strip lower Federal Cts:
a. Congress must not disturb final judgments [Klein, Plaut]
b. Congress must not foreclose all avenues to litigate Constitutional issues
b. SCOTUS – Art. III, §2 In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have Original Jx. In all the other cases before mentioned, the Supreme Court shall have Appellate Jx, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
i. Views:
1. Hart – Exceptions Clause’s 2 Imperatives:
a. SCOTUS must maintain uniformity in interpretations of Constitution and Federal Laws, and
b. SCOTUS is ultimate interpreter/guarantor of Constitutional rights
2. Reddish (Textual) – Exceptions Clause is literal, but Congress isn’t dumb
ii. Marbury v. Madison – Congress cannot extend/restrict SCOTUS’ Original Jx
iii. McCardle – SCOTUS must NOT examine Congress’ intent when they enact Jx-stripping Laws, only the text of Art. III, §2 (Textual > Congressional Intent) [but see Klein]
1. Supporters of Jx-Stripping – Congress may Jx-strip SCOTUS Appellate Jx of Constitutional Issues
2. Opponents of Jx-Stripping – Congress may Jx-strip SCOTUS’s Appellate Jx under “Exceptions Clause” only if there remains some avenue available to the P
iv. US v. Klein – Congress cannot restrict SCOTUS’ Appellate Jx in an effort to direct substantive results in a particular case [but see McCardle]
v. Webster v. Doe – Congress may restrict SCOTUS Appellate Jx of Constitutional issues only if there’s a “Clear Statement”  No “Clear Statement” Rule required for Statutes
2.) Non-Art. III Cts
a. Legislative/Agency Tribunals
i. Public Rights – Congress may remove public right disputes from Art. III Cts [Crowell]
1. Claims against US for money/land, Coercive Gov’t conduct, Immigration, Public Benefits, Criminal + Tax cases
ii. Balancing Test [Schor] – Benefits of Art. I vs. Purposes Underlying Art. III Requirements
1. Schor Factors – Art. I Cts are Constitutional and do not violate Art. III S.O.P if:
a. Extent to which essential attributes of Art. III Power is preserved
i. Close Oversight by Art. III Cts [Crowell]
ii. Art. III De Novo Review of all Law & Constitutional + Jx Facts [Crowell]
b. Extent to which Art. I Ct exercises Art. III Powers
i. No Independent Authority to enforce its own orders [Crowell]
1. Non-Art. III Ct must serve as an “Adjunct” [Crowell]
ii. No Broad Jx Authority
c. Origins and Importance of Right to be adjudicated
i. State law counterclaims are permissible if not Bankruptcy Ct
d. Policy concerns underlying the delegation
i. Efficiency/Expertise/Fairness/Cost-Effective
e. Whether resort to the Tribunal is voluntary or mandatory?
i. Did P consent to Art. I Ct (P did by filing the counterclaim)
b. Bankruptcy Cts
i. Northern Pipeline – Bankruptcy Cts created by Federal Law violated Art. III
1. Bankruptcy Cts are not Adjuncts of Art. III Cts bc:
a. Broad Jx – Bankruptcy Cts had Jx over all Civil matters
b. Independent Authority – Bankruptcy Cts can enforce its own orders
i. Existence of Review by Art. III Cts was insufficient
ii. Stern v. Marhsall (2011) – Congress violates Art. III’s S.O.P requirement if it authorizes Bankruptcy Cts to issue final judgments over unrelated State law counterclaims [Broad jx]
iii. Bankruptcy Cts – Less deference to Efficiency, Expertise, Fairness, or Cost-Effective
3.) Federal Law in State Courts
a. Federal Law Limits Willing-State Cts to Exercise Jx over Federal Rights of Action
i. Tafflin – State Cts possess Concurrent Jx w/ Federal Cts over Federal claims, subject only to limitations imposed by the Supremacy Clause
1. Supremacy Clause Limitations on Concurrent Jx –
a. Express – Explicitly denied by Federal Law
b. Implied – (1) Legislative History, or (2) Federal Interests “Clearly Incompatible” w/ State Ct jx
i. 3 Factors of “Clearly Incompatible”:
1. Desire of Uniform Interpretation,
2. Expertise of Federal Judges in Federal Law,
3. Greater Hospitality of Federal Cts to Federal Claims
2. Scalia Dissent (Current Law*) – State Cts have Concurrent Jx w/ Federal Cts over Federal claims unless Congress “Expressly” prohibits Concurrent Jx on the face of the Federal Law by using the words “only” or “exclusively”
b. Federal Law Requires Unwilling-State Cts to Exercise Jx over Federal Rights of Action
i. Federal Law Claims
1. State Policy – Supremacy Clause requires State Cts to enforce Federal Law even if it conflicts w/ State Policy [Testa v. Katt]
2. State Law Defenses – State Cts cannot use State Law Defenses (e.g., Immunity) to defeat Federal Claims [Howlett]
a. Valid Excuse – State Cts may not deny a Federal Right when the parties and controversy are properly before it, unless there is a “valid excuse”
i. Excuses inconsistent/violative of Federal Law are not “valid”
3. General Jx – State Cts must entertain Concurrent Jx over Federal Claims where their Cts are able to entertain similar State Law claims [Haywood]
ii. Federal Law Procedures
1. [Felder v. Casey] State Cts must follow Federal Procedures when hearing Federal Law claims if:
a. Congress expressly authorizes a Federal Procedure for a specific matter, or
b. Application of State Procedures would be “Outcome Determinative” or “Burden the Exercise of Federal Rights”
i. Key Factor – Legislative Intent of the Federal Law (i.e., Would application of State Law procedure severely undercut the Federal Substantive right?) [Dice v. Akron]
2. Mitchell v. Forsyth – Immunity issues must be decided first, and denials of Immunity are immediately appealable under §1983 or other laws
V. Review of State Court Decisions by SCOTUS
1.) SCOTUS may review Federal Issues decided by State Cts, and
a. State law questions “Necessarily Antecedent” to a Federal Issue [Hunter’s Lessee + Cardinale]
b. Must be “Adequately Preserved” – Raise objections at every level of review [Cardinale + England]
i. SCOTUS determines whether the “Claim” has been preserved, not whether the “Argument” have been preserved [Yee v. Escondido]
2.) SCOTUS may NOT review State Ct decisions if:
a. Adequate and Independent State Grounds (A&I) [Murdock]
i. Independent – SCOTUS requires “Clear Statement” that decision rests on Independent State grounds [Michigan v. Long]
ii. State Ct decision is NOT “Adequate” if – “Arid ritual of empty formalism”
1. Procedural Default [Cardinale – Whether a Con issue was presented to State Ct is itself a Con question that SCOTUS may review]
2. Novel (New Procedural Rule) [NAACP v. AL]
3. Inconsistently Applied [Staub]
4. Discretionary State Rules (“may”) [Sullivan v. Huntington Park]
5. Violation of DP [Reece v. GA]
6. Serves No Legitimate State Purpose [Lee v. Kemna]
7. No Fair and Substantial Basis on the Record to Support SSC’s Conclusion [Ward]
3.) Finality Rule – 28 USC §1257 allows SCOTUS to review “final judgments” of the Highest State Ct in which a decision can be had [Thompson v. Louisville]
a. SCOTUS has Jx, even though State Ct proceedings are ongoing, in 4 situations [Cox]:
i. No Doubt as to the outcome of remaining procedures & Fed issues likely to be decisive
ii. Federal Law issues will Survive and Necessitate SCOTUS review
iii. Review is “Now or Never”
iv. Preserving SCOTUS Review of Important Federal Issues (1st Amendment)
VI. Federal Common Law
1.) What is Federal Common Law?
a. Federal CL defined – Federal CL is the development of legally binding Federal Law created by Federal Cts in the absence of directly controlling Constitutional or Statutory provisions
b. 3 Categories of Federal CL
i. Gap Filling – When there’s a Federal Interest sufficient to warrant the creation of Federal CL, Cts will step in to create the laws
ii. Interstitial Lawmaking – Federal Cts create law when Congress creates a domain of law, passes broad Statutes, and expects Cts to fill the gaps
iii. Necessary Remedy – When Constitutional or Statutory provisions needs a Federal Remedy that Congress has not enacted, Cts look to Legislative intent to create rights of action to provide judicial protection for important Constitutional and Statutory rights
c. 2 Theories – Sources of Law that Justify Federal CL-making
i. Cts lawmaking function derives from CL background of Framers who believed Cts powers to be expansive
ii. *Federal CL-making derives from domains where Federal Gov’t has a need for uniformity and consistency [Jackson Concurrence – D’Oench, Dume v. FDIC]
2.) Rules of Decision
a. Swift v. Tyson (1842) – Federal Cts may apply Federal CL in Diversity suits
b. Erie v. Tompkins (1943) – Federal Cts sitting in Diversity must apply State substantive laws to resolve claims under State law (overrules Swift)
3.) Pre-Emption – Where Federal Law Ousts State Law
a. Pre-Emption – In cases involving Private parties, Federal CL will be developed only if Federal Law is deemed to preempt State Law
b. Express Pre-Emption – Federal Law explicitly declares that it preempts State Law
c. Implied Pre-Emption – Congress’s intent to preempt State Law is implied by the underlying Federal action [Wyeth v. Levine – But see Thomas Concurrence: Express Pre-Emption Only]
i. Conflict Pre-Emption – When it is impossible for a Regulated-Entity to comply w/ both Federal and State Law, or compliance is possible but State Law poses an obstacle to the achievement of Federal Purposes
ii. Field Pre-Emption – Congress intends Federal Law to “Occupy the Field”
d. Burden – Person seeking to oust State Law has burden of proving pre-emption
e. Preemption Claim – P argues State/local law invalid under Supremacy Clause (relief=injunctive/declaratory relief)
4.) Federal Interests at Stake [Gap-Filling]
a. Clearfield Trust – Where Unique Federal Interests (e.g., Ownership) are at stake, Federal Cts may create Federal CL
i. Test – In determining whether the Federal Interests are Unique to warrant the creation of Federal CL, Cts assess:
1. Whether Congress provides guidance
2. Whether general principles of law can be extracted and uniformly applied
3. Whether State rules are uniform (and if so, whether to adopt them as Federal CL)
b. Criminal Law
i. Hudson & Goodwin – Federal Cts lack authority to develop Federal CL Crimes
c. Defenses
i. Boyle v. United Tech (1988) – Federal CL should determine the liability of a Private-Contractor providing military equipment to the Federal Gov’t
1. Unique Federal Interests:
a. Obtaining Military Equipment for Federal Gov’t
b. Public Fiscal Expenses (that would be generated if Contractors held liable)
2. Test – Liability for Design Defects (Not Manufacturing) in Military Equipment cannot be imposed, pursuant to State Law, when:
a. Federal Gov’t approved reasonably precise specifications
b. The Equipment conformed to those specifications, and
c. Supplier warned Federal Gov’t of the dangers in the use of equipment that were known to the Supplier (Known ≠ Should Have Known)
3. Holding – Federal Law will oust State law only where:
a. “Significant Conflict” exists bt/w Federal Policy/Interest and the operation of State Law, or
b. Application of State Law would frustrate ‘Specific Objectives’ of Fed Law
4. Brennan Dissent – Federal CL only applies directly to protect Federal Gov’t, but here we are protecting Private 3rd Parties
d. Regulatory Interest
i. No Unique Federal Regulatory Interest in Aviation Safety [Miree v. Dekalb]
e. Maritime/Admiralty [Chelentis]
i. Federal CL always governs Maritime/Admiralty cases bc of the Unique Federal Interest
1. Exception – States can supplement remedies under Federally-created rights, but States cannot abolish or substitute their own State law
f. Foreign Affairs
i. Federal CL governs Foreign Affairs bc of the Unique Federal Interest [Crosby]
g. Labor Relations
i. Lincoln Mills – Federal Law granted Federal Cts Jx to decide Labor Relations that affect interstate commerce, but the Law did not provide substantive principles for Federal Cts to use in deciding such cases (SCOTUS finds Field Pre-Emption + Gap-Filling)
5.) Implied Rights of Action [Interstitial Lawmaking]
a. Cannon (1979) – [Cort Factors] Cts may imply private rights of action for Federal Laws if:
i. Is P one of the Class for whose special benefit the Statute was created?
ii. Is there any indication of Legislative Intent (explicit or implicit) either to create such a remedy or to deny one?
1. Was the Statute modeled on a prior Statute, and if so, whether that prior Statute was found to have an implied private right of action
2. Attorneys Fees Provision – Congress presumes a private right of action
iii. Is it consistent w/ the underlying purposes of the Legislative scheme to imply such a remedy for the P?
1. Even if Congress specifies 1 enforcement mechanism, Ct may find that Congress implied dual enforcement mechanisms [but see Sandoval]
iv. Is the cause of action one traditionally relegated to State law?
1. Whether the private right of action would interfere w/ State agendas/policies
b. Sandoval (2001) – If there is 1 remedial scheme in the Federal Law, it creates a presumption that Congress did not intend a dual remedial scheme
i. Scalia’s Majority – Purports to apply Cort factors, but is really looking for:
1. “Specific Rights Creating Language” – “Shall”
2. Explicit Affirmation in the Statute’s structure (i.e., Attorneys Fees provision)
3. Absence of other remedial schemes
6.) Constitutional Violations and Bivens [Necessary Remedy]
a. 14th Amendment – Implied Remedy to sue for DP/EP Violations [Ward v. Love County]
b. Retroactivity – Constitution may require Retroactivity for retrospective relief (restitution) [Harper]
c. Injunctive Relief – If States have a post-deprivation remedy available, Federal Cts may not grant prospective injunctive relief for the alleged tax “takings” violations [Crain]
d. Bivens – Federal private cause of action and remedy should be inferred directly from the 4th Amendment, allowing P’s to sue in Federal Ct for damages against Federal Agents (not Agency)
i. Reasoning
1. Where there’s a wrong, there’s a remedy
2. State Law may be inadequate to safeguard Constitutional rights
3. 4th Amendment serves as an independent limitation on Federal power
ii. Exceptions –
1. Factors Counseling Hesitation in the Absence of Affirmative Action by Congress
2. If Congress supplied an equally effective alternative remedial mechanism
e. Is Bivens’ private right of action Constitutionally required or Federal CL?
i. Constitutional [Early] – Congress cannot restrict Bivens private right of action/remedy
1. Passman (1979) – Bivens action for 5th Amendment (property-DP) violation
2. Carlson (1980) – Bivens action for 8th Amendment violation even though FTCA provides a damages remedy (but see Bush v. Lucas)
ii. Federal CL [Modern] – Congress can restrict or deny Bivens suits even in the absence of an adequate alternative remedy
1. Bush v. Lucas (1983) – NO Bivens action for 1st Amendment violations bc alternative remedial mechanism exists
2. Schewiker (1988) – NO Bivens action for 5th Amendment Procedural DP violations bc alternative damages remedy exists
3. Castaneda (2009) – NO Bivens actions for 5th, 8th, or 14th Amendment violations
a. Rationale – Ct found Federal Law was the exclusive remedy bc a Federal Law explicitly stated it was the exclusive remedy
b. Consequence – P’s can be denied Bivens actions even if left w/o an adequate alternative remedy
VII. 42 USC §1983
1.) Private Right of Action under §1983
a. Statutory Rights
i. “Rights Creating Language” – Cts look for “Rights Creating Language” (e.g., “shall”) to determine if a Federal Law provides a private right of action for enforcement [Pennhurst]
ii. “Clearly Intended” – Statutory rights may be enforced via §1983 action only if the Law expressly shows Congress “Clearly Intended” to create a private right of action [Gonzaga]
iii. Presumption – If Congress included a private right of action in a Federal Law to enforce a Statutory right, there is a Presumption that Congress did not intend §1983 to be an available remedy [Rancho Palo]
1. Rebuttable – Presumption is overcame by textual indication (explicit or implicit) that the Statutory remedy is to complement, rather than displace, §1983 remedies
a. See Cannon + Sandoval
b. Constitutional Rights
i. Fitzgerald v. Barnstable (2009) – If §1983 claim alleges a Constitutional violation, Ct compares the rights/protections of the Statute w/ the rights/protections existing under the Constitution. If the rights/protections differ in significant ways, it’s unlikely Congress intended to preclude §1983 actions from enforcing Constitutional rights under Federal law
2.) §1983 – In General
a. Supplemental Jx – §1983 need not be sought in State Ct before Federal Ct [Monroe]
b. Individual Capacity – Municipal Officers may be held liable in their “Individual Capacity” under §1983 for “Abuse of Power” [Monroe]
c. Official Capacity – Municipal Officers may be held liable in their “Official Capacity” under §1983 as long as they acted in accordance w/ a Statute, Ordinance, Custom, or Policy [Monell]
i. NO Respondeat Superior – Municipalities cannot be held liable for actions committed by Municipal Officials’ “Abuse of Power”
d. Municipal Immunity – Municipalities NOT entitled to Absolute or Qualified Immunity [Owen]
i. “Clearly Established” – Municipalities can be held liable for violations that were NOT “Clearly Established” when the Unconstitutional action took place [but Harlow applies to Municipal employees]
3.) Municipal Liability – Policy or Custom
a. Policy [Pembaur] – Single decision by Municipal Official w/ Policy-making authority represents Official Policy, giving rise to Municipal Liability
i. Formal acts by Legislative bodies = Policies
ii. Agencies exercising delegated authority that create orders = Policies
b. Custom [Praprotnik] – Widespread practice, committed by a “High Municipal Official” w/o Policy-making authority, although not authorized by Express Law or Municipal Policy, that is so permanent and well-settled as to constitute a custom may give rise to Municipal Liability
i. Jett – State Law governs who has final Policy-making authority
4.) Municipal Liability – Failure to Train and Single Hiring Decisions
a. Failure to Train [City of Canton] – In order to hold a Municipal liable for Failure to Train, P must prove “Objective Deliberate Indifference”
i. E.g., Municipality receives multiple complaints of Constitutional violations, does nothing
b. Single Hiring Decision – In order to hold a Municipal liable for a Single Hiring Decision, P must prove the Municipality’s decision reflects an “Objective Deliberate Indifference” to the risk that the decision will cause a violation of the particular Constitutional right at issue [Bryan County]
5.) Pleading Requirements and Supervisory Liability [Iqbal]
a. Pleading Requirements – Ct must accept as true all factual allegations in the complaint, but not legal conclusions
i. Only complaints that facially state a plausible claim for relief survive a motion to dismiss
b. Supervisory Liability – P must prove “personal involvement” by the Supervisor (i.e., direct authorization)
i. Bottom to Top – P should sue from Bottom to Top in order to partake in discovery to determine whether Supervisor could be liable, then add them via FRCP 15
6.) State Immunity
a. Will v. Michigan (1978) – Suits for damages against State or State Officials in their “Official Capacity” are not permitted under §1983
b. Ex Parte Young – Suits for prospective injunctive relief against State Officials in their “Official Capacity” is permitted under §1983
c. Hafer – Suits against State Officials in their “Individual Capacity” are permitted under §1983
7.) Official Immunity
a. Absolute Immunity (Functional Inquiry)
i. Judicial – Judges have A.I. when acting within their Judicial capacity [Stump]
ii. Legislative – Legislators and Legislative Aids (Alter Egos) have A.I. when acting within their Legislative Capacity [Gravel]
1. Art. I, §6 (Speech or Debate Clause) – Grants Legislative Immunity
2. Alter Ego – Administrative Staff that does not work directly for Congress is not entitled to A.I.
iii. Prosecutorial – Prosecutors have A.I. when acting in their Prosecutorial capacity as an advocate [Imbler], but not when acting in Administrative/Investigative capacity [Forsyth]
1. Failure to Train – Prosecutors enjoy A.I. for Failure to Train [Van de Kamp]
iv. President – President has A.I. for all acts within the “outer perimeter” of his Presidential responsibilities [Nixon]
1. Presidential Aids – Only entitled to Q.I. [Harlow]
b. Qualified Immunity
i. “Clearly Established Right” – In order to strip a Gov’t Official of his Qualified Immunity, P must prove Harlow’s 2-Step Inquiry:
1. Gov’t Official’s conduct violated a “Clearly Established” Constitutional or Statutory right
a. Clearly Established = Apparent Unlawfulness under pre-existing law [Hope]
2. An Objectively Reasonable Gov’t Official knew or should have known that the right was “Clearly Established”
ii. Discretion – Judges are permitted to exercise discretion in deciding which of the 2 prongs of the Harlow 2-Step inquiry to address first [Pearson v. Callahan]
iii. Appealable – Even if D is found to have violated a Constitutional right, but was protected by Q.I., the D is entitled to appeal the adverse ruling bc it sets precedent and has a prospective effect on whether future-D violates a ‘C.E. Right’ [Camreta]
iv. Exception: Advice of Counsel/Judge – Even if a Constitutional/Statutory right was “Clearly Established,” and even if a Reasonable Official knew or should have known that the right was “Clearly Established,” the Gov’t Official is entitled to Q.I. if he relies on advice of Counsel/Judge [Malley v. Briggs]
8.) Exhaustion Rules Under §1983
a. Patsy v. FL – State and Local Gov’t may not add exhaustion requirements to delay §1983 filings
i. Exceptions – (1) State Tax cases, and (2) Actions by Prisoners under PLRA
9.) Anti-Suit Injunctions
a. Ex Parte Young – 11th Amendment does not bar prospective injunctive relief against State Officers to enjoin them from violating Federal Law
i. 2 Limits on Ex Parte Young:
1. Applies only where the Party is seeking “Prospective Relief” [Edelman]
2. Federal Cts may not hear supplemental State Law claims [Pennhurst]
b. Fitzpatrick v. Bitzer – Congress can make States liable to suit in Federal Ct pursuant to its power under §5 of the 14th Amendment
i. Limitation – In order for §5 to trump the 11th Amendment, Cts require a “Clear Statement” from Congress (§1983 does not fall into this exception)
c. Statutory Limitations on Federal Courts
i. Anti-Injunction Act (28 USC §2283) – Federal Cts may not grant an Injunction to stay proceedings in a State Ct except:
1. As Expressly Authorized by an Act of Congress
2. Where Necessary in Aid of its Jx, or
3. To protect or effectuate its judgments
a. Atlantic Coast (1970) – Exceptions to §2283 are narrowly construed
ii. “Express Authorization” Exception to §2283
1. Mitchum v. Foster – §1983 is an Express Authorization under §2283, so Federal Cts may enjoin State Cts pursuant to a §1983 suit
a. Holding – “Express Authorization” = Implied Authorization
b. Express Authorization Factors:
i. Legislative History of Statute
ii. Whether Statute authorizes suits in Equity
iii. Dicta in prior cases indicating/permitting injunctions of State Ct proceedings under the Statute
iv. If Statute created a unique Federal right or remedy enforceable in a Federal Ct of equity, which could be frustrated in the Federal Proceeding were it not empowered to enjoin a State Ct proceeding
1. Purpose of §1983 – Interpose Federal Cts between States and Individuals to safeguard Federal Rights
iii. “Relitigation” Exception to §2283 – [Timing is Key*]
1. Chick Kam Choo – Federal Cts may enjoin State Ct proceedings under “Relitigation” Exception if the earlier Federal Ct ruling was based on the merits of the case, but not if it was based on Federal Ct procedures (e.g., res judicata)
a. Purpose of Relitigation Exception – To permit a Federal Ct to prevent State litigation of an issue that was previously decided by Federal Ct
2. Parsons Steel – P sued D simultaneously in Federal and State Ct on the same cause of action. Federal Ct decided first, ruling in favor of D. P then pursued the State Ct suit. D raised res judicata defense in State Ct, but State Ct held the earlier Federal ruling did not preclude State proceedings. State Ct found in favor of P. Then, D sought an injunction from Federal Ct to prevent enforcement of the State Ct judgment in order to effectuate the earlier Federal Ct ruling.
a. Holding – Federal Cts may not enjoin State Cts under the “Relitigation” Exception when State Ct has ruled on the merits of the res judicata (procedural) issue because Fed Cts must accept State Ct’s determination under the Full Faith and Credit Statute (§1738)
3. Test – If Federal Ct already decided the issue on the merits, Party may invoke Relitigation Exception of §2283 to stay State Ct proceedings [Chick Kam]
a. But, even if Federal Ct already decided the issue on the merits, if Party relitigates the issue in State Ct, and other-Party raises a defense and it’s decided by State Ct, Relitigation Exception does not apply bc of FF and Credit, so Federal Ct must accept State Ct’s decision [Parsons Steel]
VIII. Abstention Doctrines
1.) Pullman Abstention
a. Pullman (1941) – Where State Law is uncertain and clarification of State Law by State Ct might make Fed Ct’s determination of a Constitutional issue unnecessary, Fed Ct should abstain and stay proceedings until the State Ct has had an opportunity to resolve the uncertainty of State law
i. 2 Factors – In order for Federal Cts to abstain from cases properly within their Jx:
1. “Substantial Uncertainty” about the meaning of State law, and there’s a State law claim in the case, and
2. “Reasonable Possibility” that the State Cts clarification of State law will obviate the need for a Federal Constitutional ruling [Constitutional Avoidance Doctrine]
b. Harris County v. Moore – Federal Ct applied Pullman Abstention to stay proceedings. State refused to rule on the case if it remained on the Federal Cts docket.
i. Rule – In order to remove any obstacles to State Ct jx, Federal Cts must dismiss the complaint w/o prejudice
c. Coates – Federal Cts may not stay proceedings (Pullman) in 1st Amendment cases unless there’s a strong likelihood that State clarification will avoid Federal Constitutional ruling
d. Claim Preservation – In order for P to preserve his claim while in State Ct, P must formally, on the record, make it reasonably clear that he is preserving his Federal claim [England]
e. Answer to Pullman  Certification Process
i. Certification – SCOTUS and Federal CoA’s may invoke State procedures that permit them to submit legal questions to SSC to resolve; only some States allow DCs to
2.) Burford Abstention
a. Burford (1943) – Federal Cts may dismiss (not “stay”) proceedings where there is (1) Unclear State Law, (2) State’s scarce resources are involved, and (3) there is a need to defer to complex State administrative procedures
i. 2 Limits on Burford – (State [not Local] issues must predominate over Federal issues)
1. Burford Abstention does NOT apply to damages (only equitable relief)
2. Colorado River (1976) – Burford Abstention is appropriate only where:
a. There are difficult issues of State law bearing on policies that transcend the case at bar, or
b. Exercise of Federal review would disrupt State efforts to establish a uniform policy w/ respect to a matter of Substantial State concern
3.) Thibodaux Abstention
a. Thibodaux (1959) – Federal Cts may dismiss proceedings (1) in Diversity cases, if there is (2) Unclear State Law, and (3) Important State or Local Interests that are intimately involved w/ State Sovereignty
i. Facts – Eminent domain (Constitutional “takings”) + unclear State law based on diversity
4.) Younger Abstention
a. Younger – Fed Cts must not enjoin State criminal proceedings.
i. Exceptions:
1. Bad Faith (e.g., Abusive State Official) [Dombrowski], or
2. State law is Clearly Unconstitutional in every respect [Dombrowski]
3. Inadequate State forum (e.g., Extreme Bias or No Available State remedy)
4. Waiver – If State voluntarily submits to Federal Forum by not raising Abstention
b. Declaratory Relief
i. Declaratory Judgment Act §2202 – Ripens declaratory judgment into injunction
ii. Declaratory Relief + Current Prosecution – Federal Cts may not provide a P w/ Declaratory Relief when P is already being prosecuted in State Ct proceedings [Mackell]
1. Younger Abstention applies
iii. Declaratory Relief + Threatened Prosecution – Federal Cts may provide P w/ Declaratory Relief when State criminal prosecution is only threatened, not ongoing [Steffel]
iv. Federal Ct’s Embryonic Stage – If a State prosecution is commenced before any proceedings of “substance on the merits” have taken place in Federal Ct, the Federal Ct may not provide Declaratory relief [Hicks]
1. Younger applies
i. Salem Inn (1975) – 3 P’s sought declaratory and preliminary injunctive relief in Federal Ct to prevent enforcement of Ordinance that prohibited topless dancing. After Federal suit filed and a temporary restraining order denied, 1 P resumed topless dancing. State criminal proceedings were begun against that 1 P. Subsequently, Federal DC granted preliminary injunctive relief to all 3 P’s. SCOTUS affirmed the preliminary injunction granted to 2 P’s, but not the 1 P who was being prosecuted in State Ct.
1. Holding – Existence of State criminal proceedings against 1 P did not keep other 2 P’s out of Federal Cts
b. Extension of Younger Abstention to Civil Cases (applies to both ongoing and pending)
i. Huffman – State Officials instituted civil nuisance proceeding against Adult theatre for violating OH Statute. Theatre sought injunctive + declaratory relief in Fed Ct. Fed Ct ruled in favor of Threatre. SCOTUS reversed, holding that Younger Abstention applied.
1. Rule – Since State was a party to the State nuisance proceeding, & OH Statute was in aid of and closely related to Criminal Statutes bc State wanted to shut down the business, Younger applies.
ii. Sprint v. Jacobs (2013)
1. Younger Abstention is appropriate only when Federal Cts are faced with:
a. State Criminal prosecutions
b. Certain State Civil enforcement proceedings [Huffman], and
c. State Civil proceedings involving certain orders uniquely in furtherance of the State Ct’s ability to perform their judicial functions [Pennzoil]
iii. Trainer v. Hernandez – Younger Abstention applies in State Civil proceedings in which the State is a party if the State could have initiated a criminal enforcement action
iv. NOPSI – Younger Abstention does NOT apply to all instances where there are State Ct Civil proceedings or pending State Ct Civil proceedings
v. OH Civil Rights Comms’n v. Dayton Christian Schools – Younger applies when there are State administrative proceedings “in which important State interests are vindicated, only if in the course of those proceedings the P would have a fully and fair opportunity to litigate his Constitutional claim”
1. Rule – If no State administrating proceedings are pending, P may go to Federal Ct w/o using available State administrative remedies – but, once Administrative actions are initiated, Younger applies if important State interests are at stake.
c. Younger Abstention’s Relationship to the Anti-Injunction Act (28 USC §2283)
i. Younger – P brought suit under §1983, but SCOTUS refused to allow Federal Ct to enjoin the State Ct proceedings [i.e., Younger Abstention did NOT apply]
1. Thus, Younger creates a separate and independent barrier to Federal Ct injunctions
ii. Test – How to obtain an Injunction where Younger Abstention Applies (e.g., §1983)
1. Mitchum – Case must fit within exception to §2283 (Anti-Injunction Act), and
2. Younger – Case must fit within an exception to the Younger principle
IX. habeas corpus
1.) Tarble’s Case (1872) – State Cts have no jx to issue habeas to release prisoners held by Federal Gov’t
2.) Post-Conviction
a. Suspension Clause
i. Art. I, §9 – “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”
1. Issue – May Congress jx-strip habeas corpus from Federal Ct review?
a. Boumediene (2008) – Suspension Clause imposes serious limits on the ability of Congress to strip habeas jx from Federal Ct or SCOTUS review
a. McCardle (1869) – Congress may Jx-strip SCOTUS’s Appellate Jx under “Exceptions Clause” only if there remains some avenue available to the P
b. Bollman (1807) – Habeas Corpus is an exercise of SCOTUS’ Appellate Jx, so Congress may strip habeas jx from SCOTUS review
b. Procedural Default
i. Lee v. Kemna (2002) – Claims raised in Federal habeas petitions must have been presented to State Cts in accordance w/ State procedural law
ii. Coleman v. Thompson – If habeas-Petitioner defaulted his claims pursuant to an A&I State procedural rule, Federal habeas review of the claim is barred unless:
1. Petitioner can demonstrate:
a. Cause for the default, and
b. Actual Prejudice as a result of the alleged violation of Federal Law, or
c. Failure to hear the claim will result in a fundamental miscarriage of justice
c. Warren Court Expansion of Habeas Corpus
i. Brown v. Allen (1953) – Federal Cts must relitigate Federal Constitutional claims on habeas corpus even if they were fully litigated and decided by State Cts
1. Procedure Federal District Cts must use to judge habeas claims:
a. State Exhaustion of Remedies is required
b. Habeas-Petitioner must make a prima facie case
c. Record of State proceedings is favored
d. Review extends to questions of law, not facts, decided by State Cts
i. However, to decide the Constitutional issue, Federal DC Judges must look very close at the record (so review of facts permitted)
d. Rehnquist Court Retrenchment of Habeas Corpus
i. Stone v. Powell (1976) – [Exception to Brown v. Allen] 4th Amendment “Exclusionary Rule” claims cannot be raised on habeas if the State Ct provided a full and fair hearing
1. Rationale – Exclusionary Rule only blocks Prosecutors use of evidence that is inculpatory, not exculpatory, so it does not benefit the P; therefore, there is no grounds for habeas relief bc it doesn’t depend on guilt or innocence
2. Winthrow v. Williams (1993) – Miranda violations are subject to habeas review because, unlike the Exclusionary Rule, Miranda safeguards fundamental trial rights that involve the ascertainment of guilt or innocence
e. Actual Innocence and Suspension Clause
i. Actual Innocence
1. Herrera (1993) – “Free-Standing Actual Innocence” claims are insufficient
a. Rule – Actual Innocence + Underlying Constitutional violation is required
b. O’Connor Concurrence – “Truly persuasive demonstrations of actual innocence would render the execution of the prisoner Unconstitutional, so habeas relief would be warranted if no State avenue were open to process the claim [see House v. Bell]
ii. Suspension Clause (Art. I, §6)
1. Issue – Whether a Statutory procedure that replaces Constitutional habeas relief violates the Suspension Clause?
2. Swain v. Pressley (1997) – If a State law replaces Federal habeas corpus w/ a statutory motion in local courts for persons convicted of local crimes, it does not violate the Suspension Clause
3. Felkin v. Terpin (1996) – P challenged AEDPA of 1996, which restricted the ability of State prisoners to file more than 1 habeas petition in Federal Ct
a. Holding – Ct cites Bollman and says there was no suspension (or jx-stripping; just a modification) – Congress may define habeas rights
4. INS v. St Cyr (2001) – Habeas rights must at least be equal to those available in 1789, so respondents in Executive Detention are entitled to some form of habeas
3.) Habeas After AEDPA
a. Teague (1989) – P brought habeas case on direct review and relief was denied, then 6th Amendment issue [Batson] is decided. Issue – Whether P can raise Batson on collateral attack?
i. Teague Analysis:
1. Determine the date P’s conviction became Final by lower Ct
2. Determine whether the rule the Habeas Petitioner claims was violated on direct review was Clearly Established by SCOTUS at the time the conviction became final [Old Rule] – if so, P is entitled to habeas review for a collateral attack
a. If the Rule P claims was violated did not exist at that time, it’s a New Rule
3. If an Old Rule did not exist, then apply Teague:
a. First, if the Ct agreed w/ Petitioner, would the New Rule be Retroactive?
i. [High Burden] New Rule applies Retroactively if:
1. Constitutionally Protected Primary Conduct – New Rule provides that the conduct for which D was prosecuted is now Constitutionally protected, or
2. Implicit in the Concept of Ordered Liberty – New Rule implicates fundamental fairness & bears on guilt/innocence
b. If New Rule will not apply Retroactively, P not entitled to habeas review
c. If New Rule apply Retroactively, P entitled to collateral habeas review
ii. Holding – On collateral attack, Federal Cts will not grant habeas petitions asking the Ct to recognize a New Right unless such a right would be applied Retroactively
1. On direct review, SCOTUS may recognize a New Right
b. AEPDA (1996)
i. §2244(d) – 1-Year Statute of Limitations
ii. §2244(b) – Prisoners only entitled to file 1 habeas petition, unless
1. New Rule announced by SCOTUS, which SCOTUS held to be Retroactive, or
2. Where the Prisoner relies on a factual predicate that could not have been previously discovered through the exercise of reasonable diligence, and
3. The facts underlying the claim would establish by Clear and Convincing evidence that but-for the Constitutional error, no reasonable fact-finder would have found the Prisoner guilty of the underlying offense
c. Williams v. Taylor (2000) – Under §2254(d), Federal Cts may review collateral habeas attacks by State Prisoners only if the State Ct decision “was contrary to” or involved an “unreasonable application of” Clearly Established Federal Law, as determined by SCOTUS
i. “Contrary to” – State Ct decision is “contrary” to SCOTUS precedent if it contradicts that decision or reaches a different result on facts that are materially the same
1. Holding – If State Ct identifies wrong Legal rule, P is entitled to habeas review
ii. “Unreasonable Application of” – State Ct decision is an “unreasonable application” of SCOTUS precedent if State Ct identified the correct Legal rule, but applied it objectively unreasonably to the particular facts of the P’s case
1. Factual Findings – Federal Cts must presume State’s factual findings are correct, and the presumption may be rebutted only by Clear and Convincing Evidence
2. Holding – Federal Ct may not grant habeas review merely bc it concludes that the State Ct decision applied the clearly established Federal Law incorrectly – rather, the application must be Objectively Unreasonable [see Harrington]
iii. Stevens Dissent – “Unreasonable Application” is the same thing as “Contrary to”
1. “Error is Error” – If the State Ct made an incorrect application of Federal Law, then it was an Unreasonable Application of clearly established Federal Law
d. Padilla v. Kentucky (2010) – Garden variety application of the standards of ineffective assistance of Counsel set forth in Strickland do not produce New Rules
e. Harrington v. Richter (2011) – Even if the SSC denies the habeas petition in a 1 word sentence, collateral habeas review may be denied because SCOTUS held that habeas review may be granted only if the requirements of §2254(d) were met.
i. “Objectively Unreasonable” defined – Federal Ct may grant habeas review only if all reasonable jurists would agree that the lower Ct judgment was unreasonable
f. Wainwright v. Sykes (1977) – D’s must show (1) Cause and (2) Prejudice before presenting a matter on habeas corpus that was not raised in trial
i. §2254(e)(2) – Federal Cts may not allow additional evidence unless:
1. New Rule announced by SCOTUS, which SCOTUS held to be Retroactive, or
2. Where the Prisoner relies on a factual predicate that could not have been previously discovered through the exercise of reasonable diligence, and
3. The facts underlying the claim would establish by Clear and Convincing evidence that but-for the Constitutional error, no reasonable fact-finder would have found the Prisoner guilty of the underlying offense

[Fireworks2016]

tagging -- Practice Exams would be clutch.