[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article III. Judicial Department]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 593]]

                        ARTICLE III --- JUDICIAL DEPARTMENT



        Section 1. Judicial Power, Courts, Judges.................   597
        Organization of Courts, Tenure, and Compensation of Judges   597
                One Supreme Court.................................   598
                Inferior Courts...................................   599
                        Abolition of Courts.......................   600
                Compensation......................................   600
                        Diminution of Salaries....................   600
                Courts of Specialized Jurisdiction................   602
                Legislative Courts: The Canter Case...............   604
                        Power of Congress Over Legislative Courts.   605
                        Review of Legislative Courts by Supreme 
                            Court.................................   606
                        The ``Public Rights'' Distinction.........   607
                        Constitutional Status of the Court of 
                            Claims and the Court of Customs and 
                            Patent Appeals........................   610
                        Status of Courts of the District of 
                            Columbia..............................   611
                        Bankruptcy Courts.........................   613
                        Agency Adjudication.......................   615
                Noncourt Entities in the Judicial Branch..........   617
        Judicial Power............................................   618
        Characteristics and Attributes of Judicial Power..........   618
                ``Shall Be Vested''...............................   619
        Finality of Judgment as an Attribute of Judicial Power....   620
                Award of Execution................................   621
        Ancillary Powers of Federal Courts........................   623
        The Contempt Power........................................   623
                Categories of Contempt............................   623
                The Act of 1789...................................   625
                An Inherent Power.................................   625
                First Amendment Limitations on the Contempt Power.   627
                Due Process Limitations on Contempt Power: Right 
                    to Notice and to a Hearing Versus Summary 
                    Punishment....................................   629
                Due Process Limitations on Contempt Power: Right 
                    to Jury Trial.................................   630
                Due Process Limitations on Contempt Power: 
                    Impartial Tribunal............................   631
                Contempt by Disobedience of Orders................   634
                Contempt Power in Aid of Administrative Power.....   634
        Sanctions Other than Contempt.............................   635
        Power to Issue Writs: The Act of 1789.....................   636
                Common Law Powers of District of Columbia Courts..   637
                Habeas Corpus: Congressional and Judicial Control.   638
                Habeas Corpus: The Process of the Writ............   639
        Congressional Limitation of the Injunctive Power..........   641
                Injunctions Under the Emergency Price Control Act 
                    of 1942.......................................   643
        The Rule-Making Power and Powers Over Process.............   644

[[Page 594]]

                Limitations to This Power.........................   645
                Appointment of Referees, Masters, and Special Aids   646
                Power to Admit and Disbar Attorneys...............   646
        Section 2. Judicial Power and Jurisdiction................   647
        Clause 1. Cases and Controversies; Grants of Jurisdiction.   647
                Judicial Power and Jurisdiction--Cases and 
                    Controversies.................................   648
                        The Two Classes of Cases and Controversies   649
                        Adverse Litigants.........................   651
                                Collusive and Feigned Suits.......   652
                                Stockholder Suits.................   653
                        Substantial Interest: Standing............   654
                                Citizens Suits....................   655
                                Taxpayer Suits....................   656
                                Constitutional Standards: Injury 
                                    in Fact and Causation.........   658
                                Prudential Standing Rules.........   661
                                Standing to Assert the 
                                    Constitutional Rights of 
                                    Others........................   662
                                Organizational Standing...........   665
                                Standing of States to Represent 
                                    Their Citizens................   665
                                Standing of Members of Congress...   666
                                Standing to Challenge 
                                    Nonconstitutional Governmental 
                                    Action........................   668
                        The Requirement of a Real Interest........   670
                                Advisory Opinion..................   671
                                Declaratory Judgment..............   673
                                Ripeness..........................   676
                                Mootness..........................   679
                                Retroactivity versus Prospectivity   683
                        Political Questions.......................   687
                                Origins and Development...........   688
                                The Doctrine Before Baker v. Carr.   689
                                Baker v. Carr.....................   693
                                Powell v. McCormack...............   694
                                The Doctrine Reappears............   696
                Judicial Review...................................   698
                        The Establishment of Judicial Review......   698
                                Marbury v. Madison................   701
                                Judicial Review and National 
                                    Supremacy.....................   703
                        Limitations on the Exercise of Judicial 
                            Review................................   705
                                Constitutional Interpretation.....   705
                                Prudential Considerations.........   706
                                The Doctrine of ``Strict 
                                    Necessity''...................   707
                                The Doctrine of Clear Mistake.....   708
                                Exclusion of Extra-Constitutional 
                                    Tests.........................   709
                                Presumption of Constitutionality..   710
                                Disallowance by Statutory 
                                    Interpretation................   710
                                Stare Decisis in Constitutional 
                                    Law...........................   711
                                Conclusion........................   712
                Jurisdiction of Supreme Court and Inferior Federal 
                    Courts........................................   713
                        Cases Arising Under the Constitution, 
                            Laws, and Treaties of the United 
                            States................................   713
                                Development of Federal Question 
                                    Jurisdiction..................   713
                                When a Case Arises Under..........   714

[[Page 595]]

                                Removal From State Court to 
                                    Federal Court.................   716
                                Corporations Chartered by Congress   717
                                Federal Questions Resulting from 
                                    Special Jurisdictional Grants.   718
                                Civil Rights Act Jurisdiction.....   719
                                Pendent Jurisdiction..............   721
                                Protective Jurisdiction...........   722
                                Supreme Court Review of State 
                                    Court Decisions...............   723
                        Suits Affecting Ambassadors, Other Public 
                            Ministers, and Consuls................   726
                        Cases of Admiralty and Maritime 
                            Jurisdiction..........................   728
                                Power of Congress to Modify 
                                    Maritime Law..................   728
                                Admiralty and Maritime Cases......   732
                                Admiralty Proceedings.............   735
                                Territorial Extent of Admiralty 
                                    and Maritime Jurisdiction.....   736
                                Admiralty and Federalism..........   737
                        Cases to Which the United States Is a 
                            Party.................................   743
                                Right of the United States to Sue.   743
                                Suits Against States..............   745
                                Immunity of the United States From 
                                    Suit..........................   746
                                Suits Against United States 
                                    Officials.....................   748
                                Suits Against Government 
                                    Corporations..................   751
                        Suits Between Two or More States..........   752
                                Boundary Disputes: The Law Applied   752
                                Modern Types of Suits Between 
                                    States........................   753
                                Cases of Which the Court Has 
                                    Declined Jurisdiction.........   755
                                The Problem of Enforcement: 
                                    Virginia v. West Virginia.....   756
                        Controversies Between a State and Citizens 
                            of Another State......................   757
                                Jurisdiction Confined to Civil 
                                    Cases.........................   758
                                The State's Real Interest.........   758
                                The State as Parens Patriae.......   759
                        Controversies Between Citizens of 
                            Different States......................   761
                                The Meaning of ``State'' and the 
                                    District of Columbia Problem..   762
                                Citizenship of Natural Persons....   763
                                Citizenship of Corporations.......   764
                                Manufactured Diversity............   766
                                The Law Applied in Diversity Cases   767
                        Controversies Between Citizens of the Same 
                            State Claiming Land Under Grants of 
                            Different States......................   773
                        Controversies Between a State, Or the 
                            Citizens Thereof, and Foreign States, 
                            Citizens, or Subjects.................   774
                                Suits by Foreign States...........   774
                                Indian Tribes.....................   775
                                Narrow Construction of the 
                                    Jurisdiction..................   776
        Clause 2. Original and Appellate Jurisdiction; Exceptions 
            and Regulations of Appellate Jurisdiction.............   776
                The Original Jurisdiction of the Supreme Court....   776
                Power of Congress to Control the Federal Courts...   779
                        The Theory of Plenary Congressional 
                            Control...............................   779
                                Appellate Jurisdiction............   780
                                Jurisdiction of the Inferior 
                                    Federal Courts................   782
                                Congressional Control Over Writs 
                                    and Processes.................   785
                        The Theory Reconsidered...................   786

[[Page 596]]

                                Express Constitutional 
                                    Restrictions on Congress......   791
                                Conclusion........................   792
                Federal-State Court Relations.....................   792
                        Problems Raised by Concurrency............   792
                        The Autonomy of State Courts..............   794
                                Noncompliance With and 
                                    Disobedience of Supreme 
                                    Court's Orders by State Courts   794
                                Use of State Courts in Enforcement 
                                    of Federal Law................   795
                                State Interference with Federal 
                                    Jurisdiction..................   797
                        Conflicts of Jurisdiction: Rules of 
                            Accommodation.........................   798
                                Comity............................   798
                                Abstention........................   798
                                Exhaustion of State Remedies......   800
                                Anti-Injunction Statute...........   801
                                Res Judicata......................   802
                                Three-Judge Court Act.............   803
                        Conflicts of Jurisdiction: Federal Court 
                            Interference with State Courts........   803
                                Federal Restraint of State Courts 
                                    by Injunctions................   804
                                Habeas Corpus.....................   809
                                Removal...........................   819
        Clause 3. Trial by Jury...................................   821
        Section 3. Treason........................................   821
        Clause 1. Definition and Limitations......................   821
                Treason...........................................   821
                        Levying War...............................   822
                                The Burr Trial....................   823
                        Aid and Comfort to the Enemy..............   824
                                The Cramer Case...................   824
                                The Haupt Case....................   824
                                The Kawakita Case.................   826
                        Doubtful State of the Law of Treason Today   827
        Clause 2. Punishment......................................   827
                Corruption of the Blood and Forfeiture............   827

[[Page 597]]


                               ARTICLE III

                           JUDICIAL DEPARTMENT

  Section 1. The judicial Power of the United States, shall be vested in 
one supreme Court, and in such inferior Courts as the Congress may from 
time to time ordain and establish. The Judges, both of the supreme and 
inferior Courts, shall hold their Offices during good Behaviour, and 
shall, at stated Times, receive for their Services, a Compensation, 
which shall not be diminished during their Continuance in Office.


        The Constitution is almost completely silent concerning the 
organization of the federal judiciary. ``That there should be a national 
judiciary was readily accepted by all.''\1\ But whether it was to 
consist of one high court at the apex of a federal judicial system or a 
high court exercising appellate jurisdiction over state courts that 
would initially hear all but a minor fraction of cases raising national 
issues was a matter of considerable controversy.\2\ The Virginia Plan 
provided for a ``National judiciary [to] be established to consist of 
one or more supreme tribunals, and of inferior tribunals to be chosen by 
the National Legislature. . . . ''\3\ In the Committee of the Whole, the 
proposition ``that a national judiciary be established'' was unanimously 
adopted,\4\ but the clause ``to consist of One supreme tribunal, and of 
one or more inferior tribunals''\5\ was first agreed to, then 
reconsidered, and the provision for inferior tribunals stricken out, it 
being argued that state courts could adequately adjudicate all necessary 
matters while the supreme tribunal would protect the national interest 
and assure uniformity.\6\

[[Page 598]]
Wilson and Madison thereupon moved to authorize Congress ``to appoint 
inferior tribunals,''\7\ which carried the implication that Congress 
could in its discretion either designate the state courts to hear 
federal cases or create federal courts. The word ``appoint'' was adopted 
and over the course of the Convention changed into phrasing that 
suggests something of an obligation on Congress to establish inferior 
federal courts.\8\ The ``good behavior'' clause excited no 
controversy,\9\ while the only substantial dispute with regard to 
denying Congress the power to intimidate judges through actual or 
threatened reduction of salaries came on Madison's motion to bar 
increases as well as decreases.\10\

        \1\M. Farrand, The Framing of the Constitution of the United 
States (New Haven: 1913), 79.
        \2\The most complete account of the Convention's consideration 
of the judiciary is J. Goebel, Antecedents and Beginnings to 1801, 
History of the Supreme Court of the United States, Vol. 1 (New York: 
1971), ch. 5.
        \3\1 M. Farrand, op. cit., n. 1, 21-22. That this version might 
not possibly be an accurate copy, see 3 id., 593-594.
        \4\1 id., 95, 104.
        \5\Id., 95, 105. The words ``One or more'' were deleted the 
following day without recorded debate. Id., 116, 119.
        \6\Id., 124-125.
        \7\Madison's notes use the word ``institute'' in place of 
``appoint'', id., 125, but the latter appears in the Convention Journal, 
id., 118, and in Yates' notes, id., 127, and when the Convention took up 
the draft reported by the Committee of the Whole ``appoint'' is used 
even in Madison's notes. 2 id., 38, 45.
        \8\On offering their motion, Wilson and Madison ``observed that 
there was a distinction between establishing such tribunals absolutely, 
and giving a discretion to the Legislature to establish or not establish 
them.'' 1 id., 125. The Committee on Detail provided for the vesting of 
judicial power in one Supreme Court ``and in such inferior Courts as 
shall, when necessary, from time to time, be constituted by the 
legislature of the United States.'' 2 id., 186. Its draft also 
authorized Congress ``[t]o constitute tribunals inferior to the Supreme 
Court.'' Id., 182. No debate is recorded when the Convention approved 
these two clauses, Id. 315, 422-423, 428-430. The Committee on Style 
left the clause empowering Congress to ``constitute'' inferior tribunals 
as was, but it deleted ``as shall, when necessary'' from the Judiciary 
article, so that the judicial power was vested ``in such inferior courts 
as Congress may from time to time''--and here deleted ``constitute'' and 
substituted the more forceful--``ordain and establish.'' Id., 600.
        \9\The provision was in the Virginia Plan and was approved 
throughout, 1 id., 21.
        \10\Id, 121; 2 id., 44-45, 429-430.
      One Supreme Court

        The Convention left up to Congress decision on the size and 
composition of the Supreme Court, the time and place for sitting, its 
internal organization, save for the reference to the Chief Justice in 
the impeachment provision,\11\ and other matters. These details Congress 
filled up in the Judiciary Act of 1789, one of the seminal statutes of 
the United States.\12\ By the Act, the Court was made to consist of a 
Chief Justice and five Associate Justices.\13\ The number was gradually 
increased until it reached a total of ten under the act of March 3, 
1863.\14\ As one of the Reconstruction Congress' restrictions on 
President Andrew Johnson, the number

[[Page 599]]
was reduced to seven as vacancies should occur.\15\ The number actually 
never fell below eight before the end of Johnson's term, and Congress 
thereupon made the number nine.\16\

        \11\Article I, Sec. 3.
        \12\Act of September 24, 1789, 1 Stat. 73. The authoritative 
works on the Act and its working and amendments are F. Frankfurter & J. 
Landis, The Business of the Supreme Court (New York: 1928); Warren, New 
Light on the History of the Federal Judicial Act of 1789, 37 Harv. L. 
Rev. 49 (1923); see also J. Goebel, op. cit., n. 2, ch. 11.
        \13\Act of September 24, 1789, 1 Stat. 73, Sec. 1.
        \14\12 Stat. 794, Sec. 1.
        \15\Act of July 23, 1866, 14 Stat. 209, Sec. 1.
        \16\Act of April 10, 1869, 16 Stat. 44.

        Proposals have been made at various times for an organization of 
the Court into sections or divisions. No authoritative judicial 
expression is available, although Chief Justice Hughes in a letter to 
Senator Wheeler in 1937 expressed doubts concerning the validity of such 
a device and stated that ``the Constitution does not appear to authorize 
two or more Supreme Courts functioning in effect as separate 

        \17\Hearings before the Senate Judiciary Committee on S. 1392, 
Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 
491. For earlier proposals to have the Court sit in divisions, see F. 
Frankfurter & J. Landis, op. cit., n. 12, 74-85.

        Congress has also determined the time and place of sessions of 
the Court. It utilized this power once in 1801 to change its terms so 
that for fourteen months the Court did not convene, so as to forestall a 
constitutional attack on the repeal of the Judiciary Act of 1801.\18\

        \18\1 C. Warren, The Supreme Court in United States History 
(Boston: rev. ed. 1926), 222-224.
      Inferior Courts

        Congress also acted in the Judiciary Act of 1789 to create 
inferior courts. Thirteen district courts were constituted to have four 
sessions annually,\19\ and three circuit courts were established to 
consist jointly of two Supreme Court justices each and one of the 
district judges of such districts which were to meet twice annually in 
the various districts comprising the circuit.\20\ This system had 
substantial faults in operation, not the least of which was the burden 
imposed on the Justices who were required to travel thousands of miles 
each year under bad conditions.\21\ Despite numerous ef

[[Page 600]]
forts to change this system, it persisted, except for one brief period, 
until 1891.\22\ Since then, the federal judicial system has consisted of 
district courts with original jurisdiction, intermediate appellate 
courts, and the Supreme Court.

        \19\Act of September 24, 1789, 1 Stat. 73, Sec. Sec. 2-3.
        \20\Id., 74, Sec. Sec. 4-5
        \21\Cf. F. Frankfurter & J. Landis, op. cit., n. 12, chs. 1-3: 
J. Goebel. op. cit., n. 2, 554-560, 565-569. Upon receipt of a letter 
from President Washington soliciting suggestions regarding the judicial 
system, Writings of George Washington, J. Fitzpatrick ed., (Washington: 
1943), 31, Chief Justice Jay prepared a letter for the approval of the 
other Justices, declining to comment on the policy questions but raising 
several issues of constitutionality, that the same man should not be 
appointed to two offices, that the offices were incompatible, and that 
the act invaded the prerogatives of the President and Senate. 2 G. 
McRee, Life and Correspondence of James Iredell (New York: 1858), 293-
296. The letter was apparently never forwarded to the President. 
Writings of Washington, op. cit., 31-32 n. 58. When the constitutional 
issue was raised in Stuart v. Laird, 1 Cr. (5 U.S.) 299, 309 (1803), it 
was passed over with the observation that the practice was too 
established to be questioned.
        \22\Act of March 3, 1891, 26 Stat. 826. The temporary relief 
came in the Act of February 13, 1801, 2 Stat. 89, which was repealed by 
the Act of March 8, 1802, 2 Stat. 132.

        Abolition of Courts.--That Congress ``may from time to time 
ordain and establish'' inferior courts would seem to imply that the 
system may be reoriented from time to time and that Congress is not 
restricted to the status quo but may expand and contract the units of 
the system; but if the judges are to have life tenure what is to be done 
with them when the system is contracted? Unfortunately, the first 
exercise of the power occurred in a highly politicized situation, and no 
definite answer emerged. By the Judiciary Act of February 13, 1801,\23\ 
passed in the closing weeks of the Adams Administration, the districts 
were reorganized, and six circuit courts consisting of three circuit 
judges each were created. Adams filled the positions with deserving 
Federalists, and upon coming to power the Jeffersonians set in motion 
plans to repeal the Act, which were carried out.\24\ No provision was 
made for the displaced judges, apparently under the theory that if there 
were no courts there could be no judges to sit on them.\25\ The validity 
of the repeal was questioned in Stuart v. Laird,\26\ where Justice 
Paterson scarcely noticed the argument in rejecting it.

        \23\Act of February 13, 1801, 2 Stat. 89.
        \24\Act of March 8, 1802, 2 Stat. 132. F. Frankfurter & J. 
Landis, op. cit., n. 12, 25-32; 1 C. Warren, op. cit., n. 18, 185-215.
        \25\This was the theory of John Taylor of Caroline, upon whom 
the Jeffersonians in Congress relied. W. Carpenter, Judicial Tenure in 
the United States (New Haven: 1918), 63-64. The controversy is recounted 
fully in id., 58-78.
        \26\1 Cr. (5 U.S.) 299 (1803).

        Not until 1913 did Congress again utilize its power to abolish a 
federal court, this time the unfortunate Commerce Court, which had 
disappointed the expectations of most of its friends.\27\ But this time 
Congress provided for the redistribution of the Commerce Court judges 
among the circuit courts as well as a transfer of its jurisdiction to 
the district courts.

        \27\The Court was created by the Act of June 18, 1910, 36 Stat. 
539, and repealed by the Act of October 22, 1913, 38 Stat. 208, 219. See 
F. Frankfurter & J. Landis, op. cit., n. 12, 153-174; W. Carpenter, op. 
cit., n. 25, 78-94.

        Diminution of Salaries.--``The Compensation Clause has its roots 
in the longstanding Anglo-American tradition of an independent 
Judiciary. A Judiciary free from control by the Executive and the 
Legislature is essential if there is a right to have claims de

[[Page 601]]
cided by judges who are free from potential domination by other branches 
of government.''\28\ Thus, once a salary figure has gone into effect, 
Congress may not reduce it nor rescind any part of an increase, although 
prior to the time of its effectiveness Congress may repeal a promised 
increase. This decision was rendered in the context of a statutory 
salary plan for all federal officers and employees under which increases 
went automatically into effect on a specified date. Four years running, 
Congress interdicted the pay increases, but in two instances the 
increases had become effective, raising the barrier of this clause.\29\

        \28\United States v. Will, 449 U.S. 200, 217-218 (1980). 
Hamilton, writing in The Federalist, No. 79 (J. Cooke ed., 1961), 531, 
emphasized that ``[i]n the general course of human nature, a power over 
a man's subsistence amounts to a power over his will.''
        \29\United States v. Will, 449 U.S. 200, 224-230 (1980). In one 
year, the increase took effect of October 1, while the President signed 
the bill reducing the amount during the day of October 1. The Court held 
the increase had gone into effect by the time the reduction was signed. 
Will is also authority for the proposition that a general, 
nondiscriminatory reduction, affecting judges but not aimed solely at 
them, is covered by the clause. Id., 226.

        Also implicating this clause was a Depression-era appropriations 
act reducing ``the salaries and retired pay of all judges (except judges 
whose compensation may not, under the Constitution, be diminished during 
their continuance in office),'' by a fixed amount. While this provision 
presented no questions of its own constitutionality, it did require an 
interpretation of which judges the clause applied to in order to prevent 
the reductions. Judges in the District of Columbia were held protected 
by Article III,\30\ while, on the other hand, salaries of the judges of 
the Court of Claims, that being a legislative court, were held subject 
to the reduction.\31\

        \30\O'Donoghue v. United States, 289 U.S. 516 (1933).
        \31\Williams v. United States, 289 U.S. 553 (1933). But see 
Glidden Company v. Zdanok, 370 U.S. 530 (1962).

        In Evans v. Gore,\32\ the Court invalidated the application of 
the income tax law to a federal judge, over the strong dissent of 
Justice Holmes, who was joined by Justice Brandeis. This ruling was 
extended, in Miles v. Graham,\33\ to exempt the salary of a judge of the 
Court of Claims appointed subsequent to the enactment of the taxing act. 
Evans v. Gore was disapproved, and Miles v. Graham was in effect 
overruled in O'Malley v. Woodrough,\34\ where the Court upheld section 
22 of the Revenue Act of 1932, which extended the application of the 
income tax to salaries of judges taking office after June 6, 1932. Such 
a tax was regarded neither as an unconstitutional diminution of the 
compensation of

[[Page 602]]
judges nor as an encroachment on the independence of the judiciary.\35\ 
To subject judges who take office after a stipulated date to a 
nondiscriminatory tax laid generally on an income, said the Court ``is 
merely to recognize that judges are also citizens, and that their 
particular function in government does not generate an immunity from 
sharing with their fellow citizens the material burden of the government 
whose Constitution and laws they are charged with administering.''\36\

        \32\253 U.S. 245 (1920).
        \33\268 U.S. 501 (1925).
        \34\307 U.S. 277 (1939).
        \35\Id., 278-282.
        \36\Id., 282.
      Courts of Specialized Jurisdiction

        By virtue of its power ``to ordain and establish'' courts, 
Congress has occasionally created courts under Article III to exercise a 
specialized jurisdiction. These tribunals are like other Article III 
courts in that they exercise ``the judicial power of the United 
States,'' and only that power, that their judges must be appointed by 
the President and the Senate and must hold office during good behavior 
subject to removal by impeachment only, and that the compensation of 
their judges cannot be diminished during their continuance in office. 
One example of such courts was the Commerce Court created by the Mann-
Elkins Act of 1910,\37\ which was given exclusive jurisdiction of all 
cases to enforce orders of the Interstate Commerce Commission except 
those involving money penalties and criminal punishment, of cases 
brought to enjoin, annul, or set aside orders of the Commission, of 
cases brought under the act of 1903 to prevent unjust discriminations, 
and of all mandamus proceedings authorized by the act of 1903. This 
court actually functioned for less than three years, being abolished in 
1913, as was mentioned above.

        \37\36 Stat. 539.

        Another court of specialized jurisdiction, but created for a 
limited time only, was the Emergency Court of Appeals organized by the 
Emergency Price Control Act of January 30, 1942.\38\ By the terms of the 
statute, this court consisted of three or more judges designated by the 
Chief Justice from the judges of the Untied States district courts and 
circuit courts of appeal. The Court was vested with jurisdiction and 
powers of a district court to hear appeals filed within thirty days 
against denials of protests by the Price Administrator and with 
exclusive jurisdiction to set aside regulations, orders, or price 
schedules, in whole or in part, or to remand the proceeding, but the 
court was tightly constrained in its treatment of regulations. There was 
interplay with the district

[[Page 603]]
courts, which were charged with authority to enforce orders issued under 
the Act, although only the Emergency Court had jurisdiction to determine 
the validity of such orders.\39\

        \38\56 Stat. 23, Sec. Sec. 31-33.
        \39\In Lockerty v. Phillips, 319 U.S. 182 (1943), the 
limitations on the use of injunctions, except the prohibition against 
interlocutory decrees, was unanimously sustained.
        A similar court was created to be utilized in the enforcement of 
the economic controls imposed by President Nixon in 1971. P.L. 92-210, 
85 Stat. 743, 211(b). Although controls ended in 1974, see 12 U.S.C. 
Sec. 1904 note, Congress continued the Temporary Emergency Court of 
Appeals and gave it new jurisdiction. Emergency Petroleum Allocation Act 
of 1973, P.L. 93-159, 87 Stat. 633, 15 U.S.C. Sec. 754, incorporating 
judicial review provisions of the Economic Stabilization Act. The Court 
was abolished, effective March 29, 1993, by P. L. 102-572, 106 Stat. 
        Another similar specialized court was created by Sec. 209 of the 
Regional Rail Reorganization Act, P. L. 93-226, 87 Stat. 999, 45 U.S.C. 
Sec. 719, to review the final system plan under the Act. Regional Rail 
Reorganization Act Cases(Blanchette v. Connecticut Gen. Ins. Corp.), 419 
U.S. 102 (1974).

        Other specialized courts are the Court of Appeals for the 
Federal Circuit, which is in many respects like the geographic circuits. 
Created in 1982,\40\ this court has exclusive jurisdiction to hear 
appeals from the United States Court of Federal Claims, from the Federal 
Merit System Protection Board, the Court of International Trade, the 
Patent Office in patent and trademark cases, and in various contract and 
tort cases. The Court of International Trade, which began life as the 
Board of General Appraisers, became the United States Customs Court in 
1926, and was declared an Article III court in 1956, came to its present 
form and name in 1980.\41\ The Judicial Panel on Multidistrict 
Litigation, staffed by federal judges from other courts, is authorized 
to transfer actions pending in different districts to a single district 
for trial.\42\

        \40\By the Federal Courts Improvement Act of 1982, P. L. 97-164, 
96 Stat. 37, 28 U.S.C. Sec. 1295. Among other things, this Court assumed 
the appellate jurisdiction of the Court of Claims and the Court of 
Customs and Patent Appeals.
        \41\Act of Oct. 10, 1980, 94 Stat. 1727.
        \42\28 U.S.C. Sec. 1407.

        To facilitate the gathering of foreign intelligence information, 
through electronic surveillance, search and seizure, as well as other 
means, Congress authorized in 1978 a special court, composed of seven 
regular federal judges appointed by the Chief Justice, to receive 
applications from the United States and to issue warrants for 
intelligence activities.\43\

        \43\P. L. 95-511,92 Stat. 1788, 50 U.S.C. Sec. 1803.

        Even greater specialization is provided by the special court 
created by the Ethics in Government Act;\44\ the court is charged, upon

[[Page 604]]
the request of the Attorney General, with appointing an independent 
counsel to investigate and prosecute charges of illegality in the 
Executive Branch. The court also has certain supervisory powers over the 
independent counsel.

        \44\Ethics in Government Act, Title VI, P. L. 95-521, 92 Stat. 
1867, as amended, 28 U.S.C. Sec. Sec. 591-599. The court is a ``Special 
Division'' of the United States Court of Appeals for the District of 
Columbia; composed of three regular federal judges, only one of whom may 
be from the D. C. Circuit, who are designated by the Chief Justice. 28 
U.S. C. Sec. 49. The constitutionality of the Special Division was 
upheld in Morrison v. Olson, 487 U.S. 654, 670-685 (1988).
      Legislative Courts: The Canter Case

        Legislative courts, so-called because they are created by 
Congress in pursuance of its general legislative powers, have comprised 
a significant part of the federal judiciary.\45\ The distinction between 
constitutional courts and legislative courts was first made in American 
Ins. Co. v. Canter,\46\ which involved the question of the admiralty 
jurisdiction of the territorial court of Florida, the judges of which 
were limited to a four-year term in office. Said Chief Justice Marshall 
for the Court: ``These courts, then, are not constitutional courts, in 
which the judicial power conferred by the Constitution on the general 
government, can be deposited. They are incapable of receiving it. They 
are legislative courts, created in virtue of the general right of 
sovereignty which exists in the government, or in virtue of that clause 
which enables Congress to make all needful rules and regulations, 
respecting the territory belonging to the United States. The 
jurisdiction with which they are invested, is not a part of that 
judicial power which is defined in the 3rd article of the Constitution, 
but is conferred by Congress, in the execution of those general powers 
which that body possesses over the territories of the United 
States.''\47\ The Court went on to hold that admiralty jurisdiction can 
be exercised in the States only in those courts which are established in 
pursuance of Article III but that the same limitation does not apply to 
the territorial courts, for in legislating for them ``Congress exercises 
the combined powers of the general, and of a state government.''\48\

        \45\In Freytag v. CIR, 501 U.S. 868 (1991), a controverted 
decision held Article I courts to be ``Courts of Law'' for purposes of 
the appointments clause. Art. II, Sec. 2, cl. 2. See id., 888-892 
(majority opinion), and 901-914 (Justice Scalia dissenting).
        \46\1 Pet. (26 U.S.) 511 (1828).
        \47\Id., 546.
        \48\In Glidden Co. v. Zdanok, 370 U.S. 530, 544-545 (1962), 
Justice Harlan asserted that Chief Justice Marshall in the Canter case 
``did not mean to imply that the case heard by the Key West court was 
not one of admiralty jurisdiction otherwise properly justiciable in a 
Federal District Court sitting in one of the States. . . . All the Chief 
Justice meant . . . is that in the territories cases and controversies 
falling within the enumeration of Article III may be heard and decided 
in courts constituted without regard to the limitations of that article. 
. . .''

        Canter postulated a simple proposition: ``Constitutional courts 
exercise the judicial power described in Art. III of the Constitution; 
legislative courts do not and cannot.''\49\ A two-fold difficulty at

[[Page 605]]
tended this proposition, however. Admiralty jurisdiction is included 
within the ``judicial power of the United States'' specifically in 
Article III, requiring an explanation how this territorial court could 
receive and exercise it. Second, if territorial courts could not 
exercise Article III power, how might their decisions be subjected to 
appellate review in the Supreme Court, or indeed in other Article III 
courts, which could exercise only Article III judicial power?\50\ 
Moreover, if in fact some ``judicial power'' may be devolved upon courts 
not having the constitutional security of tenure and salary, what 
prevents Congress from undermining those values intended to be protected 
by Article III's guarantees by giving jurisdiction to nonprotected 
entities that, being subjected to influence, would be bent to the 
popular will?

        \49\Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 
U.S. 50, 106 (1982) (Justice White dissenting).
        \50\That the Supreme Court could review the judgments of 
territorial courts was established in Durousseau v. United States, 6 Cr. 
(10 U.S.) 307 (1810). See also Benner v. Porter, 9 How. (50 U.S.) 235, 
243 (1850); Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434 (1872); 
Balzac v. Porto Rico, 258 U.S. 298, 312-313 (1922).

        Attempts to explain or to rationalize the predicament or to 
provide a principled limiting point have from Canter to the present 
resulted in ``frequently arcane distinctions and confusing precedents'' 
spelled out in cases comprising ``landmarks on a judicial `darkling 
plain' where ignorant armies have clashed by night''.\51\ Nonetheless, 
Article I courts are quite usual entities in our judicial system.\52\

        \51\Northern Pipeline Const. Co. v. Marathon Pipe Line Co., 458 
U.S. 50, 90, 91 (1982) (Justice Rehnquist concurring). The ``darkling 
plain'' language is his attribution to Justice White's historical 
        \52\In addition to the local courts of the District of Columbia, 
the bankruptcy courts, and the U. S. Court of Federal Claims, considered 
infra, these include the United States Tax Court, formerly an 
independent agency in the Treasury Department, but by the Tax Reform Act 
of 1969, Sec. 951, 83 Stat. 730, 26 U.S.C. Sec. 7441, made an Article I 
court of record, the Court of Veterans Appeals, Act of Nov. 18, 1988, 
102 Stat. 4105, 38 U.S.C. Sec. 4051, and the courts of the territories 
of the United States. Magistrate judges are adjuncts of the District 
Courts, see infra, n. 105, and perform a large number of functions, 
usually requiring the consent of the litigants. See Gomez v. United 
States, 490 U.S. 858 (1989); Peretz v. United States, 501 U.S. 923 
(1991). The U. S. Court of Military Appeals, strictly speaking, is not 
part of the judiciary but is a military tribunal, 10 U.S.C. Sec. 867, 
although Congress designated it an Article I tribunal and has recently 
given the Supreme Court certiorari jurisdiction over its decisions.

        Power of Congress Over Legislative Courts.--In creating 
legislative courts, Congress is not limited by the restrictions imposed 
in Article III concerning tenure during good behavior and the 
prohibition against diminution of salaries. Congress may limit tenure to 
a term of years, as it has done in acts creating territorial courts and 
the Tax Court, and it may subject the judges of legislative courts to 
removal by the President,\53\ or it may reduce their

[[Page 606]]
salaries during their terms.\54\ Similarly, it follows that Congress can 
vest in legislative courts nonjudicial functions of a legislative or 
advisory nature and deprive their judgments of finality. Thus, in Gordon 
v. United States,\55\ there was no objection to the power of the 
Secretary of the Treasury and Congress to revise or suspend the early 
judgments of the Court of Claims. Likewise, in United States v. 
Ferreira,\56\ the Court sustained the act conferring powers on the 
Florida territorial court to examine claims rising under the Spanish 
treaty and to report its decisions and the evidence on which they were 
based to the Secretary of the Treasury for subsequent action. ``A power 
of this description,'' it was said, ``may constitutionally be conferred 
on a Secretary as well as on a commissioner. But [it] is not judicial in 
either case, in the sense in which judicial power is granted by the 
Constitution to the courts of the United States.''\57\

        \53\McAllister v. United States, 141 U.S. 174 (1891).
        \54\United States v. Fisher, 109 U.S. 143 (1883); Williams v. 
United States, 289 U.S. 553 (1933).
        \55\2 Wall. (69 U.S.) 561 (1864).
        \56\13 How. (54 U.S.) 40 (1852).
        \57\Id., 48.

        Review of Legislative Courts by Supreme Court.--Chief Justice 
Taney's view, that would have been expressed in Gordon,\58\ that the 
judgments of legislative courts could never be reviewed by the Supreme 
Court, was tacitly rejected in DeGroot v. United States,\59\ in which 
the Court took jurisdiction from a final judgment of the Court of 
Claims. Since the decision in this case, the authority of the Court to 
exercise appellate jurisdiction over legislative courts has turned not 
upon the nature or status of such courts but rather upon the nature of 
the proceeding before the lower court and the finality of its judgment. 
The Supreme Court will neither review the administrative proceedings of 
legislative courts nor entertain appeals from the advisory or 
interlocutory decrees of such a body.\60\ But in proceedings before a 
legislative court which are judicial in nature, admit of a final 
judgment, and involve the per

[[Page 607]]
formance of judicial functions and therefore the exercise of judicial 
power, the Court may be vested with appellate jurisdiction.\61\

        \58\The opinion in Gordon v. United States, 2 Wall. (69 U.S.) 
561 (1864), had originally been prepared by Chief Justice Taney, but 
following his death and reargument of the case the opinion cited was 
issued. The Court later directed the publishing of Taney's original 
opinion at 117 U.S. 697. See also United States v. Jones, 119 U.S. 477, 
478 (1886), in which the Court noted that the official report of Chief 
Justice Chase's Gordon opinion and the Court's own record showed 
differences and quoted the record.
        \59\5 Wall. (72 U.S.) 419 (1867). See also United States v. 
Jones, 119 U.S. 477 (1886).
        \60\E.g., Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 
693 (1927); Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 
(1930); D. C. Court of Appeals v. Feldman, 460 U.S. 462 (1983). See 
Glidden Co. v. Zdanok, 370 U.S. 530, 576, 577-579 (1962).
        \61\Pope v. United States, 323 U.S. 1, 14 (1944); D. C. Court of 
Appeals v. Feldman, 460 U.S. 462 (1983).

        The ``Public Rights'' Distinction.--A major delineation of the 
distinction between Article I courts and Article III courts was 
attempted in Murray's Lessee v. Hoboken Land & Improvement Co.\62\ In 
this case was challenged a summary procedure, without benefit of the 
courts, for the collection by the United States of moneys claimed to be 
due from one of its customs collectors. It was objected that the 
assessment and collection was a judicial act carried out by nonjudicial 
officers and thus invalid under Article III. Accepting that the acts 
complained of were judicial, the Court nonetheless sustained the act by 
distinguishing between any act, ``which, from its nature, is the subject 
of a suit at the common law, or in equity, or admiralty,'' which, in 
other words, is inherently judicial, and other acts which Congress may 
vest in courts or in other agencies. ``[T]here are matters, involving 
public rights, which may be presented in such form that the judicial 
power is capable of acting on them, and which are susceptible of 
judicial determination, but which congress may or may not bring within 
the cognizance of the courts of the United States, as it may deem 
proper.''\63\ The distinction was between those acts which historically 
had been determined by courts and those which historically had been 
resolved by executive or legislative acts and comprehended those matters 
that arose between the government and others. Thus, Article I courts 
``may be created as special tribunals to examine and determine various 
matters, arising between the government and others, which from their 
nature do not require judicial determination and yet are susceptible of 
it. The mode of determining matters of this class is completely within 
congressional control.''\64\

        \62\18 How. (59 U.S.) 272 (1856).
        \63\Id., 284.
        \64\Ex parte Bakelite Corp., 279 U.S. 438, 451 (1929).

        Among the matters susceptible of judicial determination, but not 
requiring it, are claims against the United States,\65\ the disposal of 
public lands and claims arising therefrom,\66\ questions concerning 
membership in the Indian tribes,\67\ and questions arising out of the 
administration of the customs and internal revenue

[[Page 608]]
laws.\68\ Other courts similar to territorial courts, such as consular 
courts and military courts martial, may be justified on like 

        \65\Gordon v. United States, 117 U.S. 697 (1864); McElrath v. 
United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 
553 (1933). On the status of the then-existing Court of Claims, see 
Glidden Co. v. Zdanok, 370 U.S. 530 (1962).
        \66\United States v. Coe, 155 U.S. 76 (1894) (Court of Private 
Land Claims).
        \67\Wallace v. Adams. 204 U.S. 415 (1907); Stephens v. Cherokee 
Nation, 174 U.S. 445 (1899) (Choctaw and Chickasaw Citizenship Court).
        \68\Old Colony Trust Co. v. CIR, 279 U.S. 716 (1929); Ex Parte 
Bakelite Corp., 279 U.S. 438 (1929).
        \69\See In re Ross, 140 U.S. 453 (1891) (consular courts in 
foreign countries). Military courts may, on the other hand, be a 
separate entity of the military having no connection to Article III. 
Dynes v. Hoover, 20 How. (61 U.S.) 65, 79 (1857).

        The ``public rights'' distinction appears today to be a 
description without a significant distinction. Thus, in Crowell v. 
Benson,\70\ the Court approved an administrative scheme for 
determination, subject to judicial review, of maritime employee 
compensation claims, although it acknowledged that the case involved 
``one of private right, that is, of the liability of one individual to 
another under the law as defined.''\71\ This scheme was permissible, the 
Court said, because in cases arising out of congressional statutes, an 
administrative tribunal could make findings of fact and render an 
initial decision of legal and constitutional questions, as long as there 
is adequate review in a constitutional court.\72\ The ``essential 
attributes'' of decision must remain in an Article III court, but so 
long as it does, Congress may utilize administrative decisionmakers in 
those private rights cases that arise in the context of a comprehensive 
federal statutory scheme.\73\ That the ``public rights'' distinction 
marked a dividing line between those matters that could be assigned to 
legislative courts and to administrative agencies and those matters ``of 
private right'' that could not be was reasserted in Marathon, but there 
was much the Court plurality did not explain.\74\

        \70\285 U.S. 22 (1932).
        \71\Id. 51. On the constitutional problems of assignment to an 
administrative agency, see Atlas Roofing Co. v. OSHRC, 430 U.S. 442 
(1977); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48 (1937).
        \72\Id., 51-65.
        \73\Id., 50, 51, 58-63. Thus, Article III concerns were 
satisfied by a review of the agency fact finding upon the administrative 
record. Id., 63-65. The plurality opinion denied the validity of this 
approach in Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 
U.S. 50, 86 n. 39 (1982), although Justice white in dissent accepted it. 
Id., 115. The plurality, rather, rationalized Crowell and subsequent 
cases on an analysis seeking to ascertain whether agencies or Article I 
tribunals were ``adjuncts'' of Article III courts, that is, whether 
Article III courts were sufficiently in charge to protect constitutional 
values. Id., 76-87.
        \74\Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 
U.S. 50, 67-70 (1982) (plurality opinion). Thus, Justice Brennan states 
that at a minimum a matter of public right must arise ```between the 
government and others''' but that the presence of the United States as a 
proper party to the proceeding is a necessary but not sufficient means 
to distinguish ``private rights.'' Id., 69 & n. 23. Crowell v. Benson, 
however, remained an embarrassing presence.

        The Court continued to waver with respect to the importance to 
decision-making of the public rights/private rights distinction. In

[[Page 609]]
two cases following Marathon, it rejected the distinction as ``a bright 
line test,'' and instead focused on ``substance''--i.e., on the extent 
to which the particular grant of jurisdiction to an Article I court 
threatened judicial integrity and separation of powers principles.\75\ 
Nonetheless, the Court indicated that the distinction may be an 
appropriate starting point for analysis. Thus, the fact that private 
rights traditionally at the core of Article III jurisdiction are at 
stake leads the Court to ``searching'' inquiry as to whether Congress is 
encroaching inordinately on judicial functions, while the concern is not 
so great where ``public'' rights are involved.\76\

        \75\Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568 
(1985); CFTC v. Schor, 478 U.S. 833 (1986). The cases also abandoned the 
principle that the Federal Government must be a party for the case to 
fall into the ``public rights'' category. Thomas, supra, 586; and see 
id., 596-599 (Justice Brennan concurring).
        \76\``In essence, the public rights doctrine reflects simply a 
pragmatic understanding that when Congress selects a quasi-judicial 
method of resolving matters that `could be conclusively determined by 
the Executive and Legislative Branches,' the danger of encroaching on 
the judicial powers is reduced.'' Thomas v. Union Carbide Agric. 
Products Co., 473 U.S. 568, 589 (1985) (quoting Northern Pipeline, 
supra, 458 U.S., 68 (plurality opinion)).

        However, in a subsequent case, the distinction was pronounced 
determinative not only of the issue whether a matter could be referred 
to a non-Article III tribunal but whether Congress could dispense with 
civil jury trials.\77\ In so doing, however, the Court vitiated much of 
the core content of ``private'' rights as a concept and left resolution 
of the central issue to a balancing test. That is, ``public'' rights 
are, strictly speaking, those in which the cause of action inheres in or 
lies against the Federal Government in its sovereign capacity, the 
understanding since Murray's Lessee. However, to accommodate Crowell v. 
Benson, Atlas Roofing, and similar cases, seemingly private causes of 
action between private parties will also be deemed ``public'' rights, 
when Congress, acting for a valid legislative purpose pursuant to its 
Article I powers, fashions a cause of action that is analogous to a 
common-law claim and so closely integrates it into a public regulatory 
scheme that it becomes a matter appropriate for agency resolution with 
limited involvement by the Article III judiciary.\78\ Nonetheless, 
despite its fixing by Congress as a ``core proceeding'' suitable for an 
Article I bankruptcy court adjudication, the Court held the particular 
cause of ac

[[Page 610]]
tion at issue was a private issue as to which the parties were entitled 
to a civil jury trial (and necessarily which Congress could not commit 
to an Article I tribunal, save perhaps through the consent of the 

        \77\Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 51-55 (1989). 
A seventh Amendment jury-trial case, the decision is critical to the 
Article III issue as well, because, as the Court makes clear what was 
implicit before, whether Congress can submit a legal issue to an Article 
I tribunal and whether it can dispense with a civil jury on that legal 
issue must be answered by the same analysis. Id., 52-53.
        \78\Id., 52-54. The Court reiterated that the Government need 
not be a party as a prerequisite to a matter being of ``public right.'' 
Id., 54. Concurring, Justice Scalia argued that public rights 
historically were and should remain only those matters to which the 
Federal Government is a party. Id, 65.
        \79\Id., 55-64. The Court reserved the question whether, a jury 
trial being required, a non-Article III bankruptcy judge could oversee 
such a jury trial. Id., 64. That question remains unresolved, both as a 
matter, first, of whether there is statutory authorization for 
bankruptcy judges to conduct jury trials, and, second, if there is, 
whether they may constitutionally do so. E.g., In re Ben Cooper, Inc., 
896 F.2d 1394 (2d Cir. 1990), cert. granted, 497 U.S. 1023, vacated and 
remanded for consideration of a jurisdictional issue, 498 U.S. 964 
(1990), reinstated, 924 F.2d 36 (2d Cir.), cert. den., 500 U.S. 928 
(1991); In re Grabill Corp., 967 F.2d 1152 (7th Cir. 1991), pet. for 
reh. en banc den., 976 F.2d 1126 (7th Cir. 1992).

        Constitutional Status of the Court of Claims and the Courts of 
Customs and Patent Appeals.--Though the Supreme Court for a long while 
accepted the Court of Claims as an Article III court,\80\ it later ruled 
that court to be an Article I court and its judges without 
constitutional protection of tenure and salary.\81\ Then, in the 1950s, 
Congress statutorily declared that the Court of Claims, the Customs 
Court, and the Court of Customs and Patent Appeals were Article III 
courts,\82\ a questionable act under the standards the Court had 
utilized to determine whether courts were legislative or 
constitutional.\83\ But in Glidden Co. v. Zdanok,\84\ five of seven 
participating Justices united to find that indeed the Court of Claims 
and the Court of Customs and Patent Appeals, at least, were 
constitutional courts and their judges eligible to participate in 
judicial business in other constitutional courts. Three Justices would 
have overruled Bakelite and Williams and would have held that the courts 
in question were constitutional courts.\85\ Whether a court is an 
Article III tribunal depends largely upon whether legislation 
establishing it is in harmony with the limitations of that Article, 
specifically, ``whether . . . its business is the federal business there 
specified and its judges and judgments are allowed the independence 
there expressly or impliedly made requisite.'' When

[[Page 611]]
a court is created ``to carry into effect [federal] powers . . . over 
subject matter . . . and not over localities,'' a presumption arises 
that the status of such a tribunal is constitutional rather than 
legislative.\86\ The other four Justices expressly declared that 
Bakelite and Williams should not be overruled,\87\ but two of them 
thought the two courts had attained constitutional status by virtue of 
the clear manifestation of congressional intent expressed in the 
legislation.\88\ Two Justices maintained that both courts remained 
legislative tribunals.\89\ While the result is clear, no standard for 
pronouncing a court legislative rather than constitutional has obtained 
the adherence of a majority of the Court.\90\

        \80\De Groot v. United States, 5 Wall. (72 U.S.) 419 (1866); 
United States v. Union Pacific Co., 98 U.S. 569, 603 (1878); Miles v. 
Graham, 268 U.S. 501 (1925).
        \81\Williams v. United States, 289 U.S. 553 (1933); cf. Ex Parte 
Bakelite Corp., 279 U.S. 438, 450-455 (1929).
        \82\67 Stat. 226, Sec. 1, 28 U.S.C. Sec. 171 (Court of Claims); 
70 Stat. 532. Sec. 1, 28 U.S.C. Sec. 251 (Customs Court); 72 Stat. 848, 
Sec. 1, 28 U.S.C. Sec. 211 (Court of Customs and Patent Appeals).
        \83\In Ex parte Bakelite Corp., 279 U.S. 438. 459 (1929), 
Justice Van Devanter refused to give any weight to the fact that 
Congress had bestowed life tenure on the judges of the Court of Customs 
Appeals because that line of thought ``mistakenly assumes that whether a 
court is of one class or the other depends on the intention of Congress, 
whereas the true test lies in the power under which the court was 
created and in the jurisdiction conferred.''
        \84\370 U.S. 530 (1962).
        \85\Glidden Co. v. Zdanok, 370 U.S. 530, 531 (1962) (Justices 
Harlan, Brennan, and Stewart).
        \86\Id., 548, 552.
        \87\Id., 585 (Justice Clark and Chief Justice Warren 
concurring); 589 (Justices Douglas and Black dissenting).
        \88\Id., 585 (Justice Clark and Chief Justice Warren).
        \89\Id., 589 (Justices Douglas and Black). The concurrence 
thought that the rationale of Bakelite and Williams was based on a 
significant advisory and reference business of the two courts, which the 
two Justices now thought insignificant, but what there was of it they 
thought nonjudicial and the courts should not entertain it. Justice 
Harlan left that question open. Id., 583.
        \90\Aside from doctrinal matters, in 1982, Congress created the 
United States Court of Appeals for the Federal Circuit, giving it, inter 
alia, the appellate jurisdiction of the Court of Claims and the Court of 
Customs and Patent Appeals. 96 Stat. 25, title 1, 28 U.S.C. Sec. 41. At 
the same time Congress, created the United States Claims Court, now the 
United States Court of Federal Claims, as an Article I tribunal, with 
the trial jurisdiction of the old Court of Claims. 96 Stat. 26, as 
amended, Sec. 902(a)(1), 106 Stat. 4516, 28 U.S.C. Sec. Sec. 171-180.

        Status of Courts of the District of Columbia.--Through a long 
course of decisions, the courts of the District of Columbia were 
regarded as legislative courts upon which Congress could impose 
nonjudicial functions. In Butterworth v. United States ex rel. Hoe,\91\ 
the Court sustained an act of Congress which conferred revisory powers 
upon the Supreme Court of the District in patent appeals and made its 
decisions binding only upon the Commissioner of Patents. Similarly, the 
Court later sustained the authority of Congress to vest revisory powers 
in the same court over rates fixed by a public utilities commission.\92\ 
Not long after this, the same rule was applied to the revisory powers of 
the District Supreme Court over orders of the Federal Radio 
Commission.\93\ These rulings were based on the assumption, express or 
implied, that the courts of the District were legislative courts, 
created by Congress in pursuance of its plenary power to govern the 
District of Columbia. In dictum in Ex parte Bakelite Corp.,\94\ while 
reviewing the history and ana

[[Page 612]]
lyzing the nature of the legislative courts, the Court stated that the 
courts of the District were legislative courts.

        \91\112 U.S. 50 (1884).
        \92\Keller v. Potomac Elec. Co., 261 U.S. 428 (1923).
        \93\Federal Radio Comm. v. General Elec. Co., 281 U.S. 464 
        \94\279 U.S. 438, 450-455 (1929).

        In 1933, nevertheless, the Court, abandoning all previous dicta 
on the subject, found the courts of the District of Columbia to be 
constitutional courts exercising judicial power of the United 
States,\95\ with the result that it assumed the task of reconciling the 
performance of nonjudicial functions by such courts with the rule that 
constitutional courts can exercise only the judicial power of the United 
States. This task was accomplished by the argument that in establishing 
courts for the District, Congress is performing dual functions in 
pursuance of two distinct powers, the power to constitute tribunals 
inferior to the Supreme Court, and its plenary and exclusive power to 
legislate for the District of Columbia. However, Article III, Sec. 1, 
limits this latter power with respect to tenure and compensation, but 
not with regard to vesting legislative and administrative powers in such 
courts. Subject to the guarantees of personal liberty in the 
Constitution, ``Congress has as much power to vest courts of the 
District with a variety of jurisdiction and powers as a State 
legislature has in conferring jurisdiction on its courts.''\96\

        \95\O'Donoghue v. United States, 289 U.S. 516 (1933).
        \96\Id., 535-546. Chief Justice Hughes in dissent argued that 
Congress' power over the District was complete in itself and the power 
to create courts there did not derive at all from Article III. Id., 551. 
See the discussion of this point of O'Donoghue in National Mutual Ins. 
Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Cf. Hobson v. 
Hansen, 265 F. Supp. 902 (D.C.D.C. 1967) (three-judge court).

        In 1970, Congress formally recognized two sets of courts in the 
District, federal courts, district courts and a Court of Appeals for the 
District of Columbia, created pursuant to Article III, and courts 
equivalent to state and territorial courts, created pursuant to Article 
I.\97\ Congress' action was sustained in Palmore v. United States.\98\ 
When legislating for the District, the Court held, Congress has the 
power of a local legislature and may, pursuant to Article I, Sec. 8, cl. 
17, vest jurisdiction to hear matters of local law and local concerns in 
courts not having Article III characteristics. The defendant's claim 
that he was denied his constitutional right to be tried before an 
Article III judge was denied on the basis that it was not absolutely 
necessary that every proceeding in which a charge, claim, or defense 
based on an act of Congress or a law made under its authority need be 
conducted in an Article III court. State courts, after all, could hear 
cases involving federal law as could territorial and military courts. 
``[T]he requirements of Article III, which are applicable where laws of 
national applicability and affairs of na

[[Page 613]]
tional concern are at stake, must in proper circumstances give way to 
accommodate plenary grants of power to Congress to legislate with 
respect to specialized areas having particularized needs and warranting 
distinctive treatment.''\99\

        \97\P.L. 91-358, 84 Stat. 475, D.C. Code Sec. 11-101.
        \98\411 U.S. 389 (1973)
        \99\Id., 407-408. See also Pernell v. Southall Realty Co., 416 
U.S. 363, 365-365 (1974); Swain v. Pressley, 430 U.S. 372 (1977); Key v. 
Doyle, 434 U.S. 59 (1978). Under Swain, provision for hearing of motions 
for postjudgment relief by convicted persons in the District, the 
present equivalent of habeas for federal convicts, is placed in Article 
I courts. That there are limits to Congress' discretion is asserted in 
dictum in Territory of Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977).

        Bankruptcy Courts.--After extended and lengthy debate, Congress 
in 1978 revised the bankruptcy act and created as an ``adjunct'' of the 
district courts a bankruptcy court composed of judges, vested with 
practically all the judicial power of the United States, serving for 14 
year terms, subject to removal for cause by the judicial councils of the 
circuits, and with salaries subject to statutory change.\100\ The 
bankruptcy courts were given jurisdiction over all civil proceedings 
arising under the bankruptcy code or arising in or related to bankruptcy 
cases, with review in Article III courts under a clearly erroneous 
standard. In a case in which a claim was made against a company for 
breaches of contract and warranty, purely state law claims, the Court 
held unconstitutional the conferral upon judges not having the Article 
III security of tenure and compensation of jurisdiction to hear state 
law claims of traditional common law actions of the kind existing at the 
time of the drafting of the Constitution.\101\ While the holding was 
extremely narrow, a plurality of the Court sought to rationalize and 
limit the Court's jurisprudence of Article I courts. According to the 
plurality, as a fundamental principle of separation of powers, the 
judicial power of the United States must be exercised by courts having 
the attributes prescribed in Article III. Congress may not evade the 
constitutional order by allocating this judicial power to courts whose 
judges lack security of tenure and compensation. Only in three narrowly 
circumscribed instances may judicial power be distributed outside the 
Article III framework: in territories and the District of Columbia, that 
is, geographical areas in which no State operated as sovereign and 
Congress exercised the general powers of government; courts martial, 
that is, the establishment of courts under a constitutional grant of 
power historically understood as giving the

[[Page 614]]
political branches extraordinary control over the precise subject 
matter; and the adjudication of ``public rights,'' that is, the 
litigation of certain matters that historically were reserved to the 
political branches of government and that were between the government 
and the individual.\102\ In bankruptcy legislation and litigation not 
involving any of these exceptions, the plurality would have held, the 
judicial power to process bankruptcy cases could not be assigned to the 
tribunals created by the act.\103\

        \100\Bankruptcy Act of 1978, P.L. 95-598, 92 Stat. 2549, 
codified in titles 11, 28. The bankruptcy courts were made ``adjuncts'' 
of the district courts by Sec. 201(a), 28 U.S.C. Sec. 151(a). For 
citation to the debate with respect to Article III versus Article I 
status for these courts, see Northern Pipeline Const. Co. v. Marathon 
Pipe Line Co., 458 U.S. 50, 61 n. 12 (1982) (plurality opinion).
        \101\The statement of the holding is that of the two concurring 
Justices, id., 89 (Justices Rehnquist and O'Connor), with which the 
plurality agreed ``at the least,'' while desiring to go further. Id., 87 
n. 40.
        \102\Id., 63-76 (Justice Brennan, joined by Justices Marshall, 
Blackmun, and Stevens).
        \103\The plurality also rejected an alternative basis, a 
contention that as ``adjuncts'' of the district courts, the bankruptcy 
courts were like United States magistrates or like those agencies 
approved in Crowell v. Benson, 285 U.S. 22 (1932), to which could be 
assigned factfinding functions subject to review in Article III courts, 
the fount of the administrative agency system. Northern Pipeline Const. 
Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76-86 (1982). According to 
the plurality, the act vested too much judicial power in the bankruptcy 
courts to treat them like agencies, and it limited the review of Article 
III courts too much.

        The dissent argued that, while on its face Article III provided 
for exclusivity in assigning judicial power to Article III entities, the 
history since Canter belied that simplicity. Rather, the precedents 
clearly indicated that there is no difference in principle between the 
work that Congress may assign to an Article I court and that which must 
be given to an Article III court. Despite this, the dissent contended 
that Congress did not possess plenary discretion in choosing between the 
two systems; rather, in evaluating whether jurisdiction was properly 
reposed in an Article I court, the Supreme Court must balance the values 
of Article III against both the strength of the interest Congress sought 
to further by its Article I investiture and the extent to which Article 
III values were undermined by the congressional action. This balancing 
would afford the Court, the dissent believed, the power to prevent 
Congress, were it moved to do so, from transferring jurisdiction in 
order to emasculate the constitutional courts of the United States.\104\

        \104\Id., 92, 105-113, 113-116 (Justice White, joined by Chief 
Justice Burger and Justice Powell).

        Again, no majority could be marshaled behind a principled 
discussion of the reasons for and the limitation upon the creation of 
legislative courts, not that a majority opinion, or even a unanimous 
one, would necessarily presage the settling of the law.\105\ But the 
breadth of the various opinions left unclear not only the degree of 
discretion left in Congress to restructure the bankruptcy courts, but 
placed in issue the constitutionality of other legislative efforts

[[Page 615]]
to establish adjudicative systems outside a scheme involving the 
creation of life-tenured judges.\106\

        \105\Ex parte Bakelite Corp., 279 U.S. 438 (1929), was, after 
all, a unanimous opinion and did not long survive.
        \106\In particular, the Federal Magistrates Act of 1968, under 
which judges may refer certain pretrial motions and the trial of certain 
matters to persons appointed to a specific term, was threatened. P.L. 
90-578, 82 Stat. 1108, as amended, 28 U.S.C. Sec. Sec. 631-639. See 
United States v. Raddatz, 447 U.S. 667 (1980); Mathews v. Weber, 423 
U.S. 261 (1976).

        Congress responded to Marathon by enactment of the Bankruptcy 
Amendments and Federal Judgeship Act of 1984.\107\ Bankruptcy courts 
were maintained as Article I entities, and overall their powers as 
courts were not notably diminished. However, Congress did establish a 
division between ``core proceedings,'' which bankruptcy courts could 
hear and determine, subject to lenient review, and other proceedings, 
which, though the bankruptcy courts could initially hear and decide, any 
party could have de novo review in the district court, unless the 
parties consented to bankruptcy-court jurisdiction in the same manner as 
core proceedings. A safety valve was included, permitting the district 
court to withdraw any proceeding from the bankruptcy court on cause 
shown.\108\ Notice that in Granfinanciera, S.A. v. Nordberg,\109\ the 
Court found that a cause of action founded on state law, though 
denominated a core proceeding, was a private right.

        \107\P. L. 98-353, 98 Stat. 333, judiciary provisions at 28 
U.S.C. Sec. 151 et seq.
        \108\See 28 U.S.C. Sec. 157.
        \109\492 U.S. 33 (1989).

        Agency Adjudication.--The Court in two decisions following 
Marathon involving legislative courts clearly suggested that the 
majority was now closer to the balancing approach of the Marathon 
dissenters than to the position of the Marathon plurality that Congress 
may confer judicial power on legislative courts in only very limited 
circumstances. Subsequently, however, Granfinanciera, S.A. v. 
Nordberg,\110\ a reversion to the fundamentality of Marathon, with an 
opinion by the same author, Justice Brennan, cast some doubt on this 
proposition. In Thomas v. Union Carbide Agric. Products Co.,\111\ the 
Court upheld a provision of the pesticide law requiring binding 
arbitration, with limited judicial review, of compensation due one 
registrant by another for mandatory sharing of registration information, 
the right arising from federal statutory law. And in CFTC v. Schor,\112\ 
the Court upheld conferral on the agency of authority, in a reparations 
adjudication under the Act, also to adjudicate ``counterclaims'' arising 
out of the same transaction, including those arising under state common 
law. Neither the fact that the pesticide case involved a dispute between 
two pri

[[Page 616]]
vate parties nor the fact that the CFTC was empowered to decide claims 
traditionally adjudicated under state law proved decisive to the Court's 

        \111\473 U.S. 568 (1985).
        \112\478 U.S. 833 (1986).

        In rejecting a ``formalistic'' approach and analyzing the 
``substance'' of the provision at issue in Union Carbide, Justice 
O'Connor`s opinion for the Court pointed to several considerations.\113\ 
The right to compensation was not a purely private right, but ``bears 
many of the characteristics of a `public' right,'' since Congress was 
``authoriz[ing] an agency administering a complex regulatory scheme to 
allocate costs and benefits among voluntary participants in the 
program.''\114\ Also important was not ``unduly constrict[ing] Congress 
in its ability to take needed and innovative action pursuant to its 
Article I powers;''\115\ arbitration was ``a pragmatic solution to [a] 
difficult problem.'' The limited nature of judicial review was seen as a 
plus in the sense that ``no unwilling defendant is subjected to judicial 
enforcement power;'' on the other hand, availability of limited judicial 
review of the arbitrator's findings and determination for fraud, 
misconduct, or misrepresentation, and for due process violations, 
preserved the ```appropriate exercise of the judicial function.'''\116\ 
Thus, the Court concluded, Congress in exercise of Article I powers 
``may create a seemingly `private' right that is so closely integrated 
into a public regulatory scheme as to be a matter appropriate for agency 
resolution with limited involvement by the Article III judiciary.''\117\

        \113\Contrast the Court's approach to Article III separation of 
powers issues with the more rigid approach enunciated in INS v. Chadha 
and Bowsher v. Synar, involving congressional incursions on executive 
        \114\Id., 473 U.S., 589.
        \115\CFTC v. Schor, supra, 478 U.S., 851 (summarizing the Thomas 
        \116\Thomas, supra, 473 U.S., 591, 592(quoting Crowell v. 
Benson, 285 U.S. 22, 54 (1932)).
        \117\473 U.S., 594.

        In Schor, the Court described Art. III, Sec. 1, as serving a 
dual purpose: to protect the role of an independent judiciary and to 
safeguard the right of litigants to have claims decided by judges free 
from potential domination by the other branches of government. A 
litigant's Article III right is not absolute, the Court determined, but 
may be waived. This the litigant had done by submitting to the 
administrative law judge's jurisdiction rather than independently 
seeking relief as he was entitled to and then objecting only after 
adverse rulings on the merits. But the institutional integrity claim, 
not being personal, could not be waived and the Court reached the 
merits. The threat to institutional independence was ``weighed'' by 
reference to ``a number of factors.'' The conferral on the CFTC of 
pendent jurisdiction over common law counterclaims was seen as

[[Page 617]]
more narrowly confined than was the grant to bankruptcy courts at issue 
in Marathon, and as more closely resembling the ``model'' approved in 
Crowell v. Benson. The CFTC's jurisdiction, unlike that of bankruptcy 
courts, was said to be confined to ``a particularized area of the law;'' 
the agency's orders were enforceable only by order of a district 
court,\118\ and reviewable under a less deferential standard, with legal 
rulings being subject to de novo review; and the agency was not 
empowered, as had been the bankruptcy courts, to exercise ``all ordinary 
powers of district courts.''

        \118\Cf. Union Carbide, supra, 473 U.S., 591 (fact that ``FIFRA 
arbitration scheme incorporates its own system of internal sanctions and 
relies only tangentially, if at all, on the Judicial Branch for 
enforcement'' cited as lessening danger of encroachment on ``Article III 
judicial powers'').

        Granfinanciera followed analysis different from that in Schor, 
although it preserved Union Carbide through its concept of ``public 
rights.'' State law and other legal claims founded on private rights 
could not be remitted to non-Article III tribunals for adjudication 
unless Congress in creating an integrated public regulatory scheme has 
so taken up the right as to transform it. It may not simply relabel a 
private right and place it into the regulatory scheme. The Court is hazy 
with respect to whether the right must be itself a creature of federal 
statutory action. The general descriptive language suggests that, but in 
its determination whether the right at issue in the case, the recovery 
of preferential or fraudulent transfers in the context of a bankruptcy 
proceeding, the Court seemingly goes beyond this point. Though a 
statutory interest, the actions were identical to state-law contract 
claims brought by a bankrupt corporation to augment the estate.\119\ 
Schor was distinguished solely on the waiver part of the decision, 
relating to the individual interest, without considering the part of the 
opinion deciding the institutional interest on the merits and utilizing 
a balancing test.\120\

        \119\Granfinanciera, supra, 492 U.S., 51-55, 55-60.
        \120\Id., 59 n. 14.

        Thus, while the Court has made some progress in reconciling its 
growing line of disparate cases, doctrinal harmony has not yet been 

      Noncourt Entities in the Judicial Branch

        Passing on the constitutionality of the establishment of the 
Sentencing Commission as an ``independent'' body in the judicial branch, 
the Court acknowledged that the Commission is not a court and does not 
exercise judicial power. Rather, its function is to promulgate binding 
sentencing guidelines for federal courts. It acts, therefore, 
legislatively, and its membership of seven is composed of three judges 
and three nonjudges. But the standard of constitu

[[Page 618]]
tionality, the Court held, is whether the entity exercises powers that 
are more appropriately performed by another branch or that undermine the 
integrity of the judiciary. Because the imposition of sentences is a 
function traditionally exercised within congressionally prescribed 
limits by federal judges, the Court found the functions of the 
Commission could be located in the judicial branch. Nor did performance 
of its functions contribute to a weakening of the judiciary, or an 
aggrandizement of power either, in any meaningful way, the Court 

        \121\Mistretta v. United States, 488 U.S. 361, 384-97 (1989). 
Clearly, some of the powers vested in the Special Division of the United 
States Court of Appeals for the District of Columbia Circuit under the 
Ethics in Government Act in respect to the independent counsel were 
administrative, but because the major nonjudicial power, the appointment 
of the independent counsel, was specifically authorized in the 
appointments clause, the additional powers were miscellaneous and could 
be lodged there by Congress. Implicit in the Court's analysis was the 
principle that a line exists that Congress could not cross over. 
Morrison v. Olson, 487 U.S. 654, 677-685 (1988).

                             JUDICIAL POWER

      Characteristics and Attributes of Judicial Power

        Judicial power is the power ``of a court to decide and pronounce 
a judgment and carry it into effect between persons and parties who 
bring a case before it for decision.''\122\ It is ``the right to 
determine actual controversies arising between diverse litigants, duly 
instituted in courts of proper jurisdiction.''\123\ Although the terms 
``judicial power'' and ``jurisdiction'' are frequently used 
interchangeably and jurisdiction is defined as the power to hear and 
determine the subject matter in controversy between parties to a 
suit\124\ or as the ``power to entertain the suit, consider the merits 
and render a binding decision thereon,''\125\ the cases and commentary 
support, indeed require, a distinction between the two concepts. 
Jurisdiction is the authority of a court to exercise judicial power in a 
specific case and is, of course, a prerequisite to the exercise of 
judicial power, which is the totality of powers a court exercises when 
it assumes jurisdiction and hears and decides a case.\126\ Included 
within the general power to decide cases are the ancillary powers of 
courts to punish for contempts of their authority,\127\ to issue writs

[[Page 619]]
in aid of jurisdiction when authorized by statute,\128\ to make rules 
governing their process in the absence of statutory authorizations or 
prohibitions,\129\ to order their own process so as to prevent abuse, 
oppression, and injustice and to protect their own jurisdiction and 
officers in the protection of property in custody of law,\130\ to 
appoint masters in chancery, referees, auditors, and other 
investigators,\131\ and to admit and disbar attorneys.\132\

        \122\Justice Samuel Miller, On the Constitution (New York: 
1891), 314.
        \123\Muskrat v. United States, 219 U.S. 346, 361 (1911).
        \124\United States v. Arrendondo, 6 Pet. (31 U.S.) 691 (1832).
        \125\General Investment Co. v. New York Central R. Co., 271 U.S. 
228, 230 (1926).
        \126\William v. United States, 289 U.S. 553, 566 (1933) ; Yakus 
v. United States, 321 U.S. 414, 467-468 (1944) (Justice Rutledge 
        \127\Michaelson v. United States, 266 U.S. 42 (1924).
        \128\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); Ex parte 
Bollman, 4 Cr. (8 U.S.) 75 (1807).
        \129\Wayman v. Southard, 10 Wheat. (23 U.S.) 1 (1825).
        \130\Gumble v. Pitkin, 124 U.S. 131 (1888).
        \131\Ex parte Peterson, 253 U.S. 300 (1920).
        \132\Ex parte Garland, 4 Wall. (71 U.S. ) 333, 378 (1867).

        ``Shall Be Vested.''--The distinction between judicial power and 
jurisdiction is especially pertinent to the meaning of the words ``shall 
be vested'' in Sec. 1. Whereas all the judicial power of the United 
States is vested in the Supreme Court and the inferior federal courts 
created by Congress, neither has ever been vested with all the 
jurisdiction which could be granted and, Justice Story to the 
contrary,\133\ the Constitution has not been read to mandate Congress to 
confer the entire jurisdiction it might.\134\ Thus, except for the 
original jurisdiction of the Supreme Court, which flows directly from 
the Constitution, two prerequisites to jurisdiction must be present: 
first, the Constitution must have given the courts the capacity to 
receive it,\135\ and, second, an act of Congress must have conferred 
it.\136\ The fact that federal courts are of limited jurisdic

[[Page 620]]
tion means that litigants in them must affirmatively establish that 
jurisdiction exists and may not confer nonexistent jurisdiction by 
consent or conduct.\137\

        \133\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 328-331 
(1816). See also 3 J. Story, Commentaries on the Constitution of the 
United States (Boston: 1833), 1584-1590.
        \134\See, e.g., Turner v. Bank of North America, 4 Dall. (4 
U.S.) 8, 10 (1799) (Justice Chase). A recent, sophisticated attempt to 
resurrect the core of Justice Story's argument is Amar, A Neo-Federalist 
View of Article III: Separating the Two Tiers of Federal Jurisdiction, 
65 B. U. L. Rev. 205 (1985); and see Symposium: Article III and the 
Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990) (with articles by 
Amar, Meltzer, and Redish). Briefly, the matter is discussed more fully 
infra, Professor Amar argues, in part, from the text of Article III, 
Sec. 2, cl. 1, that the use of the word ``all'' in each of federal 
question, admiralty, and public ambassador subclauses means that 
Congress must confer the entire judicial power to cases involving those 
issues, whereas it has more discretion in the other six categories.
        \135\Which was, of course, the point of Marbury v. Madison, 1 
Cr. (5 U.S.) 137 (1803), once the power of the Court to hold legislation 
unconstitutional was established.
        \136\The Mayor v. Cooper, 6 Wall. (73 U.S.) 247, 252 (1868); 
Cary v. Curtis, 3 How. (44 U.S.) 236 (1845); Sheldon v. Sill, 8 How. (49 
U.S.) 441 (1850); United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 
33 (1812); Kline v. Burke Construction Co., 260 U.S. 226 (1922). It 
should be noted, however, that some judges have expressed the opinion 
that Congress' authority is limited to some degree by the Constitution, 
such as by the due process clause, so that a limitation on jurisdiction 
which denied a litigant access to any remedy might be unconstitutional. 
Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 965-966 (D.C.Cir. 1949), 
revd. on other grounds sub nom, Johnson v. Eisentrager, 339 U.S. 763 
(1950); Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir.), 
cert. den., 335 U.S. 887 (1948); Petersen v. Clark, 285 F. Supp. 700. 
703 n. 5 (D.N.D. Calif. 1968); Murray v. Vaughn, 300 F. Supp. 688. 694-
695 (D.R.I. 1969). The Supreme Court has had no occasion to consider the 
        \137\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8 (1799); 
Bingham v. Cabot, 3 Dall. (3 U.S.) 382 (1798); Jackson v. Ashton, 8 Pet. 
(33 U.S.) 148 (1834); Mitchell v. Maurer, 293 U.S. 237 (1934).
      Finality of Judgment as an Attribute of Judicial Power

        Since 1792, the federal courts have emphasized finality of 
judgment as an essential attribute of judicial power. In that year, 
Congress authorized Revolutionary War veterans to file pension claims in 
circuit courts of the United States, directed the judges to certify to 
the Secretary of War the degree of a claimant's disability and their 
opinion with regard to the proper percentage of monthly pay to be 
awarded, and empowered the Secretary to withhold judicially certified 
claimants from the pension list if he suspected ``imposition or 
mistake.''\138\ The Justices then on circuit almost immediately 
forwarded objections to the President, contending that the statute was 
unconstitutional because the judicial power was constitutionally 
committed to a separate department and the duties imposed by the act 
were not judicial and because the subjection of a court's opinions to 
revision or control by an officer of the executive or the legislature 
was not authorized by the Constitution.\139\ Attorney General Randolph, 
upon the refusal of the circuit courts to act under the new statute, 
filed a motion for mandamus in the Supreme Court to direct the Circuit 
Court in Pennsylvania to proceed on a petition filed by one Hayburn 
seeking a pension. Although the Court heard argument, it put off 
decision until the next term, presumably because Congress was already 
acting to delete the objectionable features of the act, and upon 
enactment of a new law the Court dismissed the action.\140\

        \138\Act of March 23, 1792, 1 Stat. 243.
        \139\1 American State Papers: Miscellaneous Documents, 
Legislative and Executive, of the Congress of the United States 
(Washington : 1832), 49, 51, 52. President Washington transmitted the 
remonstrances to Congress. 1 J. Richardson, (comp.), Messages and Papers 
of the Presidents (Washington : 1897), 123, 133. The objections are also 
appended to the order of the Court in Hayburn's Case, 2 Dall. (2 U.S.) 
409, 410 (1792). Note that some of the Justices declared their 
willingness to perform under the act as commissioners rather than as 
judges. Cf. United States v. Ferreira, 13 How. (54 U.S.) 40, 52-53 
(1852). The assumption by judges that they could act in some positions 
as individuals while remaining judges, an assumption many times acted 
upon, was approved in Mistretta v. United States, 488 U.S. 361, 397-408 
        \140\Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792). The new 
pension law was the Act of February 28, 1793, 1 Stat. 324. The reason 
for the Court's inaction may, on the other hand, have been doubt about 
the proper role of the Attorney General in the matter, an issue raised 
in the opinion. See Marcus & Teir, Hayburn's Case: A Misinterpretation 
of Precedent, 1988 Wis. L. Rev. 4; Bloch, The Early Role of the Attorney 
General in Our Constitutional Scheme: In the Beginning There was 
Pragmatism, 1989 Duke L. J. 561, 590-618.


[[Page 621]]

        Hayburn's Case has been since followed, so that the Court has 
rejected all efforts to give it and the lower federal courts 
jurisdiction over cases in which judgment would have been subject to 
executive or legislative revision.\141\ Thus, in a 1948 case, the Court 
held that an order of the Civil Aeronautics Board denying to one citizen 
air carrier and granting to another a certificate of convenience and 
necessity for an overseas and foreign air route was not reviewable. Such 
an order was subject to review and confirmance or revision by the 
President, and the Court decided it could not review the discretion 
exercised by him in that situation; the lower court had thought the 
matter could be handled by permitting presidential review of the order 
after judicial review, but this the Court rejected. ``[I]f the President 
may completely disregard the judgment of the court, it would be only 
because it is one the courts were not authorized to render. Judgments 
within the powers vested in courts by the Judiciary Article of the 
Constitution may not lawfully be revised, overturned or refused faith 
and credit by another Department of Government,''\142\ More recently, 
the Court avoided a similar situation by a close construction of a 

        \141\See United States v. Ferreira, 13 How. (54 U.S.) 40 (1852); 
Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865); In re Sanborn, 
148 U.S. 222 (1893); cf. McGrath v. Kritensen, 340 U.S. 162, 167-168 
        \142\Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 
103, 113-114 (1948).
        \143\Connor v. Johnson, 402 U.S. 690 (1971). Under Sec. 5 of the 
Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. Sec. 1973e, no State 
may ``enact or seek to administer'' any change in election law or 
practice different from that in effect on a particular date without 
obtaining the approval of the Attorney General or the district court in 
the District of Columbia, a requirement interpreted to reach 
reapportionment and redistricting. Allen v. State Board of Elections, 
393 U.S. 544 (1969); Perkins v. Matthews, 400 U.S. 379 (1971). The issue 
in Connor was whether a districting plan drawn up and ordered into 
effect by a federal district court, after it had rejected a 
legislatively-drawn plan, must be submitted for approval. Unanimously, 
on the papers without oral argument, the Court ruled that, despite the 
statute's inclusive language, it did not apply to court-drawn plans.

        Award of Execution.--The adherence of the Court to this 
proposition, however, has not extended to a rigid rule formulated by 
Chief Justice Taney, given its fullest expression in a posthumously-
published opinion.\144\ In Gordon v. United States,\145\ the Court 
refused to hear an appeal from a decision of the Court of Claims; the 
act establishing the Court of Claims provided for ap

[[Page 622]]
peals to the Supreme Court, after which judgments in favor of claimants 
were to be referred to the Secretary of the Treasury for payments out of 
the general appropriation for payment of private claims. But the act 
also provided that no funds should be paid out of the Treasury for any 
claims ``till after an appropriation therefor shall be estimated by the 
Secretary of the Treasury.''\146\ The opinion of the Court merely stated 
that the implication of power in the executive officer and in Congress 
to revise all decisions of the Court of Claims requiring payment of 
money denied that court the judicial power from the exercise of which 
``alone'' appeals could be taken to the Supreme Court.\147\

        \144\The opinion was published in 117 U.S. 697. See infra, n. 
58, and text. See United States v. Jones, 119 U.S. 477 (1886). The Chief 
Justice's initial effort was in United States v. Ferreira, 13 How. (54 
U.S.) 40 (1852).
        \145\2 Wall. (69 U.S.) 561 (1865).
        \146\Act of February 24, 1855, 10 Stat. 612, as amended, Act of 
March 3, 1963, 12 Stat. 737.
        \147\Gordon v. United States, 2 Wall. (69 U.S.) 561 (1865). 
Following congressional repeal of the objectionable section, Act of 
March 17, 1866, 14 Stat. 9, the Court accepted appellate jurisdiction. 
United States v. Jones, 119 U.S. 477 (1886); De Groot v. United States, 
5 Wall. (72 U.S.) 419 (1867). But note that execution of the judgments 
was still dependent upon congressional appropriations. On the effect of 
the requirement for appropriations at a time when appropriations had to 
be made for judgments over $100,000, see Glidden Co. v. Zdanok, 370 U.S. 
530, 568-571 (1962). Cf. Regional Rail Reorganization Act Cases 
(Blanchette v. Connecticut General Ins. Corp.), 419 U.S. 102, 148-149 & 
n. 35 (1974).

        In his posthumously-published opinion, Chief Justice Taney, 
because the judgment of the Court of Claims and the Supreme Court 
depended for execution upon future action of the Secretary and of 
Congress, regarded any such judgment as nothing more than a certificate 
of opinion and in no sense a judicial judgment. Congress could not 
therefore authorize appeals to the Supreme Court in a case where its 
judicial power could not be exercised, where its judgment would not be 
final and conclusive upon the parties, and where processes of execution 
were not awarded to carry it into effect. Taney then proceeded to 
enunciate a rule which was rigorously applied until 1933: the award of 
execution is a part and an essential part of every judgment passed by a 
court exercising judicial powers and no decision was a legal judgment 
without an award of execution.\148\ The rule was most significant in 
barring the lower federal courts from hearing proceedings for 
declaratory judgments\149\ and in denying appellate jurisdiction in the 
Supreme Court from declaratory proceedings in state courts.\150\

        \148\Published at 117 U.S. 697, 703. Subsequent cases accepted 
the doctrine that an award of execution as distinguished from finality 
of judgment was an essential attribute of judicial power. See In re 
Sanborn, 148 U.S. 122, 226, (1893); ICC v. Brimson, 154 U.S. 447, 483 
(1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 
(1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 
219 U.S. 346, 355, 361-362 (1911): Postum Cereal Co. v. California Fig 
Nut Co., 272 U.S. 693 (1927).
        \149\Liberty Warehouse Co. v. Grannis, 273 U.S. 70 (1927).
        \150\Liberty Warehouse Co. v. Burley Tobacco Growers' Coop. 
Marketing Assn., 276 U.S. 71 (1928).


[[Page 623]]

        But, in 1927, the Court began backing away from its absolute 
insistence upon an award of execution. Unanimously holding that a 
declaratory judgment in a state court was res judicata in a subsequent 
proceeding in federal court, the Court admitted that ``[w]hile 
ordinarily a case or judicial controversy results in a judgment 
requiring award of process of execution to carry it into effect, such 
relief is not an indispensable adjunct to the exercise of the judicial 
function.''\151\ Then, in 1933, the Court interred the award-of-
execution rule in its rigid form and accepted an appeal from a state 
court in a declaratory proceeding.\152\ Finality of judgment, however, 
remains the rule in determination of what is judicial power without 
regard to the demise of Chief Justice Taney's formulation.

        \151\Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123, 
132 (1927).
        \152\Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933). 
The decisions in Swope and Wallace removed all constitutional doubts 
previously shrouding a proposed federal declaratory judgment act, which 
was enacted in 1934, 48 Stat. 955, 28 U.S.C. Sec. Sec. 2201-2202, and 
unanimously sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 


      The Contempt Power

        Categories of Contempt.--Crucial to an understanding of the 
history of the law governing the courts' powers of contempt is an 
awareness of the various kinds of contempt. With a few notable 
exceptions,\153\ the Court has consistently distinguished between 
criminal and civil contempts on the basis of the vindication of the 
authority of the courts on the one hand and the preservation and 
enforcement of the rights of the parties on the other. A civil contempt 
has been traditionally viewed as the refusal of a person in a civil case 
to obey a mandatory order. It is incomplete in nature, may be purged by 
obedience to the court order, and does not involve a sentence for a 
definite period of time. The classic criminal contempt is one where the 
act of contempt has been completed, punishment is imposed to vindicate 
the authority of the court, and a person cannot by subsequent action 
purge himself of such contempt.\154\ In the case of Shillitani v. United 
States,\155\ the defendants were sentenced by their respective District 
Courts for two years imprisonment for contempt of court; the sentence 
contained a purge clause providing for the unconditional release of the 
contemnors upon agreeing to testify before a grand jury.

        \153\E.g., United States v. United Mine Workers, 330 U.S. 258 
        \154\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 
(1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W. 
B. Conkey Co., 194 U.S. 324, 327-328 (1904).
        \155\384 U.S. 364 (1966).

[[Page 624]]

        Upon appeal, the Supreme Court held that the defendants were in 
civil contempt, notwithstanding their sentence for a definite period of 
time, on the grounds that the test for determining whether the contempt 
is civil or criminal is what the court primarily seeks to accomplish by 
imposing sentence.\156\ Here, the purpose was to obtain answers to the 
questions for the grand jury and the court provided for the defendants' 
release upon compliance; whereas, ``a criminal contempt proceeding would 
be characterized by the imposition of an unconditional sentence for 
punishment or deterrence.''\157\ The issue of whether a certain contempt 
is either civil or criminal can be of great importance as demonstrated 
in the dictum of Ex parte Grossman,\158\ in which Chief Justice Taft, 
while holding for the Court on the main issue that the President may 
pardon a criminal contempt, noted that he may not pardon a civil 
contempt. Notwithstanding the importance of distinguishing between the 
two, there have been instances where defendants have been charged with 
both civil and criminal contempt for the same act.\159\

        \156\Id., 370.
        \157\Id., n. 6. See Hicks v. Feiock, 485 U.S. 624 (1988) 
(remanding for determination whether payment of child support arrearages 
would purge a determinate sentence, the proper characterization critical 
to decision on a due process claim).
        \158\267 U.S. 87, 119-120 (1925). In an analogous case, the 
Court was emphatic in a dictum that Congress cannot require a jury trial 
where the contemnor has failed to perform a positive act for the relief 
of private parties, Michalson v. United States ex rel. Chicago, S.P., M. 
& Ry. Co., 266 U.S. 42, 65-66 (1924). But see Bloom v. Illinois, 391 
U.S. 194, 202 (1968).
        \159\See United States v. United Mine Workers, 330 U.S. 258, 299 

        A second but more subtle distinction, with regard to the 
categories of contempt, is the difference between direct and indirect 
contempt--albeit civil or criminal in nature. Direct contempt results 
when the contumacious act is committed ``in the presence of the Court or 
so near thereto as to obstruct the administration of justice;''\160\ 
indirect contempt is behavior which the Court did not itself 
witness.\161\ The nature of the contumacious act, i.e., whether it is 
direct or indirect, is important because it determines the appropriate 
procedure for charging the contemnor. As will be evidenced in the 
following discussion, the history of the contempt powers of the American 
judiciary is marked by two trends: a shrinking of the court's power to 
punish a person summarily and a multiply

[[Page 625]]
ing of the due process requirements that must otherwise be met when 
finding an individual to be in contempt.\162\

        \160\Act of March 2, 1831, ch. 99, Sec. 1, 4 Stat. 488. Cf. Rule 
42(a), FRCrP, which provides that ``[a] criminal contempt may be 
punished summarily if the judge certifies that he saw or heard the 
conduct constituting the contempt and that it was committed in the 
actual presence of the court.'' See also Beale, Contempt of Court, Civil 
and Criminal, 21 Harv. L. Rev. 161, 171-172 (1908).
        \161\See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191 
        \162\Many of the limitations placed on the inferior federal 
courts have been issued on the basis of the Supreme Court's supervisory 
power over them rather than upon a constitutional foundation, while, of 
course, the limitations imposed on state courts necessarily are of 
constitutional dimensions. Indeed, it is often the case that a 
limitation, which is applied to an inferior federal court as a 
superintending measure, is then transformed into a constitutional 
limitation and applied to state courts. Compare Cheff v. Schnackenberg, 
384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). In the 
latter stage, the limitations then bind both federal and state courts 
alike. Therefore, in this section, Supreme Court constitutional 
limitations on state court contempt powers are cited without restriction 
for equal application to federal courts.

        The Act of 1789.--The summary power of the courts of the United 
States to punish contempts of their authority had its origin in the law 
and practice of England where disobedience of court orders was regarded 
as contempt of the King himself and attachment was a prerogative process 
derived from presumed contempt of the sovereign.\163\ By the latter part 
of the eighteenth century, summary power to punish was extended to all 
contempts whether committed in or out of court.\164\ In the United 
States, the Judiciary Act of 1789 in section 17\165\ conferred power on 
all courts of the United States ``to punish by fine or imprisonment, at 
the discretion of said courts, all contempts of authority in any cause 
or hearing before the same.'' The only limitation placed on this power 
was that summary attachment was made a negation of all other modes of 
punishment. The abuse of this extensive power led, following the 
unsuccessful impeachment of Judge James H. Peck of the Federal District 
Court of Missouri, to the passage of the Act of 1831 limiting the power 
of the federal courts to punish contempts to misbehavior in the presence 
of the courts, ``or so near thereto as to obstruct the administration of 
justice,'' to the misbehavior of officers of courts in their official 
capacity, and to disobedience or resistance to any lawful writ, process 
or order of the court.\166\

        \163\Fox, The King v. Almon, 24 L.Q. Rev. 184, 194-195 (1908).
        \164\Fox, The Summary Power to Punish Contempt, 25 L.Q. Rev. 
238, 252 (1909).
        \165\1 Stat. 83 (1789).
        \166\18 U.S.C. Sec. 401. For a summary of the Peck impeachment 
and the background of the act of 1831, see Frankfurter and Landis, Power 
of Congress Over Procedure in Criminal Contempts in ``Inferior'' Federal 
Courts--A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1024-
1028 (1924).

        An Inherent Power.--The validity of the act of 1831 was 
sustained forty-three years later in Ex parte Robinson,\167\ in which 
Justice Field for the Court expounded principles full of potentialities 
for conflict. He declared: ``The power to punish for contempts is 
inherent in all courts; its existence is essential to the preservation 
of order in judicial proceedings, and to the enforce

[[Page 626]]
ment of the judgments, orders, and writs of the courts, and consequently 
to the due administration of justice. The moment the courts of the 
United States were called into existence and invested with jurisdiction 
over any subject, they became possessed of this power.'' Expressing 
doubts concerning the validity of the act as to the Supreme Court, he 
declared, however, that there could be no question of its validity as 
applied to the lower courts on the ground that they are created by 
Congress and that their ``powers and duties depend upon the act calling 
them into existence, or subsequent acts extending or limiting their 
jurisdiction.''\168\ With the passage of time, later adjudications, 
especially after 1890, came to place more emphasis on the inherent power 
of courts to punish contempts than upon the power of Congress to 
regulate summary attachment.

        \167\19 Wall. (86 U.S.) 505 (1874).
        \168\Id., 505-511.

        By 1911, the Court was saying that the contempt power must be 
exercised by a court without referring the issues of fact or law to 
another tribunal or to a jury in the same tribunal.\169\ In Michaelson 
v. United States,\170\ the Court intentionally placed a narrow 
interpretation upon those sections of the Clayton Act\171\ relating to 
punishment for contempt of court by disobedience of injunctions in labor 
disputes. The sections in question provided for a jury upon the demand 
of the accused in contempt cases in which the acts committed in 
violation of district court orders also constituted a crime under the 
laws of the United States or of those of the State where they were 
committed. Although Justice Sutherland reaffirmed earlier rulings 
establishing the authority of Congress to regulate the contempt power, 
he went on to qualify this authority and declared that ``the attributes 
which inhere in the power [to punish contempt] and are inseparable from 
it can neither be abrogated nor rendered practically inoperative.'' The 
Court mentioned specifically ``the power to deal summarily with contempt 
committed in the presence of the courts or so near thereto as to 
obstruct the administration of justice,'' and the power to enforce 
mandatory decrees by coercive means.\172\ This latter power, to enforce, 
the Court has held, includes the authority to appoint private counsel to 
prosecute a criminal contempt.\173\

        \169\Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 
(1911). See also In re Debs, 158 U.S. 564, 595 (1895).
        \170\266 U.S. 42 (1924).
        \171\38 Stat. 730, 738 (1914).
        \172\266 U.S., 65-66. See, generally, Frankfurter and Landis, 
Power of Congress Over Procedure in Criminal Contempts in ``Inferior'' 
Federal Courts--A Study in Separation of Powers, 37 Harv. L. Rev. 1010 
        \173\Young v. United States ex rel. Vuitton, 481 U.S. 787, 793-
801 (1987). However, the Court, invoking its supervisory power, 
instructed the lower federal courts first to request the United States 
Attorney to prosecute a criminal contempt and only if refused should 
they appoint a private lawyer. Id., 801-802. Still using its supervisory 
power, the Court held that the district court had erred in appointing 
counsel for a party that was the beneficiary of the court order; 
disinterested counsel had to be appointed. Id., 802-808. Justice Scalia 
contended that the power to prosecute is not comprehended within Article 
III judicial power and that federal judges had no power, inherent or 
otherwise, to initiate a prosecution for contempt or to appoint counsel 
to pursue it. Id., 815. See also United States v. Providence Journal 
Co., 485 U.S. 693 (1988), which involved the appointment of a 
disinterested private attorney. The Supreme Court dismissed the writ of 
certiorari after granting it, however, holding that only the Solicitor 
General representing the United States could bring the petition to the 
Court. See 28 U.S.C. Sec. 518.


[[Page 627]]

        While the contempt power may be inherent, it is not unlimited. 
In Spallone v. United States,\174\ the Court held that a district court 
had abused its discretion by imposing contempt sanctions on individual 
members of a city council for refusing to vote to implement a consent 
decree remedying housing discrimination by the city. The proper remedy, 
the Court indicated, was to proceed first with contempt sanctions 
against the city, and only if that course failed should it proceed 
against the council members individually.

        \174\493 U.S. 265 (1990). The decision was an exercise of the 
Court's supervisory power. Id., 276. Four Justices dissented. Id., 281.

        First Amendment Limitations on the Contempt Power.--The phrase 
``in the presence of the Court or so near thereto as to obstruct the 
administration of justice'' was interpreted in Toledo Newspaper Co. v. 
United States\175\ so broadly as to uphold the action of a district 
court judge in punishing for contempt a newspaper for publishing 
spirited editorials and cartoons on questions at issue in a contest 
between a street railway company and the public over rates. A majority 
of the Court held that the test to be applied in determining the 
obstruction of the administration of justice is not the actual 
obstruction resulting from an act, but ``the character of the act done 
and its direct tendency to prevent and obstruct the discharge of 
judicial duty.'' Similarly, the test whether a particular act is an 
attempt to influence or intimidate a court is not the influence exerted 
upon the mind of a particular judge but ``the reasonable tendency of the 
acts done to influence or bring about the baleful result . . . without 
reference to the consideration of how far they may have been without 
influence in a particular case.''\176\ In Craig v. Hecht,\177\ these 
criteria were applied to sustain the imprisonment of the comptroller of 
New York City for writing and publishing a letter to a public service 
commissioner which criticized the action of a United States district 
judge in receivership proceedings.

        \175\247 U.S. 402 (1918).
        \176\Id., 418-421.
        \177\263 U.S. 255 (1923).

[[Page 628]]

        The decision in the Toledo Newspaper case, however, did not 
follow earlier decisions interpreting the act of 1831 and was grounded 
on historical error. For these reasons, it was reversed in Nye v. United 
States,\178\ and the theory of constructive contempt based on the 
``reasonable tendency'' rule was rejected in a proceeding wherein 
defendants in a civil suit, by persuasion and the use of liquor, induced 
a plaintiff feeble in mind and body to ask for dismissal of the suit he 
had brought against them. The events in the episode occurred more than 
100 miles from where the court was sitting and were held not to put the 
persons responsible for them in contempt of court. Although Nye v. 
United States was exclusively a case of statutory construction, it was 
significant from a constitutional point of view because its reasoning 
was contrary to that of earlier cases narrowly construing the act of 
1831 and asserting broad inherent powers of courts to punish contempts 
independently of, and contrary to, congressional regulation of this 
power. Bridges v. California\179\ was noteworthy for the dictum of the 
majority that the contempt power of all courts, federal as well as 
state, is limited by the guaranty of the First Amendment against 
interference with freedom of speech or of the press.\180\

        \178\313 U.S. 33, 47-53 (1941).
        \179\314 U.S. 252, 260 (1941).
        \180\See also Wood v. Georgia, 370 U.S. 375 (1962), further 
clarifying the limitations imposed by the First Amendment upon this 
judicial power and delineating the requisite serious degree of harm to 
the administration of law necessary to justify exercise of the contempt 
power to punish the publisher of an out-of-court statement attacking a 
charge to the grand jury, absent any showing of actual interference with 
the activities of the grand jury.
        It is now clearly established that courtroom conduct to be 
punishable as contempt ``must constitute an imminent, not merely a 
likely, threat to the administration of justice. The danger must not be 
remote or even probable; it must immediately imperil.'' Craig v. Harney, 
331 U.S. 367, 376 (1947); In re Little, 404 U.S. 553, 555 (1972).

        A series of cases involving highly publicized trials and much 
news media attention and exploitation,\181\ however, caused the Court to 
suggest that the contempt and other powers of trial courts should be 
utilized to stem the flow of publicity before it can taint a trial. 
Thus, Justice Clark, speaking for the majority in Shepard v. 
Maxwell,\182\ noted that ``[i]f publicity during the proceedings 
threatens the fairness of the trial, a new trial should be ordered. But 
we must remember that reversals are but palliatives; the cure lies in 
those remedial measures that will prevent the prejudice at its 
inception. Neither prosecutors, counsel for defense, the accused, 
witness, court staff nor law enforcement officers coming under the

[[Page 629]]
jurisdiction of the court should be permitted to frustrate its function. 
Collaboration between counsel and the press as to information affecting 
the fairness of a criminal trial is not only subject to regulation, but 
is highly censurable and worthy of disciplinary measures.'' Though the 
regulation the Justice had in mind was presumably to be of the parties 
and related persons rather than of the press, the potential for conflict 
with the First Amendment is obvious as well as is the necessity for 
protection of the equally important right to a fair trial.\183\

        \181\E.g., Estes v. Texas, 381 U.S. 532 (1965); Marshall v. 
United States, 360 U.S. 310 (1959); Sheppard v. Maxwell, 384 U.S. 333 
        \182\384 U.S. 333, 363 (1966).
        \183\For another approach, bar rules regulating the speech of 
counsel and the First Amendment standard, see Gentile v. State Bar of 
Nevada, 501 U.S. 1030 (1991).

        Due Process Limitations on Contempt Power: Right to Notice and 
to a Hearing versus Summary Punishment.--Included among the notable 
cases raising questions concerning the power of a trial judge to punish 
summarily for alleged misbehavior in the course of a trial is Ex parte 
Terry,\184\ decided in 1888. Terry had been jailed by the United States 
Circuit Court of California for assaulting in its presence a United 
States marshal. The Supreme Court denied his petition for a writ of 
habeas corpus. In Cooke v. United States,\185\ however, the Court 
remanded for further proceedings a judgment of the United States Circuit 
Court of Texas sustaining the judgment of a United States district judge 
sentencing to jail an attorney and his client for presenting the judge a 
letter which impugned his impartiality with respect to their case, still 
pending before him. Distinguishing the case from that of Terry, Chief 
Justice Taft, speaking for the unanimous Court, said: ``The important 
distinction . . . is that this contempt was not in open court. . . . To 
preserve order in the court room for the proper conduct of business, the 
court must act instantly to suppress disturbance or violence or physical 
obstruction or disrespect to the court when occurring in open court. 
There is no need of evidence or assistance of counsel before punishment, 
because the court has seen the offense. Such summary vindication of the 
court's dignity and authority is necessary. It has always been so in the 
courts of the common law and the punishment imposed is due process of 

        \184\128 U.S. 289 (1888).
        \185\267 U.S. 517 (1925).
        \186\Id., 535, 534.

        As to the timeliness of summary punishment, the Court at first 
construed Rule 42(a) of the Federal Rules of Criminal Procedure, which 
was designed to afford judges clearer guidelines as to the exercise of 
their contempt power, in Sacher v. United States,\187\ as to

[[Page 630]]
allow ``the trial judge, upon the occurrence in his presence of a 
contempt, immediately and summarily to punish it, if, in his opinion, 
delay [would] prejudice the trial. . . . [On the other hand,] if he 
believes the exigencies of the trial require that he defer judgment 
until its completion he may do so without extinguishing his 
power.''\188\ However, subsequently, interpreting the due process clause 
and thus binding both federal and state courts, the Court held that, 
although the trial judge may summarily and without notice or hearing 
punish contemptuous conduct committed in his presence and observed by 
him, if he does choose to wait until the conclusion of the proceeding he 
must afford the alleged contemnor at least reasonable notice of the 
specific charge and opportunity to be heard in his own defense. 
Apparently, a ``full scale trial'' is not contemplated.\189\

        \187\343 U.S. 1 (1952).
        \188\Id., 11.
        \189\Taylor v. Hayes, 418 U.S. 488 (1974). In a companion case, 
the Court observed that although its rule conceivably encourages a trial 
judge to proceed immediately rather than awaiting a calmer moment, 
``[s]ummary convictions during trials that are unwarranted by the facts 
will not be invulnerable to appellate review.'' Codispoti v. 
Pennsylvania, 418 U.S. 506, 517 (1974).

        Curbing the judge's power to consider conduct as occurring in 
his presence, the Court, in Harris v. United States,\190\ held that 
summary contempt proceedings in aid of a grand jury probe, achieved 
through swearing the witness and repeating the grand jury's questions in 
the presence of the judge, did not constitute contempt ``in the actual 
presence of the court'' for purposes of Rule 42(a); rather, the absence 
of a disturbance in the court's proceedings or of the need to 
immediately vindicate the court's authority makes the witness' refusal 
to testify an offense punishable only after notice and a hearing.\191\ 
Moreover, when it is not clear the judge was fully aware of the 
contemptuous behavior when it occurred, notwithstanding the fact it 
occurred during the trial, ``a fair hearing would entail the opportunity 
to show that the version of the event related to the judge was 
inaccurate, misleading, or incomplete.''\192\

        \190\382 US. 162 (1965), overruling Brown v. United States, 359 
U.S. 41 (1959).
        \191\But see Green v. United States, 356 U.S. 165 (1958) 
(noncompliance with order directing defendants to surrender to marshal 
for execution of their sentence is an offense punishable summarily as a 
criminal contempt); Reina v. United States, 364 U.S. 507 (1960).
        \192\Johnson v. Mississippi, 403 U.S. 212, 215 (1971) (citing In 
re Oliver, 333 U.S. 257, 275-276 (1948)).

        Due Process Limitations on Contempt Power: Right to Jury 
Trial.--Until recently, it was the rule that the right to a jury trial 
was not available in criminal contempt cases.\193\ But in Cheff

[[Page 631]]
v. Schnackenberg,\194\ it was held that when the punishment in a 
criminal contempt case in federal court is more than the sentence for a 
petty offense, the Court drew the traditional line at six months, a 
defendant is entitled to trial by jury. Although the ruling was made 
pursuant to the Supreme Court's supervisory powers and was thus 
inapplicable to state courts and presumably subject to legislative 
revision, two years later the Court held that the Constitution did 
require jury trials in criminal contempt cases in which the offense was 
more than a petty one.\195\ Whether an offense is petty or not is 
determined by the maximum sentence authorized by the legislature or, in 
the absence of a statute, by the sentence actually imposed. Again the 
Court drew the line between petty offenses and more serious ones at six 
months imprisonment. Although this case involved an indirect criminal 
contempt, willful petitioning to admit to probate a will known to be 
falsely prepared, the majority in dictum indicated that even in cases of 
direct contempt a jury will be required in appropriate instances. ``When 
a serious contempt is at issue, considerations of efficiency must give 
way to the more fundamental interest of ensuring the even-handed 
exercise of judicial power.''\196\ Presumably, there is no equivalent 
right to a jury trial in civil contempt cases,\197\ although one could 
spend much more time in jail pursuant to a judgment of civil contempt 
than would be the case with most criminal contempts;\198\ however, the 
Court has expanded the right to jury trials in federal civil cases on 
nonconstitutional grounds,\199\ so that it is possible the process 
followed in criminal contempts could be repeated.

        \193\See Green v. United States, 356 U.S. 165 (1958); United 
States v. Barnett, 376 U.S. 681 (1964), and cases cited. The dissents of 
Justices Black and Douglas in those cases prepared the ground for the 
Court's later reversal. On the issue, see Frankfurter and Landis, Power 
of Congress over Procedure in Criminal Contempts in `Inferior' Federal 
Courts--A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1042-
1048 (1924).
        \194\384 U.S. 373 (1966).
        \195\Bloom v. Illinois, 391 U.S. 194 (1968).
        \196\Id., 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974) 
the Court held required a jury trial when the trial judge awaits the 
conclusion of the proceeding and then imposes separate sentences in 
which the total aggregated more than six months. For a tentative essay 
at defining a petty offense when a fine is levied, see Muniz v. Hoffman, 
422 U.S. 454, 475-477 (1975).
        \197\The Sixth Amendment is applicable only to criminal cases 
and the Seventh to suits at common law, but the due process clause is 
available if needed.
        \198\Note that under 28 U.S.C. Sec. 1826 a recalcitrant witness 
before a grand jury may be imprisoned for the term of the grand jury, 
which can be 36 months. 18 U.S.C. Sec. 3331(a).
        \199\E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); 
Dairy Queen v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 
(1970). However, the Court's expansion of jury trial rights may have 
halted with McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

        Due Process Limitations on Contempt Powers: Impartial 
Tribunal.--In Cooke v. United States,\200\ Chief Justice Taft ut

[[Page 632]]
tered some cautionary words to guide trial judges in the utilization of 
their contempt powers. ``The power of contempt which a judge must have 
and exercise in protecting the due and orderly administration of justice 
and in maintaining the authority and dignity of the court is most 
important and indispensable. But its exercise is a delicate one and care 
is needed to avoid arbitrary or oppressive conclusions. This rule of 
caution is more mandatory where the contempt charged has in it the 
element of personal criticism or attack upon the judge. The judge must 
banish the slightest personal impulse to reprisal, but he should not 
bend backward and injure the authority of the court by too great 
leniency. The substitution of another judge would avoid either tendency 
but it is not always possible. Of course, where acts of contempt are 
palpably aggravated by a personal attack upon the judge in order to 
drive the judge out of the case for ulterior reasons, the scheme should 
not be permitted to succeed. But attempts of this kind are rare. All of 
such cases, however, present difficult questions for the judge. All we 
can say upon the whole matter is that where conditions do not make it 
impracticable, or where the delay may not injure public or private 
right, a judge called upon to act in a case of contempt by personal 
attack upon him, may, without flinching from his duty, properly ask that 
one of his fellow judges take his place. Cornish v. United States, 299 
F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. The 
case before us is one in which the issue between the judge and the 
parties had come to involve marked personal feeling that did not make 
for an impartial and calm judicial consideration and conclusion, as the 
statement of the proceedings abundantly shows.''

        \200\267 U.S. 517, 539 (1925).

        Sacher v. United States\201\ grew out of a tempestuous trial of 
eleven Communist Party leaders in which Sacher and others were counsel 
for the defense. Upon the conviction of the defendants, the trail judge 
at once found counsel guilty of criminal contempt and imposed jail terms 
of up to six months. At issue directly was whether the contempt charged 
was one which the judge was authorized to determine for himself or 
whether it was one which under Rule 42(b) could only be passed upon by 
another judge and after notice and hearing, but behind this issue loomed 
the applicability and nature of due process requirements, in particular 
whether the defense attorneys were constitutionally entitled to trial 
before a different judge. A divided Court affirmed most of the 
convictions, setting aside others, and denied that due process required 
a hearing before a different judge. ``We hold that Rule 42 allows the

[[Page 633]]
trial judge, upon the occurrence in his presence of a contempt, 
immediately and summarily to punish it, if, in his opinion, delay will 
prejudice the trial. We hold, on the other hand, that if he believes the 
exigencies of the trial require that he defer judgment until its 
completion, he may do so without extinguishing his power. . . . We are 
not unaware or unconcerned that persons identified with unpopular causes 
may find it difficult to enlist the counsel of their choice. But we 
think it must be ascribed to causes quite apart from fear of being held 
in contempt, for we think few effective lawyers would regard the tactics 
condemned here as either necessary or helpful to a successful defense. 
That such clients seem to have thought these tactics necessary is likely 
to contribute to the bar's reluctance to appear for them rather more 
than fear of contempt. But that there may be no misunderstanding, we 
make clear that this Court, if its aid be needed, will unhesitatingly 
protect counsel in fearless, vigorous and effective performance of every 
duty pertaining to the office of the advocate on behalf of any person 
whatsoever. But it will not equate contempt with courage or insults with 
independence. It will also protect the processes of orderly trial, which 
is the supreme object of the lawyers calling.\202\

        \201\343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 
494 (1951).
        \202\Id., 13-14.

        In Offutt v. United States,\203\ acting under its supervisory 
powers over the lower federal courts, the Court set aside a criminal 
contempt conviction imposed on a lawyer after a trial marked by highly 
personal recriminations between the trial judge and the lawyer. In a 
situation in which the record revealed that the contumacious conduct was 
the product of both lack of self-restraint on the part of the contemnor 
and a reaction to the excessive zeal and personal animosity of the trial 
judge, the majority felt that any contempt trial must be held before 
another judge. This holding that when a judge becomes personally 
embroiled in the controversy with an accused he must defer trial of his 
contempt citation to another judge, founded on the Court's supervisory 
powers, was constitutionalized in Mayberry v. Pennsylvania,\204\ in 
which a defendant acting as his own counsel engaged in quite personal 
abuse of the trial judge. The Court appeared to leave open the option of 
the trial judge to act immediately and summarily to quell contempt

[[Page 634]]
by citing and convicting an offender, thus empowering the judge to keep 
the trial going,\205\ but if he should wait until the conclusion of the 
trial he must defer to another judge.

        \203\348 U.S. 11 (1954).
        \204\400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 
U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the 
absence of a personal attack on a judge that would tend to impair his 
detachment, the judge may still be required to excuse himself and turn a 
citation for contempt over to another judge if the response to the 
alleged misconduct in his courtroom partakes of the character of 
``marked personal feelings'' being abraded on both sides, so that it is 
likely the judge has felt a ``sting'' sufficient to impair his 
objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).
        \205\See Illinois v. Allen, 397 U.S. 337 (1970), in which the 
Court affirmed that summary contempt or expulsion may be used to keep a 
trial going.

        Contempt by Disobedience of Orders.--Disobedience of injunctive 
orders, particularly in labor disputes, has been a fruitful source of 
cases dealing with contempt of court. In United States v. United Mine 
Workers,\206\ the Court held that disobedience of a temporary 
restraining order issued for the purpose of maintaining existing 
conditions, pending the determination of the court's jurisdiction, is 
punishable as criminal contempt where the issue is not frivolous but 
substantial. Second, the Court held that an order issued by a court with 
jurisdiction over the subject matter and person must be obeyed by the 
parties until it is reversed by orderly and proper proceedings, even 
though the statute under which the order is issued is 
unconstitutional.\207\ Third, on the basis of United States v. 
Shipp,\208\ it was held that violations of a court's order are 
punishable as criminal contempt even though the order is set aside on 
appeal as in excess of the court's jurisdiction or though the basic 
action has become moot. Finally, the Court held that conduct can amount 
to both civil and criminal contempt, and the same acts may justify a 
court in resorting to coercive and punitive measures, which may be 
imposed in a single proceeding.\209\

        \206\330 U.S. 258, 293-307 (1947).
        \207\See Walker v. City of Birmingham, 388 U.S. 307 (1967).
        \208\203 U.S. 563 (1906).
        \209\See United States v. United Mine Workers, 330 U.S. 258, 299 
(1947). But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and supra, 
630-631, as to due process limitations.

        Contempt Power in Aid of Administrative Power.--Proceedings to 
enforce the orders of administrative agencies and subpoenas issued by 
them to appear and produce testimony have become increasingly common 
since the leading case of ICC v. Brimson,\210\ where it was held that 
the contempt power of the courts might by statutory authorization be 
utilized in aid of the Interstate Commerce Commission in enforcing 
compliance with its orders. In 1947, a proceeding to enforce a subpoena 
duces tecum issued by the Securities and Exchange Commission during the 
course of an investigation was ruled to be civil in character on the 
ground that the only sanction was a penalty designed to compel 
obedience. The Court then enunciated the principle that where a fine or 
imprisonment imposed on the contemnor is designed to coerce him to do 
what he has refused to do, the proceeding is one for civil con

[[Page 635]]
tempt.\211\ Notwithstanding the power of administrative agencies to cite 
an individual for contempt, however, such bodies must be acting within 
the authority that has been lawfully delegated to them.\212\

        \210\154 U.S. 447 (1894).
        \211\Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent 
of Justice Frankfurter. For delegations of the subpoena power to 
administrative agencies and the use of judicial process to enforce them, 
see also McCrone v. United States, 307 U.S. 61 (1939); Endicott Johnson 
Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. 
Walling, 327 U.S. 186 (1946).
        \212\Gojack v. United States, 384 U.S. 702 (1966). See also 
supra for a discussion on Congress' power to cite an individual for 
contempt by virtue of its investigatory duties, which is applicable, at 
least by analogy, to administrative agencies.
      Sanctions Other Than Contempt

        Long recognized by the courts as inherent powers are those 
authorities that are necessary to the administration of the judicial 
system itself, of which the contempt power just discussed is only the 
most controversial.\213\ Courts, as an independent and coequal branch of 
government, once they are created and their jurisdiction established, 
have the authority to do what courts have traditionally done in order to 
accomplish their assigned tasks.\214\ Of course, these inherent powers 
may be limited by statutes and by rules,\215\ but, just as was noted in 
the discussion of the same issue with respect to contempt, the Court 
asserts both the power to act in areas not covered by statutes and rules 
but also the power to act unless Congress has not only provided 
regulation of the exercise of the power but also unmistakably enunciated 
its intention to limit the inherent powers.\216\

        \213\``Certain implied powers must necessarily result to our 
Courts of justice from the nature of their institution. . . . To fine 
for contempt--imprison for contumacy--inforce the observance of order, 
c. are powers which cannot be dispensed with in a Court, because they 
are necessary to the exercise of all others: and so far our Courts no 
doubt possess powers not immediately derived from statute. . . .'' 
United States v. Hudson and Goodwin, 7 Cr. (11 U.S.) 32, 34 (1812).
        \214\See Anderson v. Dunn, 6 Wheat. (19 U.S.) 204, 227 (1821); 
Ex parte Robinson, 19 Wall. (86 U.S.) 505, 510 (1874); Link v. Wabash R. 
Co., 370 U.S. 626, 630-631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 
43-46 (1991); and id., 58 (Justice Scalia dissenting), 60, 62-67 
(Justice Kennedy dissenting).
        \215\Id., 47.
        \216\Id., 46-51. But see id., 62-67 (Justice Kennedy 

        Thus, in the cited Chambers case, the Court upheld the 
imposition of monetary sanctions against a litigant and his attorney for 
bad-faith litigation conduct in a diversity case. Some of the conduct 
was covered by a federal statute and several sanction provisions of the 
Federal Rules of Civil Procedure, but some was not, and the Court held 
that, absent a showing that Congress had intended to limit the courts, 
they could utilize inherent powers to sanction for the entire course of 
conduct, including shifting attorney fees, ordi

[[Page 636]]
narily against the American rule.\217\ In another case, a party failed 
to comply with discovery orders and a court order concerning a schedule 
for filing briefs. The Supreme Court held that the attorney's fees 
statute did not allow assessment of such fees in that situation, but it 
remanded for consideration of sanctions under both the Federal Rule and 
the trial court's inherent powers, subject to a finding of bad 
faith.\218\ But bad faith is not always required for the exercise of 
some inherent powers. Thus, courts may dismiss an action for an 
unexplained failure of the moving party to prosecute it.\219\

        \217\Id., 49-51. On the implications of the fact that this was a 
diversity case, see id., 51-55.
        \218\Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
        \219\Link v. Wabash R. Co., 370 U.S. 626 (1962).
      Power to Issue Writs: The Act of 1789

        From the beginning of government under the Constitution of 1789, 
Congress has assumed, under the necessary and proper clause, its power 
to establish inferior courts, its power to regulate the jurisdiction of 
federal courts and the power to regulate the issuance of writs.\220\ The 
Thirteenth section of the Judiciary Act of 1789 authorized the circuit 
courts to issue writs of prohibition to the district courts and the 
Supreme Court to issue such writs to the circuit courts. The Supreme 
Court was also empowered to issue writs of mandamus ``in cases warranted 
by the principles and usages of law, to any courts appointed, or persons 
holding office, under the authority of the United States.''\221\ Section 
14 provided that all courts of the United States should ``have power to 
issue writs of scire facias, habeas corpus, and all other writs not 
specially provided for by statute, which may be necessary for the 
exercise of their respective jurisdiction, and agreeable to the 
principles and usages of law.''\222\ Although the Act of 1789 left the 
power over writs subject largely to the common law, it is significant as 
a reflection of the belief, in which the courts have on the whole 
concurred, that an act of Congress is necessary to confer judicial power 
to issue writs.\223\

        \220\Frankfurter & Landis, Power of Congress Over Procedure in 
Criminal Contempts in ``Inferior'' Federal Courts--A Study in Separation 
of Powers, 37 Harv. L. Rev. 1010, 1016-1023 (1924).
        \221\1 Stat. 73, Sec. 81.
        \222\Id., Sec. Sec. 81-82. See also United States v. Morgan, 346 
U.S. 502 (1954), holding that the All Writs section of the Judicial 
Code, 28 U.S.C. Sec. 1651(a), gives federal courts the power to employ 
the ancient writ of coram nobis.
        \223\This proposition was recently reasserted in Pennsylvania 
Bureau of Correction v. United States Marshals Service, 474 U.S. 34 
(1985) (holding that a federal district court lacked authority to order 
U.S. marshals to transport state prisoners, such authority not being 
granted by the relevant statutes).


[[Page 637]]

        Whether Article III itself is an independent source of the power 
of federal courts to fashion equitable remedies for constitutional 
violations or whether such remedies must fit within congressionally 
authorized writs or procedures is often left unexplored. In Missouri v. 
Jenkins,\224\ for example, the Court, rejecting a claim that a federal 
court exceeded judicial power under Article III by ordering local 
authorities to increase taxes to pay for desegregation remedies, 
declared that ``a court order directing a local government body to levy 
its own taxes is plainly a judicial act within the power of a federal 
court.\225\ In the same case, the Court refused to rule on ``the 
difficult constitutional issues'' presented by the State's claim that 
the district court had exceeded its constitutional powers in a prior 
order directly raising taxes, instead ruling that this order had 
violated principles of comity.\226\

        \224\495 U.S. 33 (1990).
        \225\Id., 55 (citing Griffin v. Prince Edward County School Bd., 
377 U.S. 218, 233-234 (1964) (an order that local officials ``exercise 
the power that is theirs'' to levy taxes in order to open and operate a 
desegregated school system ``is within the court's power if required to 
assure . . . petitioners that their constitutional rights will no longer 
be denied them'')).
        \226\Id., 50-52.

        Common Law Powers of District of Columbia Courts.--That portion 
of Sec. 13 which authorized the Supreme Court to issue writs of mandamus 
in the exercise of its original jurisdiction was held invalid in Marbury 
v. Madison,\227\ as an unconstitutional enlargement of the Supreme 
Court's original jurisdiction. After two more futile efforts to obtain a 
writ of mandamus, in cases in which the Court found that power to issue 
the writ had not been vested by statute in the courts of the United 
States except in aid of already existing jurisdiction,\228\ a litigant 
was successful in Kendall v. United States ex rel. Stokes,\229\ in 
finding a court that would take jurisdiction in a mandamus proceeding. 
This was the circuit court of the United States for the District of 
Columbia, which was held to have jurisdiction, on the theory that the 
common law, in force in Maryland when the cession of that part of the 
State that became the District of Columbia was made to the United 
States, remained in force in the District. At an early time, therefore, 
the federal courts established the rule that mandamus can be issued only 
when authorized by a constitutional statute and within the

[[Page 638]]
limits imposed by the common law and the separation of powers.\230\

        \227\1 Cr. (5 U.S.) 137 (1803). Cf. Wiscart v. D'Auchy, 3 Dall. 
(3 U.S.) 321 (1796).
        \228\McIntire v. Wood, 7 Cr. (11 U.S.) 504 (1813); McClung v. 
Silliman, 6 Wheat. (19 U.S.) 598 (1821).
        \229\12 Pet. (37 U.S.) 524 (1838).
        \230\In 1962, Congress conferred upon all federal district 
courts the same power to issue writs of mandamus as was hitherto 
exercisable by federal courts in the District of Columbia. 76 Stat. 744, 
28 U.S..C Sec. 1361.

        Habeas Corpus: Congressional and Judicial Control.--Although the 
writ of habeas corpus\231\ has a special status because its suspension 
is forbidden, except in narrow circumstances, by Article I. Sec. 9, cl. 
2, nowhere in the Constitution is the power to issue the writ vested in 
the federal courts. Could it be that despite the suspension clause 
restriction Congress could suspend de facto the writ simply by declining 
to authorize its issuance? Is a statute needed to make the writ 
available or does the right to habeas corpus stem by implication from 
the suspension clause or from the grant of judicial power without need 
of a statute?\232\ Since Chief Justice Marshall's opinion in Ex parte 
Bollman,\233\ it has been generally accepted that ``the power to award 
the writ by any of the courts of the United States, must be given by 
written law.''\234\ The suspension clause, Marshall explained, was an 
``injunction,'' an ``obligation'' to provide ``efficient means by which 
this great constitutional privilege should receive life and activity; 
for if the means be not in existence, the privilege itself would be 
lost, although no law for its suspension should be enacted.''\235\ And 
so it has been under

[[Page 639]]
stood since,\236\ with a few judicial voices raised to suggest that what 
Congress could not do directly it could not do by omission,\237\ but 
inasmuch as statutory authority has always existed authorizing the 
federal courts to grant the relief they deemed necessary under habeas 
corpus the Court has never had to face the question.\238\

        \231\Reference to the ``writ of habeas corpus'' is to the 
``Great Writ,'' habeas corpus ad subjiciendum, by which a court would 
inquire into the lawfulness of a detention of the petitioner. Ex parte 
Bollman, 4 Cr. (8 U.S.) 75, 95 (1807). For other uses, see Carbo v. 
United States, 364 U.S. 611 (1961); Price v. Johnston, 334 U.S. 266 
(1948). Technically, federal prisoners no longer utilize the writ of 
habeas corpus in seeking post-conviction relief, now the largest office 
of the writ, but proceed under 28 U.S.C. Sec. 2255, on a motion to 
vacate judgment. Intimating that if Sec. 2255 afforded prisoners a less 
adequate remedy than they would have under habeas corpus, it would be 
unconstitutional, the Court in United States v. Hayman, 342 U.S. 205 
(1952), held the two remedies to be equivalent. Cf. Sanders v. United 
States, 373 U.S. 1. 14 (1963). The claims cognizable under one are 
cognizable under the other. Kaufman v. United States, 394 U.S. 217 
(1969). Therefore, the term habeas corpus is used here to include the 
Sec. 2255 remedy. There is a plethora of writings about the writ. See, 
e.g., P. Bator, et al., Hart & Wechsler's The Federal Courts and the 
Federal System (Westbury, N.Y.: 3d ed. 1988), Ch. XI, 1465-1597 
(hereinafter Hart & Wechsler); Developments in the Law - Federal Habeas 
Corpus, 83 Harv. L. Rev. 1038 (1970).
        \232\Professor Chafee contended that by the time of the 
Constitutional Convention the right to habeas corpus was so well 
established no affirmative authorization was needed. The Most Important 
Human Right in the Constitution, 32 B.U.L. Rev. 143, 146 (1952). But 
compare Collins, Habeas Corpus for Convicts--Constitutional Right or 
Legislative Grace?, 40 Calif. L. Rev. 335, 344-345 (1952).
        \233\4 Cr. (8 U.S.) 75 (1807).
        \234\Id., 94. And see Ex parte Dorr, 3 How. (44 U.S.) 103 
        \235\Id., 95. Note that in quoting the clause, Marshall renders 
``shall not be suspended'' as ``should not be suspended.''
        \236\See Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). Cf. 
Carbo v. United States, 364 U.S. 611, 614 (1961).
        \237\E.g., Eisentrager v. Forrestal, 174 F. 2d 961, 966 
(D.C.Cir. 1949), revd. on other grounds sub nom., Johnson v. 
Eisentrager, 339 U.S. 763 (1950); and see Justice Black's dissent, id., 
791, 798: ``Habeas corpus, as an instrument to protect against illegal 
imprisonment, is written into the Constitution. Its use by courts cannot 
in my judgment be constitutionally abridged by Executive or by 
Congress.'' And in Jones v. Cunningham, 371 U.S. 236, 238 (1963), the 
Court said: ``The habeas corpus jurisdictional statute implements the 
constitutional command that the writ of habeas corpus be made 
available.'' (Emphasis supplied).
        \238\Cf. Ex Parte McCardle, 7 Wall. (74 U.S.) 506 (1869).

        Having determined that a statute was necessary before the 
federal courts had power to issue writs of habeas corpus, Chief Justice 
Marshall pointed to Sec. 14 of the Judiciary Act of 1789 as containing 
the necessary authority.\239\ As the Chief Justice read it, the 
authorization was limited to persons imprisoned under federal authority, 
and it was not until 1867, with two small exceptions,\240\ that 
legislation specifically empowered federal courts to inquire into the 
imprisonment of persons under state authority.\241\ Pursuant to this 
authorization, the Court expanded the use of the writ into a major 
instrument to reform procedural criminal law in federal and state 

        \239\Ex parte Bollman, 4 Cr. (8 U.S.) 75, 94 (1807). See Fay v. 
Noia, 372 U.S. 391, 409 (1963).
        \240\Act of March 2, 1833, Sec. 7, 4 Stat. 634 (federal 
officials imprisoned for enforcing federal law); Act of August 29, 1842, 
5 Stat. 539 (foreign nationals detained by a State in violation of a 
treaty). See also Bankruptcy Act of April 4, 1800, Sec. 38, 2 Stat. 19, 
32 (habeas corpus for imprisoned debtor discharged in bankruptcy), 
repealed by Act of December 19, 1803, 2 Stat. 248.
        \241\Act of February 5, 1867, 14 Stat. 385, conveyed power to 
federal courts ``to grant writs of habeas corpus in all cases where any 
person may be restrained of his or her liberty in violation of the 
constitution, or of any treaty or law of the United States. . . .'' On 
the law with respect to state prisoners prior to this statute, see Ex 
Parte Dorr, 3 How, (44 U.S.) 103 (1845); cf. Elkison v. Deliesseline, 8. 
Fed. Cas. 493 (No. 4366) (C.C.D.S.C. 1823) (Justice Johnson); Ex parte 
Cabrera, 4 Fed. Cas. 964 (No. 2278) (C.C.D.Pa. 1805) (Justice 

        Habeas Corpus: The Process of the Writ.--A petition for a writ 
of habeas corpus is filed by or on behalf of a person in ``custody,'' a 
concept which has been expanded so much that it is no longer restricted 
to actual physical detention in jail or prison.\242\

[[Page 640]]
Traditionally, the proceeding could not be used to secure an 
adjudication of a question which if determined in the petitioner's favor 
would not result in his immediate release, since a discharge from 
custody was the only function of the writ,\243\ but this restraint too 
the Court has abandoned in an emphasis upon the statutory language 
directing the habeas court to ``dispose of the matter as law and justice 
require.''\244\ Thus, even if a prisoner has been released from jail, 
the presence of collateral consequences flowing from his conviction 
gives the court jurisdiction to determine the constitutional validity of 
the conviction.\245\

        \242\28 U.S.C. Sec. Sec. 2241(c), 2254(a). ``Custody'' does not 
mean one must be confined; a person on parole or probation is in 
custody. Jones v. Cunningham, 371 U.S. 236 (1963). A person on bail or 
on his own recognizance is in custody, Justices of Boston Mun. Court v. 
Lydon, 466 U.S. 294, 300-301 (1984); Lefkowitz v. Newsome, 420 U.S. 283, 
291 n. 8 (1975); Hensley v. Municipal Court 411 U.S. 345 (1973), and 
Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973), held that an 
inmate of an Alabama prison was sufficiently in custody as well of 
Kentucky authorities who had lodged a detainer with Alabama to obtain 
the prisoner upon his release.
        \243\McNally v. Hill, 293 U.S. 131 (1934); Parker v. Ellis, 362 
U.S. 574 (1960).
        \244\28 U.S.C. Sec. 2243. See Peyton v. Rowe, 391 U.S. 54 
(1968). See also Maleng v. Cook, 490 U.S. 488 (1989).
        \245\Carafas v. LaVallee, 391 U.S. 234 (1968), overruling Parker 
v. Ellis, 362 U.S. 574 (1960). In Peyton v. Rowe, 391 U.S. 54 (1968), 
the Court overruled McNally v. Hill, 293 U.S. 131 (1934), and held that 
a prisoner may attack on habeas the second of two consecutive sentences 
while still serving the first. See also Walker v. Wainwright, 390 U.S. 
335 (1968) (prisoner may attack the first of two consecutive sentences 
although the only effect of a successful attack would be immediate 
confinement on the second sentence). Braden v. 30th Judicial Circuit 
Court, 410 U.S. 484 (1973), held that one sufficiently in custody of a 
State could use habeas to challenge the State's failure to bring him to 
trial on pending charges.

        Petitioners coming into federal habeas must first exhaust their 
state remedies, a limitation long settled in the case law and codified 
in 1948.\246\ It is only required that prisoners once present their 
claims in state court, either on appeal or collateral attack, and they 
need not return time and again to raise their issues before coming to 
federal court.\247\ While they were once required to petition the 
Supreme Court on certiorari to review directly their state convictions, 
prisoners have been relieved of this largely pointless exercise,\248\ 
although if the Supreme Court has taken and decided a case its judgment 
is conclusive in habeas on all issues of fact or law actually 

        \246\28 U.S.C. Sec. 2254(b). See Preiser v. Rodriguez, 411 U.S. 
475, 490-497 (1973), and id. 500, 512-524 (Justice Brennan dissenting); 
Rose v. Lundy, 455 U.S. 509, 515-521 (1982). If a prisoner submits a 
petition with both exhausted and unexhausted claims, the habeas court 
must dismiss the entire petition. Rose v. Lundy, supra, 518-519. 
Exhaustion first developed in cases brought by persons in state custody 
prior to any judgment. Ex parte Royall, 117 U.S. 241 (1886); Urquhart v. 
Brown, 205 U.S. 179 (1907).
        \247\Brown v. Allen, 344 U.S. 443, 447-450 (1953); id., 502 
(Justice Frankfurter concurring); Castille v. Peoples, 489 U.S. 346, 350 
        \248\Fay v. Noia, 372 U.S. 391, 435 (1963), overruling Darr v. 
Burford, 339 U.S. 200 (1950).
        \249\28 U.S.C. Sec. 2244(c). But an affirmance of a conviction 
by an equally divided Court is not an adjudication on the merits. Neil 
v. Biggers, 409 U.S. 188 (1972).


[[Page 641]]

        A federal prisoner in a Sec. 2255 proceeding will file his 
motion in the court which sentenced him;\250\ a state prisoner in a 
federal habeas action may file either in the district of the court in 
which he was sentenced or in the district in which he is in 

        \250\28 U.S.C. Sec. 2255.
        \251\28 U.S.C. Sec. 2241(d). Cf. Braden v. 30th Judicial Circuit 
Court, 410 U.S. 484 (1973), overruling Ahrens v. Clark, 335 U.S. 188 
(1948), and holding a petitioner may file in the district in which his 
custodian is located although the prisoner may be located elsewhere.

        Habeas corpus is not a substitute for an appeal.\252\ It is not 
a method to test ordinary procedural errors at trial or violations of 
state law but only to challenge alleged errors which if established 
would go to make the entire detention unlawful under federal law.\253\ 
If after appropriate proceedings, the habeas court finds that on the 
facts discovered and the law applied the prisoner is entitled to relief, 
it must grant it, ordinarily ordering the government to release the 
prisoner unless he is retried within a certain period.\254\

        \252\Glasgow v. Moyer, 225 U.S. 420, 428 (1912); Riddle v. 
Dyche, 262 U.S. 333, 335 (1923); Eagles v. United States ex rel. 
Samuels, 329 U.S. 304, 311 (1946). But compare Brown v. Allen, 344 U.S. 
443, 558-560 (1953) (Justice Frankfurter dissenting in part).
        \253\Estelle v. McGuire, 112 S.Ct. 475 (1991); Lewis v. Jeffers, 
497 U.S. 764, 780 (1990); Pulley v. Harris, 465 U.S. 37, 41-42 (1984)
        \254\28 U.S.C. Sec. 2244(b). See Whiteley v. Warden, 401 U.S. 
560, 569 (1971); Irvin v. Dowd, 366 U.S. 717, 729 (1961).
      Congressional Limitation of the Injunctive Power

        Although the speculations of some publicists and some judicial 
dicta\255\ support the idea of an inherent power of the federal courts 
sitting in equity to issue injunctions independently of statutory 
limitations, neither the course taken by Congress nor the specific 
rulings of the Supreme Court support any such principle. Congress has 
repeatedly exercised its power to limit the use of the injunction in 
federal courts. The first limitation on the equity jurisdiction of the 
federal courts is to be found in Sec. 16 of the Judiciary Act of 1789, 
which provided that no equity suit should be maintained where there was 
a full and adequate remedy at law. Although this

[[Page 642]]
provision did no more than declare a pre-existing rule long applied in 
chancery courts,\256\ it did assert the power of Congress to regulate 
the equity powers of the federal courts. The Act of March 2, 1793,\257\ 
prohibited the issuance of any injunction by any court of the United 
States to stay proceedings in state courts except where such injunctions 
may be authorized by any law relating to bankruptcy proceedings. In 
subsequent statutes, Congress prohibited the issuance of injunctions in 
the federal courts to restrain the collection of taxes,\258\ provided 
for a three-judge court as a prerequisite to the issuance of injunctions 
to restrain the enforcement of state statutes for 
unconstitutionality,\259\ for enjoining federal statutes for 
unconstitutionality,\260\ and for enjoining orders of the Interstate 
Commerce Commission,\261\ limited the power to issue injunctions 
restraining rate orders of state public utility commissions,\262\ and 
the use of injunctions in labor disputes,\263\ and placed a very rigid 
restriction on the power to enjoin orders of the Administrator under the 
Emergency Price Control Act.\264\

        \255\In United States v. Detroit Timber Lumber Co., 200 U.S. 
321, 339 (1906), Justice Brewer, speaking for the Court, approached a 
theory of inherent equity jurisdiction when he declared: ``The 
principles of equity exist independently of and anterior to all 
Congressional legislation, and the statutes are either enunciations of 
those principles or limitations upon their application in particular 
cases.'' It should be emphasized, however, that the Court made no 
suggestion that it could apply pre-existing principles of equity without 
jurisdiction over the subject matter. Indeed, the inference is to the 
contrary. In a dissenting opinion in which Justices McKenna and Van 
Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917). 
Justice Pitney contended that Article III, Sec. 2, ``had the effect of 
adopting equitable remedies in all cases arising under the Constitution 
and laws of the United States where such remedies are appropriate.''
        \256\Boyce's Executors v. Grundy, 3 Pet. (28 U.S.) 210 (1830).
        \257\1 Stat. 333, 28 U.S.C. Sec. 2283.
        \258\26 U.S.C. Sec. 7421(a).
        \259\This provision was repealed in 1976, save for apportionment 
and districting suits and when otherwise required by an Act of Congress. 
P. L. 94-381, Sec. 1, 90 Stat. 1119, and Sec. 3, id., 28 U.S.C. 
Sec. 2284. Congress occasionally provides for such courts, as in the 
Voting Rights Act. 42 U.S.C. Sec. Sec. 1971, 1973c.
        \260\Repealed by P. L. 94-381, Sec. 2, 90 Stat. 1119. Congress 
occasionally provides for such courts now, in order to expedite Supreme 
Court consideration of constitutional challenges to critical federal 
laws. See Bowsher v. Synar, 478 U.S. 714, 719-721 (1986) (3-judge court 
and direct appeal to Supreme Court in the Balanced Budget and Emergency 
Deficit Control Act of 1985).
        \261\Repealed by P. L. 93-584, Sec. 7, 88 Stat. 1918.
        \262\28 U.S.C. Sec. 1342.
        \263\29 U.S.C. Sec. Sec. 52, 101-110.
        \264\56 Stat. 31, 204 (1942).

        All of these restrictions have been sustained by the Supreme 
Court as constitutional and applied with varying degrees of 
thoroughness. The Court has made exceptions to the application of the 
prohibition against the stay of proceedings in state courts,\265\ but it 
has on the whole adhered to the statute. The exceptions raise no 
constitutional issues, and the tendency has been alternately to contract 
and to expand the scope of the exceptions.\266\

        \265\Freeman v. Howe, 24 How. (65 U.S.) 450 (1861); Gaines v. 
Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).
        \266\Infra, pp.801-802.

        In Duplex Printing Press v. Deering,\267\ the Supreme Court 
placed a narrow construction upon the labor provisions of the Clayton 
Act and thereby contributed in part to the more extensive restriction by 
Congress on the use of injunctions in labor disputes in

[[Page 643]]
the Norris-LaGuardia Act of 1932, which has not only been declared 
constitutional\268\ but has been applied liberally\269\ and in such a 
manner as to repudiate the notion of an inherent power to issue 
injunctions contrary to statutory provisions.

        \267\254 U.S. 443 (1921).
        \268\Lauf v. E. G. Shinner & Co., 303 U.S. 323 (1938); New Negro 
Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).
        \269\Ibid.; see also Drivers' Union v. Valley Co., 311 U.S. 91. 
100-103 (1940), and compare Sinclair Refining Co. v. Atkinson, 370 U.S. 
195 (1962), with Boys Markets v. Retail Clerks Union, 398 U.S. 235 

        Injunctions Under the Emergency Price Control Act of 1942.--
Lockerty v. Phillips\270\ justifies the same conclusion. Here the 
validity of the special appeals procedure of the Emergency Price Control 
Act of 1942 was sustained. This act provided for a special Emergency 
Court of Appeals, which, subject to review by the Supreme Court, was 
given exclusive jurisdiction to determine the validity of regulations, 
orders, and price schedules issued by the Office of Price 
Administration. The Emergency Court and the Emergency Court alone was 
permitted to enjoin regulations or orders of OPA, and even it could 
enjoin such orders only after finding that the order was not in 
accordance with law or was arbitrary or capricious. The Emergency Court 
was expressly denied power to issue temporary restraining orders or 
interlocutory decrees, and in addition the effectiveness of any 
permanent injunction it might issue was to be postponed for thirty days. 
If review was sought in the Supreme Court by certiorari, effectiveness 
was to be postponed until final disposition. A unanimous Court, speaking 
through Chief Justice Stone, declared that there ``is nothing in the 
Constitution which requires Congress to confer equity jurisdiction on 
any particular inferior federal court.'' All federal courts, other than 
the Supreme Court, it was asserted, derive their jurisdiction solely 
from the exercise of the authority to ordain and establish inferior 
courts conferred on Congress by Article III, Sec. 1, of the 
Constitution. This power, which Congress is left free to exercise or 
not, was held to include the power ``of investing them with jurisdiction 
either limited, concurrent, or exclusive, and of withholding 
jurisdiction from them in the exact degrees and character which to 
Congress may seem proper for the public good.''\271\ Although the Court 
avoided passing upon the constitutionality of the prohibition against 
interlocutory decrees, the language of the Court was otherwise broad 
enough to support it, as was the language of Yakus v. United

[[Page 644]]
States,\272\ which sustained a different phase of the special procedure 
for appeals under the Emergency Price Control Act.

        \270\319 U.S. 182 (1943).
        \271\Id., 187 (quoting Cary v. Curtis, 3 How. (44 U.S.) 236, 245 
(1845)). See South Carolina v. Katzenback, 383 U.S. 301, 331-332 (1966), 
upholding a provision of the Voting Rights Act of 1965 that made the 
district court for the District of Columbia the only avenue of relief 
for States seeking to remove the coverage of the Act.
        \272\321 U.S. 414 (1944). But compare Adamo Wrecking Co. v. 
United States, 434 U.S. 275 (1978) (construing statute in way to avoid 
the constitutional issue raised in Yakus). In United States v. Mendoza-
Lopez, 481 U.S. 828 (1987), the Court held that, when judicial review of 
a deportation order had been precluded, due process required that the 
alien be allowed to make a collateral challenge to the use of that 
proceeding as an element of a subsequent criminal proceeding.
      The Rule-Making Power and Powers Over Process

        Among the incidental powers of courts is that of making all 
necessary rules governing their process and practice and for the orderly 
conduct of their business.\273\ However, this power too is derived from 
the statutes and cannot go beyond them. The landmark case is Wayman v. 
Southard,\274\ which sustained the validity of the Process Acts of 1789 
and 1792 as a valid exercise of authority under the necessary and proper 
clause. Although Chief Justice Marshall regarded the rule-making power 
as essentially legislative in nature, he ruled that Congress could 
delegate to the courts the power to vary minor regulations in the 
outlines marked out by the statute. Fifty-seven years later, in Fink v. 
O'Neil,\275\ in which the United States sought to enforce by summary 
process the payment of a debt, the Supreme Court ruled that under the 
process acts the law of Wisconsin was the law of the United States, and 
hence the Government was required to bring a suit, obtain a judgment, 
and cause execution to issue. Justice Matthews for a unanimous Court 
declared that the courts have ``no inherent authority to take any one of 
these steps, except as it may have been conferred by the legislative 
department; for they can exercise no jurisdiction, except as the law 
confers and limits it.''\276\ Conceding, in 1934, the limited competence 
of legislative bodies to establish a comprehensive system of court 
procedure, and acknowledging the inherent power of courts to regulate 
the conduct of their business, Congress authorized the Supreme Court to 
prescribe rules for the lower federal courts not inconsistent with the 
Constitution and statutes.\277\ Their

[[Page 645]]
operation being restricted, in conformity with the proviso attached to 
the congressional authorization, to matters of pleading and practice, 
the Federal Rules of Civil Procedure thus judicially promulgated neither 
affect the substantive rights of litigants\278\ nor alter the 
jurisdiction\279\ of federal courts and the venue of actions 
therein\280\ and, thus circumscribed, have been upheld as valid.

        \273\Washington-Southern Co. v. Baltimore Co., 263 U.S. 629 
        \274\10 Wheat. (23 U.S.) 1 (1825).
        \275\106 U.S. 272, 280 (1882).
        \276\See Miner v. Atlass, 363 U.S. 641 (1960), holding that a 
federal district court, sitting in admiralty, has no inherent power, 
independent of any statute or the Supreme Court's Admiralty Rules, to 
order the taking of deposition for the purpose of discovery. See also 
Harris v. Nelson. 394 U.S. 286 (1969), in which the Court found 
statutory authority in the ``All Writs Statute'' for a habeas corpus 
court to propound interrogatories.
        \277\In the Act of June 19, 1934, 48 Stat. 1064, and contained 
in 28 U.S.C. Sec. 2072, Congress, in authorizing promulgation of rules 
of civil procedure, reserved the power to examine and override or amend 
rules proposed pursuant to the act which it found to be contrary to its 
legislative policy. See Sibbach v. Wilson, 312 U.S. 1, 14-16 (1941). 
Congress also has authorized promulgation of rules of criminal 
procedure, habeas, evidence, admiralty, bankruptcy, and appellate 
procedure. Congress in the 1970s disagreed with the direction of 
proposed rules of evidence and of habeas practice, and, first postponing 
their effectiveness, enacted revised rules. P.L. 93-505, 88 Stat. 1926 
(1974); P.L. 94-426, 90 Stat. 1334 (1976).
        \278\However, the abolition of old rights and the creation of 
new ones in the course of litigation conducted in conformance with these 
judicially prescribed federal rules has been sustained as against the 
contention of a violation of substantive rights. Sibbach v. Wilson, 312 
U.S. 1, 14 (1941).
        \279\Cf. United States v. Sherwood, 312 U.S. 584, 589-590 
        \280\Mississippi Pub. Corp. v. Murphree, 326 U.S. 438 (1946).

        Limitations to This Power.--The principal function of court 
rules is that of regulating the practice of courts as regards forms, the 
operation and effect of process, and the mode and time of proceedings. 
However, rules are sometimes employed to state in convenient form 
principles of substantive law previously established by statutes or 
decisions. But no such rule ``can enlarge or restrict jurisdiction. Nor 
can a rule abrogate or modify the substantive law.'' This rule is 
applicable equally to courts of law, equity, and admiralty, to rules 
prescribed by the Supreme Court for the guidance of lower courts, and to 
rules ``which lower courts make for their own guidance under authority 
conferred.''\281\ As incident to the judicial power, courts of the 
United States possess inherent authority to supervise the conduct of 
their officers, parties, witnesses, counsel, and jurors by self-
preserving rules for the protection of the rights of litigants and the 
orderly administration of justice.\282\

        \281\Washington-Southern Nav. Co. v. Baltimore & P.S.B.C. Co., 
263 U.S. 629, 635, 636 (1924). It is not for the Supreme Court to 
prescribe how the discretion vested in a Court of Appeals should be 
exercised. As long as the latter court keeps within the bounds of 
judicial discretion, its action is not reviewable. In re Burwell, 350 
U.S. 521 (1956).
        \282\McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. 
Thompson, 2 How. (43 U.S.) 244, 257 (1844). See Thomas v. Arn, 474 U.S. 
140 (1985) (court of appeal rule conditioning appeal on having filed 
with the district court timely objections to a master's report). In Rea 
v. United States, 350 U.S. 214, 218 (1956), the Court, citing McNabb v. 
United States, 318 U.S. 332 (1943), asserted that this supervisory power 
extends to policing the requirements of the Court's rules with respect 
to the law enforcement practices of federal agents. But compare United 
States v. Payner, 447 U.S. 727 (1980).

        The courts of the United States possess inherent equitable 
powers over their process to prevent abuse, oppression, and injustice, 
and to protect their jurisdiction and officers in the protection

[[Page 646]]
of property in the custody of law.\283\ Such powers are said to be 
essential to and inherent in the organization of courts of justice.\284\ 
The courts of the United States also possess inherent power to amend 
their records, correct the errors of the clerk or other court officers, 
and to rectify defects or omissions in their records even after the 
lapse of a term, subject, however, to the qualification that the power 
to amend records conveys no power to create a record or re-create one of 
which no evidence exists.\285\

        \283\Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 
111 U.S. 176 (1884); Buck v. Colbath, 3 Wall. (70 U.S.) 334 (1866).
        \284\Eberly v. Moore, 24 How. (65 U.S.) 147 (1861); Arkadelphia 
Co. v. St. Louis S.W. Ry. Co., 249 U.S. 134 (1919).
        \285\Gagnon v. United States, 193 U.S. 451, 458 (1904).
      Appointment of Referees, Masters, and Special Aids

        The administration of insolvent enterprises, investigations into 
the reasonableness of public utility rates, and the performance of other 
judicial functions often require the special services of masters in 
chancery, referees, auditors, and other special aids. The practice of 
referring pending actions to a referee was held in Heckers v. 
Fowler\286\ to be coequal with the organization of the federal courts. 
In the leading case of Ex parte Peterson,\287\ a United States district 
court appointed an auditor with power to compel the attendance of 
witnesses and the production of testimony. The court authorized him to 
conduct a preliminary investigation of facts and file a report thereon 
for the purpose of simplifying the issues for the jury. This action was 
neither authorized nor prohibited by statute. In sustaining the action 
of the district judge, Justice Brandeis, speaking for the Court, 
declared: ``Courts have (at least in the absence of legislation to the 
contrary) inherent power to provide themselves with appropriate 
instruments required for the performance of their duties. . . . This 
power includes authority to appoint persons unconnected with the court 
to aid judges in the performance of specific judicial duties, as they 
may arise in the progress of a cause.''\288\ The power to appoint 
auditors by federal courts sitting in equity has been exercised from 
their very beginning, and here it was held that this power is the same 
whether the court sits in law or equity.

        \286\2 Wall. (69 U.S.) 123, 128-129 (1864).
        \287\253 U.S. 300 (1920).
        \288\Id., 312.
      Power to Admit and Disbar Attorneys

        Subject to general statutory qualifications for attorneys, the 
power of the federal courts to admit and disbar attorneys rests on the 
common law from which it was originally derived. According to Chief 
Justice Taney, it was well settled by the common law that

[[Page 647]]
``it rests exclusively with the Court to determine who is qualified to 
become one of its officers, as an attorney and counsellor, and for what 
cause he ought to be removed.'' Such power, he made clear, however, ``is 
not an arbitrary and despotic one, to be exercised at the pleasure of 
the Court, or from passion, prejudice, or personal hostility; but it is 
the duty of the Court to exercise and regulate it by a sound and just 
judicial discretion, whereby the rights and independence of the bar may 
be as scrupulously guarded and maintained by the Court, as the right and 
dignity of the Court itself.''\289\ The Test-Oath Act of July 2, 1862, 
which purported to exclude former Confederates from the practice of law 
in the federal courts, was invalidated in Ex parte Garland.\290\ In the 
course of his opinion for the Court, Justice Field discussed generally 
the power to admit and disbar attorneys. The exercise of such a power, 
he declared, is judicial power. The attorney is an officer of the court, 
and though Congress may prescribe qualifications for the practice of law 
in the federal courts, it may not do so in such a way as to inflict 
punishment contrary to the Constitution or to deprive a pardon of the 
President of its legal effect.\291\

        \289\Ex parte Secombe, 19 How. (60 U.S.) 9, 13 (1857). In 
Frazier v. Heebe, 482 U.S. 641 (1987), the Court exercised its 
supervisory power to invalidate a district court rule respecting the 
admission of attorneys. See In re Sawyer, 360 U.S. 622 (1959), with 
reference to the extent to which counsel of record during a pending case 
may attribute error to the judiciary without being subject to 
professional discipline.
        \290\4 Wall. (71 U.S.) 333 (1867).
        \291\Id., 378-380. Although a lawyer is admitted to practice in 
a federal court by way of admission to practice in a state court, he is 
not automatically sent out of the federal court by the same route, when 
``principles of right and justice'' require otherwise. A determination 
of a state court that an accused practitioner should be disbarred is not 
conclusively binding on the federal courts. Theard v. United States, 354 
U.S. 278 (1957), citing Selling v. Radford, 243 U.S. 46 (1917). Cf. In 
re Isserman, 345 U.S. 286, 288 (1953), where it was acknowledged that 
upon disbarment by a state court, Rule 2, par. 5 of the Rules of the 
Supreme Court imposes upon the attorney the burden of showing cause why 
he should not be disbarred in the latter, and upon his failure to meet 
that burden, the Supreme Court will ``follow the finding of the state 
that the character requisite for membership in the bar is lacking.'' In 
348 U.S. 1 (1954), Isserman's disbarment was set aside for reason of 
noncompliance with Rule 8 requiring concurrence of a majority of the 
Justices participating in order to sustain a disbarment. See also In re 
Disbarment of Crow, 359 U.S. 1007 (1959). For an extensive treatment of 
disbarment and American and English precedents thereon, see Ex parte 
Wall, 107 U.S. 265 (1883).


                               ARTICLE III

                           JUDICIAL DEPARTMENT

               Section 2. Judicial Power and Jurisdiction

  Section 2. 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

[[Page 648]]
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 Land under Grants 
of different States, and between a State, or the Citizens thereof, and 
foreign States, Citizens or Subjects.


        Late in the Convention, a delegate proposed to extend the 
judicial power to cases arising under the Constitution of the United 
States as well as under its laws and treaties. Madison's notes continue: 
``Mr. Madison doubted whether it was not going too far to extend the 
jurisdiction of the Court generally to cases arising under the 
Constitution, and whether it ought not to be limited to cases of a 
Judiciary Nature. The right of expounding the Constitution in cases not 
of this nature ought not to be given to that Department.

        ``The motion of Docr. Johnson was agreed to nem : con : it being 
generally supposed that the jurisdiction given was constructively 
limited to cases of a Judiciary nature--''.\292\

        \292\2 M. Farrand, op. cit., n. 1, 430.

        That the Framers did not intend for federal judges to roam at 
large in construing the Constitution and laws of the United States but 
rather preferred and provided for resolution of disputes arising in a 
``judicial'' manner is revealed not only in the language of Sec. 2 and 
the passage quoted above but as well in the refusal to associate the 
judges in the extra-judicial functions which some members of the 
Convention--Madison and Wilson notably--conceived for them. Thus, four 
times proposals for associating the judges in a council of revision to 
pass on laws generally were voted down,\293\ and similar fates befell 
suggestions that the Chief Justice be a member of a privy council to 
assist the President\294\ and that the President or either House of 
Congress be able to request advisory opinions of the Supreme Court.\295\

        \293\The proposal was contained in the Virginia Plan. 1 id., 21. 
For the four rejections, see id., 97-104, 108-110, 138-140, 2 id., 73-
80, 298.
        \294\Id., 328-329, 342-344. Although a truncated version of the 
proposal was reported by the Committee of Detail, id., 367, the 
Convention never took it up.
        \295\Id., 340-341. The proposal was referred to the Committee of 
Detail and never heard of again.


[[Page 649]]

        This intent of the Framers was early effectuated when the 
Justices declined a request of President Washington to tender him advice 
respecting legal issues growing out of United States neutrality between 
England and France in 1793.\296\ Moreover, the refusal of the Justices 
to participate in the congressional plan for awarding veterans' 
pensions\297\ bespoke a similar adherence to the restricted role of 
courts. These restrictions have been encapsuled in a series of 
principles or doctrines, the application of which determines whether an 
issue is meet for judicial resolution and whether the parties raising it 
are entitled to have it judicially resolved. Constitutional restrictions 
are intertwined with prudential considerations in the expression of 
these principles and doctrines, and it is seldom easy to separate out 
the two strands.\298\

        \296\1 C. Warren, op. cit., n. 18, 108-111; 3 Correspondence and 
Public Papers of John Jay, H. Johnston ed. (New York: 1893), 633-635; 
Hart & Wechsler, op. cit., n.250, 65-67.
        \297\Hayburn's Case, 2 Dall. (2 U.S.) 409 (1792), discussed 
supra, pp.620-621.
        \298\See, e.g., Justice Brandeis dissenting in Ashwander v. TVA, 
297 U.S. 288, 341, 345-348 (1936). Cf. Flast v. Cohen, 392 U.S. 83, 97 
(1968); Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 (1947).
      The Two Classes of Cases and Controversies

        By the terms of the foregoing section, the judicial power 
extends to nine classes of cases and controversies, which fall into two 
general groups. In the words of Chief Justice Marshall in Cohens v. 
Virginia:\299\ ``In the first, jurisdiction depends on the character of 
the cause, whoever may be the parties. This class comprehends `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.' This cause extends the jurisdiction of the Court to all the 
cases described, without making in its terms any exception whatever, and 
without any regard to the condition of the party. If there be any 
exception, it is to be implied, against the express words of the 
article. In the second class, the jurisdiction depends entirely on the 
character of the parties. In this are comprehended controversies between 
two or more States, between a State and citizens of another State,' and 
`between a State and foreign States, citizens or subjects.' If these be 
the parties, it is entirely unimportant, what may be the subject of 
controversy. Be it what it may, these parties have a constitutional 
right to come into the courts of the Union.''\300\

        \299\6 Wheat. (19 U.S.) 264 (1821).
        \300\Id., 378.

        Judicial power is ``the power of a court to decide and pronounce 
a judgment and carry it into effect between persons and parties

[[Page 650]]
who bring a case before it for decision.''\301\ The meaning attached to 
the terms ``cases'' and ``controversies''\302\ determines therefore the 
extent of the judicial power as well as the capacity of the federal 
courts to receive jurisdiction. According to Chief Justice Marshall, 
judicial power is capable of acting only when the subject is submitted 
in a case and a case arises only when a party asserts his rights ``in a 
form prescribed by law.''\303\ ``By cases and controversies are intended 
the claims of litigants brought before the courts for determination by 
such regular proceedings as are established by law or custom for the 
protection or enforcement of rights, or the prevention, redress, or 
punishment of wrongs. Whenever the claim of a party under the 
Constitution, laws, or treaties of the United States takes such a form 
that the judicial power is capable of acting upon it, then it has become 
a case. The term implies the existence of present or possible adverse 
parties whose contentions are submitted to the Court for 

        \301\Muskrat v. United States, 219 U.S. 346, 356 (1911).
        \302\The two terms may be used interchangeably, inasmuch as a 
``controversy,'' if distinguishable from a ``case'' at all, is so only 
because it is a less comprehensive word and includes only suits of a 
civil nature. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
        \303\Osborn v. United States Bank, 9 Wheat. (22 U.S.) 738, 819 
        \304\In re Pacific Ry. Comm., 32 F. 241, 255 (C.C. Calif. 1887) 
(Justice Field). See also Smith v. Adams, 130 U.S. 167, 173-174 (1889).

        Chief Justice Hughes once essayed a definition, which, however, 
presents a substantial problem of labels. ``A `controversy' in this 
sense must be one that is appropriate for judicial determination. A 
justiciable controversy is thus distinguished from a difference or 
dispute of a hypothetical character; from one that is academic or moot. 
The controversy must be definite and concrete, touching the legal 
relations of parties having adverse legal interests. It must be a real 
and substantial controversy admitting of specific relief through a 
decree of a conclusive character, as distinguished from an opinion 
advising what the law would be upon a hypothetical state of 
facts.''\305\ Of the ``case'' and ``controversy'' requirement, Chief 
Justice Warren admitted that ``those two words have an iceberg quality, 
containing beneath their surface simplicity submerged complexities which 
go to the very heart of our constitutional form of government. Embodied 
in the words `cases' and `controversies' are two complementary but 
somewhat different limitations. In part those words limit the business 
of federal courts to questions presented in an adversary context and in 
a form historically viewed as capable of resolution through the judicial 
process. And in part those words define the role assigned to the 

[[Page 651]]
in a tripartite allocation of power to assure that the federal courts 
will not intrude into areas committed to the other branches of 
government. Justiciability is the term of art employed to give 
expression to this dual limitation placed upon federal courts by the 
case and controversy doctrine.''\306\ Justice Frankfurter perhaps best 
captured the flavor of the ``case'' and ``controversy'' requirement by 
noting that it takes the ``expert feel of lawyers'' often to note 

        \305\Aetna Life Ins. Co. v. Haworth, 300 U.S. 229, 240-241 
(1937). Cf. Public Service Comm. v. Wycoff Co., 344 U.S. 237, 242 
        \306\Flast v. Cohen, 392 U.S. 83, 94-95 (1968).
        \307\``The jurisdiction of the federal courts can be invoked 
only under circumstances which to the expert feel of lawyers constitute 
a `case or controversy.''' Joint Anti-Fascist Refugee Committee v. 
McGrath, 341 U.S. 123, 149, 150 (1951).

        From these quotations may be isolated several factors which, in 
one degree or another, go to make up a ``case'' and ``controversy.''

      Adverse Litigants

        The presence of adverse litigants with real interests to contend 
for is a standard which has been stressed in numerous cases,\308\ and 
the requirement implicates a number of complementary factors making up a 
justiciable suit. A concrete example of the requirement being one of the 
decisive factors, if not the decisive one, is Muskrat v. United 
States,\309\ a case not now deemed of great importance, in which the 
Court struck down a statute authorizing certain named Indians to bring a 
test suit against the United States to determine the validity of a law 
affecting the allocation of Indian lands. Attorneys' fees of both sides 
were to be paid out of tribal funds deposited in the United States 
Treasury. ``The judicial power,'' said the Court,``. . . is the right to 
determine actual controversies arising between adverse litigants, duly 
instituted in courts of proper jurisdiction. . . . It is true the United 
States is made a defendant to this action, but it has no interest 
adverse to the claimants. The object is not to assert a property right 
as against the government, or to demand compensation for alleged wrongs 
because of action upon its part. The whole purpose of the law is to 
determine the constitutional validity of this class of legislation, in a 
suit not arising between parties concerning a property right necessarily 
involved in the decision in question, but in a proceeding against the 
government in its sovereign capacity, and con

[[Page 652]]
cerning which the only judgment required is to settle the doubtful 
character of the legislation in question.''\310\

        \308\Lord v. Veazie, 8 How. (49 U.S.) 251 (1850); Chicago & G.T. 
Ry. Co. v. Wellman, 143 U.S. 339 (1892); South Spring Hill Gold Mining 
Co. v. Amador Medean Gold Mining Co., 145 U.S. 300 (1892); California v. 
San Pablo & T.R.R., 149 U.S. 308 (1893); Tregea v. Modesto Irrigation 
District, 164 U.S. 179 (1896); Lampasas v. Bell, 180 U.S. 276 (1901); 
Smith v. Indiana, 191 U.S. 138 (1903); Braxton County Court v. West 
Virginia, 208 U.S. 192 (1908); Muskrat v. United States, 219 U.S. 346 
(1911); United States v. Johnson, 319 U.S. 302 (1943); Moore v. 
Charlotte-Mecklenburg Board of Education, 402 U.S. 47 (1971).
        \309\219 U.S. 346 (1911).
        \310\Id., 361-362. The Indians obtained the sought-after 
decision the following year by the simple expedient of suing to enjoin 
the Secretary of the Interior from enforcing the disputed statute. 
Gritts v. Fisher, 224 U.S. 640 (1912). Other cases have involved similar 
problems, but they resulted in decisions on the merits. E.g., Cherokee 
Intermarriage Cases, 203 U.S. 76 (1906); La Abra Silver Mining Co. v. 
United States, 175 U.S. 423, 455-463 (1899); South Carolina v. 
Katzenbach, 383 U.S. 301, 335 (1966); but see id., 357 (Justice Black 
dissenting). The principal effect of Muskrat was to put in doubt for 
several years the validity of any sort of declaratory judgment provision 
in federal law.

        Collusive and Feigned Suits.--Prime among the cases in which 
adverse litigants are required are those suits in which two parties have 
gotten together to bring a friendly suit to settle a question of 
interest to them. Thus, in Lord v. Veazie,\311\ the latter had executed 
a deed to the former warranting that he had certain rights claimed by a 
third person and suit was instituted to decide the ``dispute.'' 
Declaring that ``the whole proceeding was in contempt of the court, and 
highly reprehensible,'' the Court observed: ``The contract set out in 
the pleadings was made for the purpose of instituting this suit. . . . 
The plaintiff and defendant are attempting to procure the opinion of 
this court upon a question of law, in the decision of which they have a 
common interest opposed to that of other persons, who are not parties to 
the suit. . . . And their conduct is the more objectionable, because 
they have brought up the question upon a statement of facts agreed upon 
between themselves . . . and upon a judgment pro forma entered by their 
mutual consent, without any actual judicial decision. . . .''\312\ 
``Whenever,'' said the Court in another case, ``in pursuance of an 
honest and actual antagonistic assertion of rights by one individual 
against another, there is presented a question involving the validity of 
any act of any legislature, State or federal, and the decision 
necessarily rests on the competency of the legislature to so enact, the 
court must . . . determine whether the act be constitutional or not; but 
such an exercise of power is the ultimate and supreme function of 
courts. It is legitimate only in the last resort, and as a necessity in 
the determination of real, earnest and vital controversy between 
individuals. It never was the thought that, by means of a friendly suit, 
a party beaten in the legislature could transfer to the courts an 
inquiry as to the constitutionality of the legislative act.''\313\ Yet, 
several widely known constitutional decisions have been rendered in 
cases in which friendly parties contrived to have the actions brought 
and in which the suits were su

[[Page 653]]
pervised and financed by one side.\314\ And there are instances in which 
there may not be in fact an adverse party at certain stages, that is, 
some instances when the parties do not actually disagree, but in which 
the Court and the lower courts are empowered to adjudicate.\315\

        \311\8 How. (49 U.S.) 251 (1850).
        \312\Id., 254-255.
        \313\Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345 
        \314\E.g., Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796); 
Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); Scott v. Sandford, 19 How. 
(60 U.S.) 393 (1857); Cf. 1 C. Warren, op. cit., n. 18, 147, 392-395; 2 
id., 279-282. In Powell v. Texas, 392 U.S. 514 (1968), the Court 
adjudicated on the merits a challenge to the constitutionality of 
criminal treatment of chronic alcoholics although the findings of the 
trial court, agreed to by the parties, appeared rather to be ``the 
premises of a syllogism transparently designed to bring this case' 
within the confines of an earlier enunciated constitutional principle. 
But adversity arguably still existed.
        \315\Examples are naturalization cases, Tutun v. United States, 
270 U.S. 568 (1926), entry of judgment by default or on a plea of 
guilty, In re Metropolitan Ry. Receivership, 208 U.S. 90 (1908), and 
consideration by the Court of cases in which the Solicitor General 
confesses error below. Cf. Young v. United States, 315 U.S. 257, 258-259 
(1942); Casey v. United States, 343 U.S. 808 (1952); Rosengart v. Laird, 
404 U.S. 908 (1972) (Justice White dissenting). See also Sibron v. New 
York, 392 U.S. 40, 58-59 (1968).

        Stockholder Suits.--Moreover, adversity in parties has often 
been found in suits by stockholders against their corporation in which 
the constitutionality of a statute or a government action is drawn in 
question, even though one may suspect that the interests of plaintiffs 
and defendant are not all that dissimilar. Thus, in Pollock v. Farmers' 
Loan and Trust Co.,\316\ the Court sustained the jurisdiction of a 
district court which had enjoined the company from paying an income tax 
even though the suit was brought by a stockholder against the company, 
thereby circumventing a statute which forbade the maintenance in any 
court of a suit to restrain the collection of any tax.\317\ 
Subsequently, the Court sustained jurisdiction in cases brought by a 
stockholder to restrain a company from investing its funds in farm loan 
bonds issued by federal land banks\318\ and by preferred stockholders 
against a utility company and the TVA to enjoin the performance of 
contracts between the company and TVA on the ground that the statute 
creating it was unconstitutional.\319\ Perhaps most notorious was Carter 
v. Carter Coal Co.,\320\ in which the president of the company brought 
suit against the company and its officials, among whom was Carter's fa

[[Page 654]]
ther, a vice president of the company, and in which the Court 
entertained the suit and decided the case on the merits.\321\

        \316\157 U.S. 429 (1895). The first injunction suit by a 
stockholder to restrain a corporation from paying a tax was apparently 
Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856). See also Brushaber v. 
Union Pacific R. Co., 240 U.S. 1 (1916).
        \317\Cf. Cheatham v. United States, 92 U.S. 85 (1875); Snyder v. 
Marks, 109 U.S. 189 (1883).
        \318\Smith v. Kansas City Title Co., 255 U.S. 180 (1921).
        \319\Ashwander v. TVA, 297 U.S. 288 (1936). See id., 341 
(Justice Brandeis dissenting in part).
        \320\298 U.S. 238 (1936).
        \321\Stern, The Commerce Clause and the National Economy, 59 
Harv. L. Rev. 645, 667-668 (1948) (detailing the framing of the suit).
      Substantial Interest: Standing

        Perhaps the most important element of the requirement of adverse 
parties may be found in the ``complexities and vagaries'' of the 
standing doctrine. ``The fundamental aspect of standing is that it 
focuses on the party seeking to get his complaint before a federal court 
and not on the issues he wishes to have adjudicated.''\322\ The ``gist 
of the question of standing'' is whether the party seeking relief has 
``alleged such a personal stake in the outcome of the controversy as to 
assure that concrete adverseness which sharpens the presentation of 
issues upon which the court so largely depends for illumination of 
difficult constitutional questions.''\323\ This practical conception of 
standing has now given way to a primary emphasis upon separation of 
powers as the guide. ``[T]he `case or controversy' requirement defines 
with respect to the Judicial Branch the idea of separation of powers on 
which the Federal Government is founded. The several doctrines that have 
grown up to elaborate that requirement are `founded in concern about the 
proper - and properly limited - role of the courts in a democratic 

        \322\Flast v. Cohen, 392 U.S. 83, 99 (1968). That this 
characterization is not the view of the present Court, see Allen v. 
Wright, 468 U.S. 737, 750, 752, 755-756, 759-761 (1984). In taxpayer 
suits, it is appropriate to look to the substantive issues to determine 
whether there is a logical nexus between the status asserted and the 
claim sought to be adjudicated. Id., 102; United States v. Richardson, 
418 U.S. 166, 174-175 (1974); Duke Power Co. v. Carolina Environmental 
Study Group, 438 U.S. 59, 78-79 (1978).
        \323\Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or 
organizations have a personal, ideological interest sufficiently strong 
to create adverseness is not alone enough to confer standing; rather, 
the adverseness is the consequence of one being able to satisfy the 
Article III requisite of injury in fact. Valley Forge Christian College 
v. Americans United, 454 U.S. 464, 482-486 (1982); Schlesinger v. 
Reservists Com. to Stop the War, 418 U.S. 208, 225-226 (1974). Nor is 
the fact that if plaintiffs have no standing to sue, no one would have 
standing, a sufficient basis for finding standing. Id., 227.
        \324\Allen v. Wright,468 U.S. 737, 750 (1984) (quoting Warth v. 
Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether 
a plaintiff is entitled to adjudication of his claims must be evaluated 
``by reference to the Art. III notion that federal courts may exercise 
power only in the last resort, and as a necessity,' . . . and only when 
adjudication is `consistent with a system of separated powers and [the 
dispute is one] traditionally thought to be capable of resolution 
through the judicial process.''' Id., 752 (quoting, respectively, 
Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892), and 
Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the 
separation-of-powers barrier to standing, see Lujan v. Defenders of 
Wildlife, 112 S.Ct. 2130, 2135-2136, 2142-2146 (1992).

        Standing as a doctrine is composed of both constitutional and 
prudential restraints on the power of the federal courts to render

[[Page 655]]
decisions,\325\ and is almost exclusively concerned with such public law 
questions as determinations of constitutionality and review of 
administrative or other governmental action.\326\ As such, it is often 
interpreted according to the prevailing philosophies of judicial 
activism and restraint and narrowly or broadly in terms of the viewed 
desirability of access to the courts by persons seeking to challenge 
legislation or other governmental action. The trend in the 1960s was to 
broaden access; in the 1970s, 1980s, and 1990s, it was to stiffen the 
requirements of standing, although Court majorities were not entirely 
consistent. The major difficulty in setting forth the standards is that 
the Court's generalizations and the results it achieves are often at 

        \325\E.g., Valley Forge Christian College v. Americans United, 
454 U.S. 464, 471-476 (1982); Allen v. Wright, 468 U.S. 737, 750-751 
        \326\C. Wright, Handbook of the Law of Federal Courts (St. Paul: 
4th ed. 1983), 60.
        \327\``[T]he concept of `Art. III standing' has not been defined 
with complete consistency in all of the various cases decided by this 
Court . . . [and] this very fact is probably proof that the concept 
cannot be reduced to a one-sentence or one-paragraph definition.'' 
Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 
(1982). ``Generalizations about standing to sue are largely worthless as 
such.'' Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151 
(1970). For extensive consideration of the doctrine, see Hart & 
Wechsler, op. cit., n.250, 107-196.

        The standing rules apply to actions brought in federal courts, 
and they have no direct application to actions brought in state 

        \328\Thus, state courts could adjudicate a case brought by a 
person without standing in the federal sense. If the plaintiff lost, he 
would have no recourse in the United States Supreme Court, inasmuch as 
he lacks standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v. 
Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the 
losing defendant may be able to appeal, because he might well be able to 
assert sufficient injury to his federal interests. ASARCO Inc. v. 
Kadish, 490 U.S. 605 (1989).

        Citizen Suits.--Persons do not have standing to sue to enforce a 
constitutional provision when all they can show or claim is that they 
have an interest or have suffered an injury that is shared by all 
members of the public. Thus, a group of persons suing as citizens to 
litigate a contention that membership of Members of Congress in the 
military reserves constituted a violation of Article I, Sec. 6, cl. 2, 
was denied standing.\329\ ``The only interest all citizens share in the 
claim advanced by respondents is one which presents injury in the 
abstract. . . . [The] claimed nonobservance [of the clause], standing 
alone, would adversely affect only the generalized interest of all 
citizens in constitutional governance.''\330\

        \329\Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 
208 (1974).
        \330\Id., 217. See also United States v. Richardson, 418 U.S. 
166, 176-177 (1974); Valley Forge Christian College v. Americans United, 
454 U.S. 464, 483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); 
Whitmore v. 495 U.S. 149 (1990); Lujan v. Defenders of Wildlife, 112 
S.Ct. 2130, 2143-2145 (1992). Cf. Ex parte Levitt, 302 U.S. 633 (1937); 
Laird v. Tatum, 408 U.S. 1 (1972).


[[Page 656]]

        Taxpayer Suits.--Save for a narrowly cabined exception, standing 
is also lacking when a litigant attempts to sue to contest governmental 
action that he claims injures him as a taxpayer. In Frothingham v. 
Mellon,\331\ the Court denied standing to a taxpayer suing to restrain 
disbursements of federal money to those States that chose to participate 
in a program to reduce maternal and infant mortality; her claim was that 
Congress lacked power to appropriate funds for those purposes and that 
the appropriations would increase her taxes in future years in an 
unconstitutional manner. Noting that a federal taxpayer's ``interest in 
the moneys of the Treasury . . . is comparatively minute and 
indeterminate'' and that ``the effect upon future taxation, of any 
payment out of the funds . . . [is] remote, fluctuating and uncertain,'' 
the Court ruled that plaintiff had failed to allege the type of ``direct 
injury'' necessary to confer standing.\332\

        \331\Usually cited as Massachusetts v. Mellon, 262 U.S. 447 
(1923), the two suits being consolidated.
        \332\Id., 487, 488.

        Taxpayers were found to have standing, however, in Flast v. 
Cohen,\333\ to contest the expenditure of federal moneys to assist 
religious-affiliated organizations. The Court asserted that the answer 
to the question whether taxpayers have standing depends on whether the 
circumstances of each case demonstrate that there is a logical nexus 
between the status asserted and the claim sought to be adjudicated. 
First, there must be a logical link between the status of taxpayer and 
the type of legislative enactment attacked; this means, a taxpayer must 
allege the unconstitutionality only of exercises of congressional power 
under the taxing and spending clause of Article I, Sec. 8, rather than 
also of incidental expenditure of funds in the administration of an 
essentially regulatory statute. Second, there must be a logical nexus 
between the status of taxpayer and the precise nature of the 
constitutional infringement alleged; this means, the taxpayer must show 
the challenged enactment exceeds specific constitutional limitations 
imposed upon the exercise of the congressional taxing and spending 
power, rather than simply to argue the enactment is generally beyond the 
powers delegated to Congress. Both Frothingham and Flast met the first 
test, because they attacked a spending program. Flast met the second 
test, because the establishment clause of the First Amendment operates 
as a specific limitation upon the exercise of the taxing and spending 
power, while Frothingham had alleged only that the Tenth Amendment had 
been exceeded. Reserved was the question

[[Page 657]]
whether other specific limitations constrained the taxing and spending 
clause in the same manner as the establishment clause.\334\

        \333\392 U.S. 83 (1968).
        \334\Id., 105.

        Since Flast, the Court has refused to expand it. Litigants 
seeking standing as taxpayers to challenge legislation permitting the 
CIA to withhold from the public detailed information about its 
expenditures as a violation of Article I, Sec. 9, cl. 7, and to 
challenge certain Members of Congress from holding commissions in the 
reserves as a violation of Article I, Sec. 6, cl. 2, were denied 
standing, in the former cases because their challenge was not to an 
exercise of the taxing and spending power and in the latter because 
their challenge was not to legislation enacted under Article I, Sec. 8, 
but rather was to executive action in permitting Members to maintain 
their reserve status.\335\ An organization promoting church-state 
separation was denied standing to challenge an executive decision to 
donate surplus federal property to a church-related college, both 
because the contest was to executive action under a valid piece of 
legislation and because the property transfer was not pursuant to a 
taxing and spending clause exercise but was taken under the property 
clause of Article IV, Sec. 3, cl. 2.\336\ It seems evident that for at 
least the foreseeable future taxpayer standing will be restricted to 
establishment clause limitations on spending programs.

        \335\United States v. Richardson, 418 U.S. 166 (1974); 
Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 227-228 
        \336\Valley Forge Christian College v. Americans United, 454 
U.S. 464 (1982).

        Local taxpayers attacking local expenditures have generally been 
permitted more leeway than federal taxpayers insofar as standing is 
concerned. Thus, in Everson v. Board of Education,\337\ such a taxpayer 
was found to have standing to challenge the use of public funds for 
transportation of pupils to parochial schools.\338\ But in Doremus v. 
Board of Educ.,\339\ the Court refused an appeal from a state court for 
lack of standing of a taxpayer challenging Bible reading in the 
classroom. No measurable disbursement of public funds was involved in 
this type of activity, so that there was no direct injury to the 
taxpayer, a rationale similar to the spending program-regulatory program 
distinction of Flast.

        \337\330 U.S. 1 (1947).
        \338\See Bradfield v. Roberts, 175 U.S. 291, 295 (1899); 
Crampton v. Zabriskie, 101 U.S. 601 (1880); Heim v. McCall, 239 U.S. 175 
(1915). See also Illinois ex rel. McCollom v. Board of Education, 333 
U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. 
Vitale, 370 U.S. 421 (1962) (plaintiffs suing as parents and taxpayers).
        \339\342 U.S. 429 (1952). Compare Alder v. Board of Education, 
342 U.S. 485 (1952). See also Richardson v. Ramirez, 418 U.S. 24 (1974).


[[Page 658]]

        Constitutional Standards: Injury in Fact, Causation, and 
Redressability.--While the Court has been inconsistent over time, it has 
now settled upon the rule that, ``at an irreducible minimum,'' the 
constitutional requisites under Article III for the existence of 
standing are that the party seeking to sue must personally have suffered 
some actual or threatened injury that can fairly be traced to the 
challenged action of defendant and that the injury is likely to be 
redressed by a favorable decision.\340\

        \340\Valley Forge Christian College v. Americans United, 454 
U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan 
v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). See, however, 
United States Parole Comm. v. Geraghty, 445 U.S. 388 (1980), a class 
action case, in which the majority opinion appears to reduce the 
significance of the personal stake requirement. Id., 404 n. 11, 
reserving full consideration of the dissent's argument at id ., 401 n. 
1, 420-421.

        For some time, injury alone was not sufficient; rather, the 
injury had to be ``a wrong which directly results in the violation of a 
legal right,''\341\ that is, ``one of property, one arising out of 
contract, one protected against tortious invasion, or one founded in a 
statute which confers a privilege.''\342\ The problem was that the 
``legal right'' language was ``demonstrably circular: if the plaintiff 
is given standing to assert his claims, his interest is legally 
protected; if he is denied standing, his interest is not legally 
protected.''\343\ The observable tendency of the Court, however, was to 
find standing frequently in cases distinctly not grounded in property 

        \341\Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. 
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151-152 
(1951) (Justice Frankfurter concurring). But see Frost v. Corporation 
Comm., 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F Ry., 
357 U.S. 77 (1958).
        \342\Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).
        \343\C. Wright, op. cit., n. 326, 65-66.
        \344\E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U.S. 123 (1951) (indirect injury to organization and members by 
governmental maintenance of list of subversive organizations); NAACP v. 
Alabama ex rel Patterson, 357 U.S. 449 (1958) (same); Abington School 
District v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school 
children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 
430-431 (1961) (merchants challenging Sunday closing laws); Baker v. 
Carr 369 U.S. 186, 204-208 (1962) (voting rights).

        In any event, the ``legal rights'' language has now been 
dispensed with. Rejection occurred in two administrative law cases in 
which the Court announced that parties had standing when they suffered 
``injury in fact'' to some interest, ``economic or otherwise,'' that is 
arguably within the zone of interest to be protected or regulated by the 
statute or constitutional provision in question.\345\ Now,

[[Page 659]]
environmental, aesthetic, and social interests, when impaired, afford a 
basis for making constitutional attacks upon governmental action.\346\ 
The breadth of the injury in fact concept may be discerned in a series 
of cases involving the right of private parties to bring actions under 
the Fair Housing Act to challenge alleged discriminatory practices. The 
subjective and intangible interests of persons in enjoying the benefits 
of living in integrated communities were found sufficient to permit them 
to attack actions which threatened or harmed those interests even though 
the actions were not directed at them.\347\ Similarly, the interests of 
individuals and associations of individuals in using the environment 
afforded them the standing to challenge actions which threatened those 
environmental conditions.\348\ Nonetheless, the Court has also in 
constitutional cases been wary of granting standing to persons who 
alleged threats or harm to interests which they shared with the larger 
community of people at large, a rule against airing ``generalized 
grievances'' through the courts,\349\ although it is unclear whether 
this rule (or subrule) has a constitutional or a prudential basis.\350\

[[Page 660]]
And in a number of cases, the Court has refused standing apparently in 
the belief that the assertion of harm is too speculative or too remote 
to credit.\351\

        \345\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 
(1970); Barlow v. Collins, 397 U.S. 159 (1970). The ``zone of interest'' 
test is a prudential rather than constitutional standard. The Court 
sometimes uses language characteristic of the language. Thus, in Lujan 
v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992), the Court refers 
to injury in fact as ``an invasion of a legally-protected interest,'' 
but in context, here and in the cases cited, it is clear the reference 
is to any interest that the Court finds protectable under the 
Constitution, statutes, or regulations.
        \346\E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2137-
2138 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 
(1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 
59, 72-74 (1978); Village of Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S. 
106, 112-113 (1976); Warth v. Seldin, 422 U.S. 490, 498-499 (1975); Shea 
v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 
410 U.S. 614, 617-618 (1973).
        \347\Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 
(1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979); 
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). While Congress had 
provided for standing in the Act, thus removing prudential 
considerations affecting standing, it could not abrogate constitutional 
constraints. Gladstone, Realtors, supra, 100. Thus, the injury alleged 
satisfied Article III.
        \348\Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United 
States v. SCRAP, 412 U.S. 669, 687-688 (1973); Duke Power Co., v. 
Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978). But the 
Court has refused to credit general allegations of injury untied to 
specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 112 
S.Ct. 2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 
(1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan 
v. Defenders of Wildlife, supra, 2139-2140. Moreover, unlike the 
situation in taxpayer suits, there is no requirement of a nexus between 
the injuries claimed and the constitutional rights asserted. In Duke 
Power, supra, 78-81, claimed environmental and health injuries grew out 
of construction and operation of nuclear power plants but were not 
directly related to the governmental action challenged, the limitation 
of liability and indemnification in cases of nuclear accident. See also 
Metropolitan Washington Airports Auth. v. Citizens for the Abatement of 
Aircraft Noise, 501 U.S. 252, 264-265 (1991).
        \349\See supra, nn.329-330.
        \350\Compare Warth v. Seldin, 422 U.S. 490, 499-500 (1975) 
(prudential), with Valley Forge Christian College v. Americans United, 
454 U.S. 464, 485, 490 (1982) (apparently constitutional). In Allen v. 
Wright, 468 U.S. 737, 751 (1984), it is again prudential.
        \351\E.g. Laird v. Tatum, 408 U.S. 1 (1972) (``allegations of a 
subjective `chill' are not an adequate substitute for a claim of 
specific present objective harm or a threat of specific future harm.''). 
See also O'Shea v. Littleton, 414 U.S. 488 (1974); California Bankers 
Assn. v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371-
373 (1976). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the 
Court held that victim of police chokehold seeking injunctive relief was 
unable to show sufficient likelihood of recurrence as to him.

        Of increasing importance are the second and third element of 
standing, recently developed and held to be of constitutional requisite. 
Thus, there must be a causal connection between the injury and the 
conduct complained of; that is, the Court insists that the plaintiff 
show that ``but for'' the action, she would not have been injured. And 
the Court has insisted that there must be a ``substantial likelihood'' 
that the relief sought from the court if granted would remedy the 
harm.\352\ Thus, poor people who had been denied service at certain 
hospitals were held to lack standing to challenge IRS policy of 
extending tax benefits to hospitals that did not serve indigents, since 
they could not show that alteration of the tax policy would cause the 
hospitals to alter their policies and treat them.\353\ Low-income 
persons seeking the invalidation of a town's restrictive zoning 
ordinance were held to lack standing, because they had failed to allege 
with sufficient particularity that the complained-of injury, inability 
to obtain adequate housing within their means, was fairly attributable 
to the ordinance instead of to other factors, so that voiding of the 
ordinance might not have any effect upon their ability to find 
affordable housing.\354\ Similarly, the link between fully integrated 
public schools and allegedly lax administration of tax policy permitting 
benefits to discriminatory private

[[Page 661]]
schools was deemed too tenuous, the harm flowing from private actors not 
before the courts and the speculative possibility that directing denial 
of benefits would result in any minority child being admitted to a 
school.\355\ But the Court did permit plaintiffs to attack the 
constitutionality of a law limiting the liability of private utilities 
in the event of nuclear accidents and providing for indemnification, on 
a showing that ``but for'' the passage of the law there was a 
``substantial likelihood,'' based upon industry testimony and other 
material in the legislative history, that the nuclear power plants would 
not be constructed and that therefore the environmental and aesthetic 
harm alleged by plaintiffs would not occur; thus, a voiding of the law 
would likely relieve the plaintiffs of the complained of injuries.\356\ 
Operation of these requirements makes difficult but not impossible the 
establishment of standing by persons indirectly injured by governmental 
action, that is, action taken as to third parties that is alleged to 
have as a consequence injured the claimants.\357\

        \352\Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 
(1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc. 
v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although 
the two tests were initially articulated as two facets of a single 
requirement, the Court now insists they are separate inquiries. Id., 468 
U.S., 753 n. 19. ``To the extent there is a difference, it is that the 
former examines a causal connection between the assertedly unlawful 
conduct and the alleged injury, whereas the latter examines the causal 
connection between the alleged injury and the judicial relief 
requested.'' Id.
        \353\Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 
(1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother 
of illegitimate child lacked standing to contest prosecutorial policy of 
utilizing child support laws to coerce support of legitimate children 
only, since it was ``only speculative'' that prosecution of father would 
result in support rather than jailing).
        \354\Warth v. Seldin, 422 U.S. 490 (1975). But in Village of 
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 
(1974), a person who alleged he was seeking housing in the community and 
that he would qualify if the organizational plaintiff were not inhibited 
by allegedly racially discriminatory zoning laws from constructing 
housing for low-income persons like himself was held to have shown a 
``substantial probability'' that voiding of the ordinance would benefit 
        \355\Allen v. Wright, 468 U.S. 737 (1984). But compare Heckler 
v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in 
conferral of benefits were held to have standing to challenge the 
treatment, although a judicial order could only have terminated benefits 
to the favored class. In that event, members would have secured relief 
in the form of equal treatment, even if they did not receive benefits. 
And see Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); 
Orr v. Orr, 440 U.S. 268, 271-273 (1979).
        \356\Duke Power Co. v. Carolina Environmental Study Group, 438 
U.S. 59, 72-78 1978). The likelihood of relief in some cases appears to 
be rather speculative at best. E.g., Bryant v. Yellen, 447 U.S. 352, 
366-368 (1980); Watt v. Energy Action Educational Foundation, 454 U.S. 
151, 160-162 (1981).
        \357\Warth v. Seldin, 422 U.S. 490, 505 (1975); Allen v. Wright, 
468 U.S. 737, 756-761 (1984).

        Prudential Standing Rules.--Even when Article III constitutional 
standing rules have been satisfied, the Court has held that principles 
of prudence may counsel the judiciary to refuse to adjudicate some 
claims.\358\ With respect to the prudential rules, it is clear that the 
Court feels free to disregard any of these principles in cases in which 
it thinks exceptionable circumstances exists,\359\ and Congress is free 
to legislate away prudential restraints upon the Court's jurisdiction 
and confer standing to the furtherest extent permitted by Article 
III.\360\ The Court has identified three

[[Page 662]]
rules as prudential ones,\361\ only one of which has been a significant 
factor in the jurisprudence of standing. The first two rules are that 
the plaintiff's interest, to which she asserts an injury, must come 
within the ``zone of interest'' arguably protected by the constitutional 
provision or statute in question\362\ and that plaintiffs may not air 
``generalized grievances'' shared by all or a large class of 
citizens.\363\ The important rule concerns the ability of a plaintiff to 
represent the constitutional rights of third parties not before the 

        \358\Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 
99-100 (1979) (``a plaintiff may still lack standing under the 
prudential principles by which the judiciary seeks to avoid deciding 
questions of broad social import where no individual rights would be 
vindicated and to limit access to the federal courts to those litigants 
best suited to assert a particular claim'').
        \359\Warth v. Seldin, 422 U.S. 490, 500-501 (1975); Craig v. 
Boren, 429 U.S. 190, 193-194 (1976).
        \360\``Congress may grant an express right of action to persons 
who otherwise would be barred by prudential standing rules. Of course, 
Art. III's requirement remains: the plaintiff still must allege a 
distinct and palpable injury to himself, even if it is an injury shared 
by a large class of other possible litigants.'' Warth v. Seldin, 422 
U.S. 490, 501 (1975). That is, the actual or threatened injury required 
may exist solely by virtue of ``statutes creating legal rights, the 
invasion of which creates standing, even though no injury would exist 
without the statute.'' Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 
(1973); O'Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples 
include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. 
Metropolitan Life Ins. Co ., 409 U.S. 205 (1972); Gladstone, Realtors v. 
Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 
U.S. 1, 8 n. 4, 11-12 (1976). For a good example of the congressionally-
created interest and the injury to it, see Havens Realty Corp. v. 
Coleman, 455 U.S. 363, 373-375 (1982) (Fair Housing Act created right to 
truthful information on availability of housing; black tester's right 
injured through false information, but white tester not injured because 
he received truthful information). It is clear, however, that the Court 
will impose separation-of-powers restraints on the power of Congress to 
create interests to which injury would give standing. Lujan v. Defenders 
of Wildlife, 112 S.Ct. 2130, 2142-2146 (1992).
        \361\Valley Forge Christian College v. Americans United, 454 
U.S. 464, 474-475 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984).
        \362\Assn. of Data Processing Service Orgs. v. Camp, 397 U.S. 
150, 153 (1970); Simon v. Eastern Kentucky Welfare Rights Org ., 426 
U.S. 26, 39 n. 19 (1976); Valley Forge Christian College v. Americans 
United, 454 U.S. 464, 475 (1982); Clarke v. Securities Industry Assn., 
479 U.S. 388 (1987).
        \363\United States v. Richardson, 418 U.S. 166, 173, 174-176 
(1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 
59, 80 (1978); Allen v. Wright, 468 U.S. 737, 751 (1984). In United 
States v. SCRAP, 412 U.S. 669, 687-688 (1973), a congressional conferral 
case, the Court agreed that the interest asserted was one shared by all, 
but the Court has disparaged SCRAP, asserting that it ``surely went to 
the very outer limit of the law,'' Whitmore v. Arkansas, 495 U.S. 149, 
159 (1990).

        Standing to Assert the Constitutional Rights of Others.--
Usually, one may assert only one's interest in the litigation and not 
challenge the constitutionality of a statute or a governmental action 
because it infringes the protectable rights of someone else.\364\ In 
Tileston v. Ullman,\365\ an early round in the attack on a state 
anticontraceptive law, a doctor sued, charging that he was prevented 
from giving his patients needed birth control advice. The Court held he 
had no standing; no right of his was infringed, and he could not 
represent the interests of his patients. But there are

[[Page 663]]
several exceptions to this part of the standing doctrine that make 
generalization misleading. Many cases allow standing to third parties if 
they demonstrate a requisite degree of injury to themselves and if under 
the circumstances the injured parties whom they seek to represent would 
likely not be able to assert their rights. Thus, in Barrows v. 
Jackson,\366\ a white defendant who was being sued for damages for 
breach of a restrictive covenant directed against African Americans--and 
therefore able to show injury in liability for damages--was held to have 
standing to assert the rights of the class of persons whose 
constitutional rights were infringed.\367\ Similarly, the Court has 
permitted defendants who have been convicted under state law--giving 
them the requisite injury--to assert the rights of those persons not 
before the Court whose rights would be adversely affected through 
enforcement of the law in question.\368\ In fact, the Court has 
permitted persons who would be subject to future prosecution or future 
legal action--thus satisfying the injury requirement--to represent the 
rights of third parties with whom the challenged law has interfered with 
a relationship.\369\ It is also possible, of course, that one's own 
rights can be affected by action directed at someone from another 

        \364\United States v. Raines, 362 U.S. 17, 21-23 (1960); Yazoo & 
M.V.R. Co. v. Jackson Vinegar Co., 226 U.S. 217 (1912). Cf. Bender v. 
Williamsport Area School Dist., 475 U.S. 534 (1986).
        \365\318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508-
510 (1975) (challenged law did not adversely affect plaintiffs and did 
not adversely affect a relationship between them and persons they sought 
to represent).
        \366\346 U.S. 249 (1953).
        \367\See also Buchanan v. Warley, 245 U.S. 60 (1917) (white 
plaintiff suing for specific performance of a contract to convey 
property to a Negro had standing to contest constitutionality of 
ordinance barring sale of property to African Americans, inasmuch as 
black defendant was relying on ordinance as his defense); Sullivan v. 
Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership 
in discriminatory private club could raise rights of black assignee in 
seeking injunction against expulsion from club).
        \368\E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons 
convicted of prescribing contraceptives for married persons and as 
accessories to crime of using contraceptives have standing to raise 
constitutional rights of patients with whom they had a professional 
relationship; while use of contraceptives was a crime, it was doubtful 
any married couple would be prosecuted so that they could challenge the 
statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of 
contraception convicted of giving device to unmarried woman had standing 
to assert rights of unmarried persons denied access; unmarried persons 
not subject to prosecution and were thus impaired in ability to obtain 
them or gain forum to assert rights).
        \369\E.g., Doe v. Bolton, 410 U.S. 179, 188-189 (1973) (doctors 
have standing to challenge abortion statute since it operates directly 
against them and they should not have to await criminal prosecution in 
order to determine their validity); Planned Parenthood v. Danforth, 428 
U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192-197 (1976) 
(licensed beer distributor could contest sex discriminatory alcohol laws 
because it operated on him, he suffered injury in fact, and was 
``obvious claimant'' to raise issue); Carey v. Population Services 
Intl., 431 U.S. 678, 682-684 (1977) (vendor of contraceptives had 
standing to bring action to challenge law limiting distribution). Older 
cases support the proposition. See, e.g., Pierce v. Society of Sisters, 
268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).
        \370\Holland v. Illinois, 493 U.S. 474 (1990) (white defendant 
had standing to raise a Sixth Amendment challenge to exclusion of blacks 
from his jury, since defendant had a right to a jury comprised of a fair 
cross section of the community).


[[Page 664]]

        A substantial dispute was occasioned in Singleton v. Wulff,\371\ 
over the standing of doctors, who were denied Medicaid funds for the 
performance of abortions not ``medically indicated,'' to assert the 
rights of absent women to compensated abortions. All the Justices 
thought the Court should be hesitant to resolve a controversy on the 
basis of the rights of third parties, but they divided with respect to 
the standards exceptions. Four Justices favored a lenient standard, 
permitting third party representation when there is a close, perhaps 
confidential, relationship between the litigant and the third parties 
and when there is some genuine obstacle to third party assertion of 
their rights; four Justices would have permitted a litigant to assert 
the rights of third parties only when government directly interdicted 
the relationship between the litigant and the third parties through the 
criminal process and when litigation by the third parties is in all 
practicable terms impossible.\372\

        \371\428 U.S. 106 (1976).
        \372\Compare id., 112-118 (Justices Blackmun, Brennan, White, 
and Marshall), with id., 123-131 (Justices Powell, Stewart, and 
Rehnquist, and Chief Justice Burger). Justice Stevens concurred with the 
former four Justices on narrower grounds limited to this case.

        Following Wulff, the Court emphasized the close attorney-client 
relationship in holding that a lawyer had standing to assert his 
client's Sixth Amendment right to counsel in challenging application of 
a drug-forfeiture law to deprive the client of the means of paying 
counsel.\373\ However, a ``next friend'' whose stake in the outcome is 
only speculative must establish that the real party in interest is 
unable to litigate his own cause because of mental incapacity, lack of 
access to courts, or other disability.\374\

        \373\Caplin & Drysdale v. United States, 491 U.S. 617, 623-624 
n. 3 (1989).
        \374\Whitmore v. Arkansas, 495 U.S. 149 (1990) (death row 
inmate's challenge to death penalty imposed on a fellow inmate who 
knowingly, intelligently, and voluntarily chose not to appeal cannot be 

        A variant of the general rule is that one may not assert the 
unconstitutionality of a statute in other respects when the statute is 
constitutional as to him.\375\ Again, the exceptions may be more 
important than the rule. Thus, an overly broad statute, especially one 
that regulates speech and press, may be considered on its face rather 
than as applied, and a defendant to whom the statute constitutionally 
applies may be enabled to assert its unconstitutionality thereby.\376\

        \375\United States v. Raines, 362 U.S. 17, 21-24 (1960).
        \376\Lanzetta v. New Jersey, 306 U.S. 451 (1939); Thornhill v. 
Alabama, 310 U.S. 88 (1940); Winters v. New York, 333 U.S. 507 (1948); 
Dombrowski v. Pfister, 380 U.S. 479, 486-487 (1965); Gooding v. Wilson, 
405 U.S. 518 (1972); Lewis v. City of New Orleans, 415 U.S. 130 (1974). 
The Court has narrowed its overbreadth doctrine, though not 
consistently, in recent years. Broadrick v. Oklahoma, 413 U.S. 601 
(1973); Young v. American Mini Theatres, 427 U.S. 50, 59-60 (1976), and 
id., 73 (Justice Powell concurring); New York v. Ferber, 458 U.S. 747, 
771-773 (1982). But the exception as stated in the text remains strong. 
E.g., Secretary of State v. Joseph H. Munson Co., 467 U.S. 947 (1984); 
Virginia v. American Booksellers Assn., 484 U.S. 383 (1988).


[[Page 665]]

        Organizational Standing.--Organizations do not have standing as 
such to represent their particular concept of the public interest,\377\ 
but organizations have been permitted to assert the rights of their 
members.\378\ In Hunt v. Washington State Apple Advertising Comm.,\379\ 
the Court promulgated elaborate standards, holding that an organization 
or association ``has standing to bring suit on behalf of its members 
when: (a) its members would otherwise have standing to sue in their own 
right; (b) the interests it seeks to protect are germane to the 
organization's purpose; and (c) neither the claim asserted, nor the 
relief requested, requires the participation of individual members in 
the lawsuit.'' Similar considerations arise in the context of class 
actions, in which the Court holds that a named representative with a 
justiciable claim for relief is necessary when the action is filed and 
when the class is certified, but that following class certification 
there need be only a live controversy with the class, provided the 
adequacy of the representation is sufficient.\380\

        \377\Sierra Club v. Morton, 401 U.S. 727 (1972). An organization 
may, of course, sue to redress injuries to itself. See Havens Realty Co. 
v. Coleman, 455 U.S. 363, 378-379 (1982).
        \378\E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U.S. 123 (1951); NAACP v. Alabama ex rel Patterson, 357 U.S. 449 (1958); 
NAACP v. Button, 371 U.S. 415 (1963); Brotherhood of Railroad Trainmen 
v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); United Mine 
Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967); United 
Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971).
        \379\432 U.S. 333, 343 (1977). The organization here was not a 
voluntary membership entity but a state agency charged with furthering 
the interests of apple growers who were assessed annual sums to support 
the Commission. Id., 341-345. See also Warth v. Seldin, 422 U.S. 490, 
510-517 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 
26, 39-40 (1976); Village of Arlington Heights v. Metropolitan Housing 
Dev. Corp., 429 U.S. 252, 263-264 (1977); Harris v. McRae, 448 U.S. 297, 
321 (1980); International Union, UAW v. Brock, 477 U.S. 274 (1986).
        \380\United States Parole Comm. v. Geraghty, 445 U.S. 388 
(1980). Geraghty was a mootness case.

        Standing of States to Represent Their Citizens.--The right of a 
State to sue as parens patriae, in behalf of its citizens, has long been 
recognized.\381\ No State, however, may be parens patriae of her 
citizens ``as against the Federal Government.''\382\ But a State may sue 
on behalf of the economic welfare of its citizens to protect

[[Page 666]]
them from environmental harm\383\ and to enjoin other States and private 
parties from engaging in actions harmful to the economic or other well-
being of its citizens.\384\ The State must be more than a nominal party 
without a real interest of its own, merely representing the interests of 
particular citizens who cannot represent themselves;\385\ it must 
articulate an interest apart from those of private parties that partakes 
of a ``quasi-sovereign interest'' in the health and well-being, both 
physical and economic, of its residents in general, although there are 
suggestions that the restrictive definition grows out of the Court's 
wish to constrain its original jurisdiction and may not fit such suits 
brought in the lower federal courts.\386\

        \381\Louisiana v. Texas, 176 U.S. 1 (1900) (recognizing the 
propriety of parens patriae suits but denying it in this particular 
        \382\Massachusetts v. Mellon, 262 U.S. 447, 485-486 (1923). But 
see South Carolina v. Katzenbach, 383 U.S. 301 (1966) (denying such 
standing to raise two constitutional claims against the United States 
but deciding a third); Oregon v. Mitchell, 400 U.S. 112, 117 n. 1 (1970) 
(no question raised about standing or jurisdiction; claims adjudicated).
        \383\Missouri v. Illinois, 180 U.S. 208 (1901); Kansas v. 
Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 
230 (1907); New York v. New Jersey, 256 U.S. 296 (1921); Pennsylvania v. 
West Virginia, 262 U.S. 553 (1923); North Dakota v. Minnesota, 263 U.S. 
365 (1923).
        \384\Georgia v. Pennsylvania Railroad Co., 324 U.S. 439 (1945) 
(antitrust); Maryland v. Louisiana, 451 U.S. 725, 737-739 (1981) 
(discriminatory state taxation of natural gas shipped to out-of-state 
customers); Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 
592 (1982) (discrimination by growers against Puerto Rican migrant 
workers and denial of Commonwealth's opportunity to participate in 
federal employment service laws).
        \385\New Hampshire v. Louisiana, 108 U.S. 76 (1883); Oklahoma ex 
rel. Johnson v. Cook, 304 U.S. 387 (1938); Oklahoma v. Atchison, T. & 
S.F.Ry., 220 U.S. 277 (1911); North Dakota v. Minnesota, 263 U.S. 365, 
376 (1923); Pennsylvania v. New Jersey, 426 U.S. 660 (1976).
        \386\Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 
U.S. 592, 607-608 (1982). Justice Brennan, joined by Justices Marshall, 
Blackmun, and Stevens, argued that the Court's standards should apply 
only in original actions and not in actions filed in federal district 
courts, where, they contended, the prerogative of a State to bring suit 
on behalf of its citizens should be commensurate with the ability of 
private organizations to do so. Id., 610. The Court admitted that 
different considerations might apply between original actions and 
district court suits. Id., 603 n. 12.

        Standing of Members of Congress.--The lower federal courts have 
of late developed a body of law with respect to the standing of Members 
of Congress, as Members, to bring court actions, usually to challenge 
actions of the executive branch. Most of the law has developed in the 
District of Columbia Circuit,\387\ and the Supreme Court has yet to 
consider the issue on the merits.\388\

[[Page 667]]
It seems clear that a legislator ``receives no special consideration in 
the standing inquiry,''\389\ and that he, along with every other person 
attempting to invoke the aid of a federal court, must show ``injury in 
fact'' as a predicate to standing. What that injury in fact may consist 
of, however, is the basis of the controversy.

        \387\Member standing has not fared well in other Circuits. 
Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir., 1973), cert. den., 416 
U.S. 936 (1974); Harrington v. Schlesinger, 528 F.2d 455 (4th Cir., 
        \388\In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court 
recognized that legislators can in some instances suffer an injury in 
respect to the effectiveness of their votes that will confer standing. 
In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg. 428 F. Supp. 302 
(D.D.C. 1976) (three-judge court), the Court affirmed a decision in 
which the lower court had found Member standing but had then decided 
against the Member on the merits. The ``unexplicated affirmance'' could 
have reflected disagreement with the lower court on standing or 
agreement with it on the merits. Note Justice Rehnquist's appended 
statement. Ibid. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court 
vacated a decision, in which the lower Court had found Member standing, 
and directed dismissal, but none of the Justices who set forth reasons 
addressed the question of standing. The opportunity to consider Member 
standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), 
but the expiration of the law in issue mooted the case.
        \389\Reuss v. Balles, 584 F.2d 461, 466 (D.C.Cir.), cert. den., 
439 U.S. 997 (1978).

        A suit by Members for an injunction against continued 
prosecution of the Indochina war was held maintainable on the theory 
that if the court found the President's actions to be beyond his 
constitutional authority, the holding would have a distinct and 
significant bearing upon the Members' duties to vote appropriations and 
other supportive legislation and to consider impeachment.\390\ The 
breadth of this rationale was disapproved in subsequent cases. The 
leading decision is Kennedy v. Sampson,\391\ in which a Member was held 
to have standing to contest the alleged improper use of a pocket veto to 
prevent from becoming law a bill the Senator had voted for. Thus, 
Congressmen were held to have a derivative rather than direct interest 
in protecting their votes, which was sufficient for standing purposes, 
when some ``legislative disenfranchisement'' occurred.\392\ In a 
comprehensive assessment of its position, the Circuit distinguished 
between (1) a diminution in congressional influence resulting from 
executive action that nullifies a specific congressional vote or 
opportunity to vote in an objectively verifiable manner, which will 
constitute injury in fact, and (2) a diminution in a legislator's 
effectiveness, subjectively judged by him, resulting from executive 
action, such a failing to obey a statute, where the plaintiff legislator 
has power to act through the legislative process, in which injury in 
fact does not exist.\393\ Having thus established

[[Page 668]]
a fairly broad concept of Member standing, the Circuit then proceeded to 
curtail it by holding that the equitable discretion of the court to deny 
relief should be exercised in many cases in which a Member had standing 
but in which issues of separation of powers, political questions, and 
other justiciability considerations counseled restraint.\394\ The status 
of this issue thus remains in confusion.

        \390\Mitchell v. Laird, 488 F.2d 611 (D.C.Cir. 1973).
        \391\511 F.2d 430 (D.C.Cir. 1974). In Barnes v. Kline, 759 F.2d 
21 (D.C.Cir. 1985), the court again found standing by Members 
challenging a pocket veto, but the Supreme Court dismissed the appeal as 
moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury 
was the nullification of the past vote on passage only or whether it was 
also the nullification of an opportunity to vote to override the veto 
has divided the Circuit, with the majority favoring the broader 
interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n. 12 (D.C.Cir.), 
and id., 711-712 (Judge Wright), vacated and remanded with instructions 
to dismiss, 444 U.S. 996 (1979)
        \392\Kennedy v. Sampson, 511 F.2d 430, 435-436 (D.C.Cir. 1974). 
See Harrington v. Bush, 553 F.2d 190, 199 n. 41 (D.C.Cir. 1977). 
Harrington found no standing in a Member's suit challenging CIA failure 
to report certain actions to Congress, in order that Members could 
intelligently vote on certain issues. See also Reuss v. Balles, 584 F.2d 
461 (D.C.Cir.), cert. den., 439 U.S. 997 (1978).
        \393\Goldwater v. Carter, 617 F.2d 697, 702, 703 (D.C.Cir.) (en 
banc), vacated and remanded with instructions to dismiss, 444 U.S. 996 
(1979). The failure of the Justices to remark on standing is somewhat 
puzzling, since it has been stated that courts ``turn initially, 
although not invariably, to the question of standing to sue.'' 
Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 215 
(1974). But see Harrington v. Bush, 553 F.2d 190, 207 (D.C.Cir. 1977). 
In any event, the Supreme Court's decision vacating Goldwater deprives 
the Circuit's language of precedential effect. United States v. 
Munsingwear, 340 U.S. 36, 39-40 (1950); O'Connor v. Donaldson, 422 U.S. 
563, 577 n. 12 (1975).
        \394\Riegle v. FOMC, 656 F.2d 873 (D.C.Cir.), cert. den., 454 
U.S. 1082 (1981).

        Standing to Challenge Nonconstitutional Governmental Action.--
Standing in this sense has a constitutional content to the degree that 
Article III requires a ``case'' or ``controversy,'' necessitating a 
litigant who has sustained or will sustain an injury so that he will be 
moved to present the issue ``in an adversary context and in a form 
historically viewed as capable of judicial resolution.''\395\ 
Liberalization of the law of standing in this field has been notable. 
The ``old law'' required that in order to sue to contest the lawfulness 
of agency administrative action, one must have suffered a ``legal 
wrong,'' that is, ``the right invaded must be a legal right,''\396\ 
requiring some resolution of the merits preliminarily. An injury-in-fact 
was insufficient.

        \395\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 
150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). 
``But where a dispute is otherwise justiciable, the question whether the 
litigant is a `proper party to request an adjudication of a particular 
issue,' [quoting Flast, supra, 100], is one within the power of Congress 
to determine.'' Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972).
        \396\Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). 
See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. 
Lukens Steel Co., 310 U.S. 113 (1940).

        A ``legal right'' could be established in one of two ways. It 
could be a common-law right, such that if the injury were administered 
by a private party, one could sue on it;\397\ or it could be a right 
created by the Constitution or a statute.\398\ The statutory right

[[Page 669]]
most relied on was the judicial review section of the Administrative 
Procedure Act, which provided that ``[a] person suffering legal wrong 
because of agency action, or adversely affected or aggrieved by agency 
action within the meaning of a relevant statute, is entitled to judicial 
review thereof.''\399\ Early decisions under this statute interpreted 
the language as adopting the ``legal interest'' and ``legal wrong'' 
standard then prevailing as constitutional requirements of standing, 
which generally had the effect of limiting the type of injury cognizable 
in federal court to economic ones.\400\

        \397\Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 
123, 152 (1951) (Justice Frankfurter concurring). This was apparently 
the point of the definition of ``legal right'' as ``one of property, one 
arising out of contract, one protected against tortious invasion, or one 
founded on a statute which confers a privilege.'' Tennessee Power Co. v. 
TVA, 306 U.S. 118, 137-138 (1939).
        \398\Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 
123, 152 (1951) (Justice Frankfurter concurring). The Court approached 
this concept in two interrelated ways. (1) It might be that a plaintiff 
had an interest that it was one of the purposes of the statute in 
question to protect in some degree. Chicago Junction Case, 264 U.S. 258 
(1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); 
Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. 
Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to 
have standing to contest allegedly illegal competition by TVA on the 
ground that the statute was meant to give private utilities some 
protection from certain forms of TVA competition. (2) It might be that a 
plaintiff was a ``person aggrieved'' within the terms of a judicial 
review section of an administrative or regulatory statute. Injury to an 
economic interest was sufficient to ``aggrieve'' a litigant. FCC v. 
Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated 
Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 
U.S. 707 (1943).
        \399\5 U.S.C. Sec. 702. See also 47 U.S.C. Sec. 202(b)(6)(FCC); 
15 U.S.C. Sec. 77i(a) (SEC); 16 U.S.C. Sec. 825a(b)(FPC).
        \400\FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 
(1940); City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77, 83 
(1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).

        More recently, however, the Court promulgated a two-pronged 
standing test: if the litigant (1) has suffered injury-in-fact and if he 
(2) shows that the interest he seeks to protect is arguably within the 
zone of interests to be protected or regulated by the statutory 
guarantee in question, he has standing.\401\ Of even greater importance 
was the expansion of the nature of the injury required beyond economic 
injury, which followed logically to some extent from the revision of the 
standard, to encompass ``aesthetic, conservational, and recreational'' 
interests as well.\402\ ``Aesthetic and environmental well-being, like 
economic well-being, are important ingredients of the quality of life in 
our society, and the fact that particular environmental interests are 
shared by the many rather than the few does not make them less deserving 
of legal protection

[[Page 670]]
through the judicial process.''\403\ Thus, plaintiffs, who had pleaded 
that they used the natural resources of the Washington area, that rail 
freight rates would deter the recycling of used goods, and that their 
use of natural resources would be disturbed by the adverse environmental 
impact caused by the nonuse of recyclable goods, had standing as 
``persons aggrieved'' to challenge the rates set. Neither the large 
numbers of persons allegedly injured nor the indirect and less 
perceptible harm to the environment was justification to deny standing. 
The Court granted that the plaintiffs might never be able to establish 
the ``attenuated line of causation'' from rate setting to injury, but 
that was a matter for proof at trial, whereas in the instant case the 
Court dealt only with the pleadings.\404\

        \401\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 
(1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and 
White argued that only injury-in-fact should be requisite for standing. 
Id., 167. In Clarke v. Securities Industry Assn., 479 U.S. 388 (1987), 
the Court applied a liberalized zone-of-interest test. But see Lujan v. 
National Wildlife Federation, 497 U.S. 871, 885-889 (1990); Air Courier 
Conference v. American Postal Workers Union, 498 U.S. 517 (1991). In 
applying these standards, the Court, once it determined that the 
litigant's interests were ``arguably protected'' by the statute in 
question, proceeded to the merits without thereafter pausing to inquire 
whether in fact the interests asserted were among those protected. 
Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute 
v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm., 
429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also 
liberalized the ripeness requirement in review of administrative 
actions. Gardner v. Toilet Goods Assn., 387 U.S. 167 (1967); Abbott 
Laboratories v. Gardner, 387 U.S. 136 (1967).
        \402\Assn. of Data Processing Service Org. v. Camp, 397 U.S. 
150, 154 (1970).
        \403\Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, 
said the Court, once a person establishes that he has standing to seek 
judicial review of an action because of particularized injury to him, he 
may argue the public interest as a ``representative of the public 
interest,'' as a ``private attorney general,'' so that he may contest 
not only the action which injures him but the entire complex of actions 
of which his injury-inducing action is a part. Id., 737-738, noting 
Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers 
Radio Station, 309 U.S. (1940). See also Gladstone, Realtors v. Village 
of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 
455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent 
interests of third parties).
        \404\United States v. SCRAP, 412 U.S. 669, 683-690 (1973). As 
was noted above, this case has been disparaged by the later Court. Lujan 
v. Defenders of Wildlife, 112 S.Ct. 2130, 2139-2140 (1992); Whitmore v. 
Arkansas, 495 U.S. 149, 158-160 (1990).

        Much debate has occurred in recent years with respect to the 
validity of ``citizen suit'' provisions in the environmental laws, 
especially in light of the Court's retrenchment in constitutional 
standing cases. The Court in insisting on injury in fact as well as 
causation and redressability has curbed access to citizen suits,\405\ 
but that Congress may expansively confer substantial degrees of standing 
through statutory creations of interests remains true.

        \405\See Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992); 
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).
      The Requirement of a Real Interest

        Almost inseparable from the requirements of adverse parties and 
substantial enough interests to confer standing is the requirement that 
a real issue be presented, as contrasted with speculative, abstract, 
hypothetical, or moot issues. It has long been the Court's ``considered 
practice not to decide abstract, hypothetical or contingent 
questions.''\406\ A party cannot maintain a suit ``for a mere 
declaration in the air.''\407\ In Texas v. ICC,\408\ the State attempted 
to enjoin the enforcement of the Transportation Act of 1920 on the

[[Page 671]]
ground that it invaded the reserved rights of the State. The Court 
dismissed the complaint as presenting no case or controversy, declaring: 
``It is only where rights, in themselves appropriate subjects of 
judicial cognizance, are being, or about to be, affected prejudicially 
by the application or enforcement of a statute that its validity may be 
called in question by a suitor and determined by an exertion of the 
judicial power.''\409\ And in Ashwander v. TVA,\410\ the Court refused 
to decide any issue save that of the validity of the contracts between 
the Authority and the Company. ``The pronouncements, policies and 
program of the Tennessee Valley Authority and its directors, their 
motives and desires, did not give rise to a justiciable controversy save 
as they had fruition in action of a definite and concrete character 
constituting an actual or threatened interference with the rights of the 
person complaining.''\411\

        \406\Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 
461 (1945).
        \407\Giles v. Harris, 189 U.S. 475, 486 (1903).
        \408\258 U.S. 158 (1922).
        \409\Id., 162.
        \410\297 U.S. 288 (1936).
        \411\Id., 324. Chief Justice Hughes cited New York v. Illinois, 
274 U.S. 488 (1927), in which the Court dismissed as presenting abstract 
questions a suit about the possible effects of the diversion of water 
from Lake Michigan upon hypothetical water power developments in the 
indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in 
which it was held that claims based merely upon assumed potential 
invasions of rights were insufficient to warrant judicial intervention. 
See also Massachusetts v. Mellon, 262 U.S. 447, 484-485 (1923); New 
Jersey v. Sargent, 269 U.S. 328, 338-340 (1926); Georgia v. Stanton, 6 
Wall. (73 U.S.) 50, 76 (1868).

        Concepts of real interest and abstract questions appeared 
prominently in United Public Workers v. Mitchell,\412\ an omnibus attack 
on the constitutionality of the Hatch Act prohibitions on political 
activities by governmental employees. With one exception, none of the 
plaintiffs had violated the Act, though they stated they desired to 
engage in forbidden political actions. The Court found no justiciable 
controversy except in regard to the one, calling for ``concrete legal 
issues, presented in actual cases, not abstractions'', and seeing the 
suit as really an attack on the political expediency of the Act.\413\

        \412\330 U.S. 75 (1947).
        \413\Id., 89-91. Justices Black and Douglas dissented, 
contending that the controversy was justiciable. Justice Douglas could 
not agree that the plaintiffs should have to violate the act and lose 
their jobs in order to test their rights. In CSC v. National Assn. of 
Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell 
were largely ignored as the Court reached the merits in an anticipatory 
attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).

        Advisory Opinion.--In 1793, the Court unanimously refused to 
grant the request of President Washington and Secretary of State 
Jefferson to construe the treaties and laws of the United States 
pertaining to questions of international law arising out of

[[Page 672]]
the wars of the French Revolution.\414\ Noting the constitutional 
separation of powers and functions in his reply, Chief Justice Jay said: 
``These being in certain respects checks upon each other, and our being 
Judges of a Court in the last resort, are considerations which afford 
strong arguments against the propriety of our extra-judicially deciding 
the questions alluded to, especially as the power given by the 
Constitution to the President, of calling on the heads of departments 
for opinions, seem to have been purposely as well as expressly united to 
the Executive departments.''\415\ Although the Court has generally 
adhered to its refusal, Justice Jackson was not quite correct when he 
termed the policy a ``firm and unvarying practice. . . .''\416\ The 
Justices in response to a letter calling for suggestions on improvements 
in the operation of the courts drafted a letter suggesting that circuit 
duty for the Justices was unconstitutional, but they apparently never 
sent it;\417\ Justice Johnson communicated to President Monroe, 
apparently with the knowledge and approval of the other Justices, the 
views of the Justices on the constitutionality of internal improvements 
legislation;\418\ and Chief Justice Hughes in a letter to Senator 
Wheeler on President Roosevelt's Court Plan questioned the 
constitutionality of a proposal to increase the membership and have the 
Court sit in divisions.\419\ Other Justices have individually served as 
advisers and confidants of Presidents in one degree or another.\420\

        \414\1 C. Warren, op. cit., n. 18, 108-111. The full text of the 
exchange appears in 3 Correspondence and Public Papers of John Jay, H. 
Johnston ed. (New York: 1893), 486-489.
        \415\Id., 488.
        \416\Chicago & S. Air Lines v. Waterman Steamship Corp., 333 
U.S. 103, 113 (1948).
        \417\See supra, p.599 n.21.
        \418\1 C. Warren, op. cit., n. 18, 595-597.
        \419\Hearings Before the Senate Judiciary Committee on S. 1392, 
Reorganization of the Judiciary, 75th Congress, 1st sess. (1937), pt. 3, 
491. See also Chief Justice Taney's private advisory opinion to the 
Secretary of the Treasury that a tax levied on the salaries of federal 
judges violated the Constitution. S. Tyler, Memoirs of Roger B. Taney 
(Baltimore: 1876), 432-435.
        \420\E.g., Acheson, Removing the Shadow Cast on the Courts, 55 
A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to 
Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 
Harv. L. Rev. 366 (1969). The issue has lately earned the attention of 
the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397-408 
(1989) (citing examples and detailed secondary sources), when it upheld 
the congressionally-authorized service of federal judges on the 
Sentencing Commission.

        Nonetheless, the Court has generally adhered to the early 
precedent and would no doubt have developed the rule in any event, as a 
logical application of the case and controversy doctrine. As stated by 
Justice Jackson, when the Court refused to review an order of the Civil 
Aeronautics Board, which in effect was a mere

[[Page 673]]
recommendation to the President for his final action: ``To revise or 
review an administrative decision which has only the force of a 
recommendation to the President would be to render an advisory opinion 
in its most obnoxious form--advice that the President has not asked, 
tendered at the demand of a private litigant, on a subject concededly 
within the President's exclusive, ultimate control. This Court early and 
wisely determined that it would not give advisory opinions even when 
asked by the Chief Executive. It has also been the firm and unvarying 
practice of Constitutional Courts to render no judgments not binding and 
conclusive on the parties and none that are subject to later review or 
alteration by administrative action.''\421\ The early refusal of the 
Court to render advisory opinions has discouraged direct requests for 
advice so that the advisory opinion has appeared only collaterally in 
cases where there was a lack of adverse parties,\422\ or where the 
judgment of the Court was subject to later review or action by the 
executive or legislative branches of Government,\423\ or where the 
issues involved were abstract or contingent.\424\

        \421\Chicago & S. Air Lines v. Waterman Steamship Corp., 333 
U.S. 103, 113-114 (1948).
        \422\Muskrat v. United States, 219 U.S. 346 (1911).
        \423\United States v. Ferreira, 13 How. (54 U.S.) 40 (1852).
        \424\United Public Workers v. Mitchell, 330 U.S. 75 (1947).

        Declaratory Judgments.--Rigid emphasis upon such elements of 
judicial power as finality of judgment and award of execution coupled 
with equally rigid emphasis upon adverse parties and real interests as 
essential elements of a case and controversy created serious doubts 
about the validity of any federal declaratory judgment procedure.\425\ 
These doubts were largely dispelled by Court decisions in the late 1920s 
and early 1930s,\426\ and Congress quickly responded with the Federal 
Declaratory Judgment Act of 1934.\427\ Quickly tested, the Act was 
unanimously sustained.\428\ ``The principle involved in this form of 
procedure,'' the House Report said, ``is to confer upon the courts the 
power to exercise in some instances preventive relief; a function now 
performed rather clumsily by our equitable proceedings and inadequately 
by the law courts.''\429\ Said the Senate Report: ``The declaratory 
judgment differs in no essential respect from any other judgment except 
that it is not followed by a decree for damages, injunction, specific 
performance, or other immediately coercive decree. It declares conclu

[[Page 674]]
sively and finally the rights of parties in litigations over a contested 
issue, a form of relief which often suffices to settle controversies and 
fully administer justice.''\430\

        \425\Cf. Willing v. Chicago Auditorium Assn., 277 U.S. 274 
        \426\Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 
(1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963).
        \427\48 Stat. 955, as amended, 28 U.S.C. Sec. Sec. 2201-2202.
        \428\Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
        \429\H. Rept. No. 1264, 73d Congress, 2d sess. (1934), 2.
        \430\S. Rept. No. 1005, 73d Congress, 2d sess. (1934), 2.

        The 1934 Act provided that ``[i]n cases of actual controversy'' 
federal courts could ``declare rights and other legal relations of any 
interested party petitioning for such declaration, whether or not 
further relief is or could be prayed. . . .''\431\ Upholding the Act, 
the Court said: ``The Declaratory Judgment Act of 1934, in its 
limitation to `cases of actual controversy,' manifestly has regard to 
the constitutional provision and is operative only in respect to 
controversies which are such in the constitutional sense. The word 
`actual' is one of emphasis rather than of definition. Thus the 
operation of the Declaratory Judgment Act is procedural only. In 
providing remedies and defining procedure in relation to cases and 
controversies in the constitutional sense the Congress is acting within 
its delegated power over the jurisdiction of the federal courts which 
the Congress is authorized to establish.''\432\ Finding that the issue 
in the case presented a definite and concrete controversy, the Court 
held that a declaration should have been issued.\433\

        \431\48 Stat. 955. The language remains quite similar. 28 U.S.C. 
Sec. 2201.
        \432\Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-240 
        \433\Id., 242-244.

        It has insistently been maintained by the Court that ``the 
requirements for a justiciable case or controversy are no less strict in 
a declaratory judgment proceeding than in any other type of suit.''\434\ 
As Justice Douglas has written: ``The difference between an abstract 
question and a `controversy' contemplated by the Declaratory Judgment 
Act is necessarily one of degree, and it would be difficult, if it would 
be possible, to fashion a precise test for determining in every case 
whether there is such a controversy. Basically, the question in each 
case is whether the facts alleged, under all the circumstances, show 
that there is a substantial controversy, between parties having adverse 
legal interests, of sufficient immediacy and reality to warrant the 
issuance of a declaratory judgment.''\435\ It remains, therefore, for 
the courts to determine in each case the degree of controversy necessary 
to establish a case for purposes of jurisdiction. Even then, however, 
the Court is under no compulsion to exercise its jurisdiction.\436\

        \434\Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 
461 (1945).
        \435\Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 
270, 273 (1941).
        \436\Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 
(1942); Public Service Comm. v. Wycoff Co., 344 U.S. 237, 243 (1952); 
Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962).


[[Page 675]]

        Utilization of declaratory judgments to settle disputes and 
identify rights in many private areas, like insurance and patents in 
particular but extending into all areas of civil litigation, except 
taxes,\437\ is common. The Court has, however, at various times 
demonstrated a substantial reluctance to have important questions of 
public law, especially regarding the validity of legislation, resolved 
by such a procedure.\438\ In part, this has been accomplished by a 
strict insistence upon concreteness, ripeness, and the like.\439\ 
Nonetheless, even at such times, several noteworthy constitutional 
decisions were rendered in declaratory judgment actions.\440\

        \437\An exception ``with respect to Federal taxes'' was added in 
1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, 
U.S.C. Sec. 1341, prohibited federal injunctive relief directed at state 
taxes but said nothing about declaratory relief. It was held to apply, 
however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). 
Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 
(1943), the Court had reserved the issue but held that considerations of 
comity should preclude federal courts from giving declaratory relief in 
such cases. Cf. Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 
100 (1981).
        \438\E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond 
& Share, Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v. 
Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 
(1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572-573 (1947).
        \439\United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe 
v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 
(1943); International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954); 
Public Service Comm. v. Wycoff, 344 U.S. 237 (1952).
        \440\E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 
307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. 
Dwyer, 358 U.S. 202 (1958).

        As part of the 1960s hospitality to greater access to courts, 
the Court exhibited a greater hospitality to declaratory judgments in 
constitutional litigation, especially cases involving civil liberties 
issues.\441\ The doctrinal underpinnings of this hospitality were 
sketched out by Justice Brennan in his opinion for the Court in Zwickler 
v. Koota,\442\ in which the relevance to declaratory judgments of the 
Dombrowski v. Pfister\443\ line of cases involving federal injunctive 
relief against the enforcement of state criminal statutes was in issue. 
First, it was held that the vesting of ``federal question'' jurisdiction 
in the federal courts by Congress following the Civil War, as well as 
the enactment of more specific civil rights jurisdictional statutes, 
``imposed the duty upon all levels of the federal judiciary to give due 
respect to a suitor's choice of a federal forum for the hearing and 
decision of his federal constitutional claims.''\444\

        \441\E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. 
Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369 
U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see 
Golden v. Zwickler, 394 U.S. 103 (1969).
        \442\389 U.S. 241 (1967).
        \443\380 U.S. 479 (1965).
        \444\Zwickler v. Koota, 389 U.S. 241, 248 (1967).

[[Page 676]]

        Escape from that duty might be found only in ``narrow 
circumstances,'' such as an appropriate application of the abstention 
doctrine, which was not proper where a statute affecting civil liberties 
was so broad as to reach protected activities as well as unprotected 
activities. Second, the judicially-developed doctrine that a litigant 
must show ``special circumstances'' to justify the issuance of a federal 
injunction against the enforcement of state criminal laws is not 
applicable to requests for federal declaratory relief: ``a federal 
district court has the duty to decide the appropriateness and the merits 
of the declaratory request irrespective of its conclusion as to the 
propriety of the issuance of the injunction.''\445\ This language was 
qualified subsequently, so that declaratory and injunctive relief were 
equated in cases in which a criminal prosecution is pending in state 
court at the time the federal action is filed\446\ or is begun in state 
court after the filing of the federal action but before any proceedings 
of substance have taken place in federal court,\447\ and federal courts 
were instructed not to issue declaratory judgments in the absence of the 
factors permitting issuance of injunctions under the same circumstances. 
But in the absence of a pending state action or the subsequent and 
timely filing of one, a request for a declaratory judgment that a 
statute or ordinance is unconstitutional does not have to meet the 
stricter requirements justifying the issuance of an injunction.\448\

        \445\Zwickler v. Koota, 389 U.S. 241, 254 (1967).
        \446\Samuels v. Mackell, 401 U.S. 66 (1971). The case and its 
companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut 
much of the Dombrowski language and much of Zwickler was downgraded.
        \447\Hicks v. Miranda, 422 U.S. 332, 349 (1975).
        \448\Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered 
by Steffel, the federal court may issue preliminary or permanent 
injunctions to protect its judgments, without satisfying the Younger 
tests. Doran v. Salem Inn, 422 U.S. 922, 930-931 (1975); Wooley v. 
Maynard, 430 U.S. 705, 712 (1977).

        Ripeness.--Just as standing historically has concerned who may 
bring an action in federal court, the ripeness doctrine concerns when it 
may be brought. Formerly, it was a wholly constitutional principle 
requiring a determination that the events bearing on the substantive 
issue have happened or are sufficiently certain to occur so as to make 
necessary adjudication and so as to assure that the issues are 
sufficiently defined to permit intelligent resolution; the focus was on 
the harm to the rights claimed rather than on the harm to the plaintiff 
that gave him standing to bring the action,\449\ although, to be sure, 
in most cases the harm is the same. But in liberalizing the doctrine of 
ripeness in recent years the Court sub

[[Page 677]]
divided it into constitutional and prudential parts\450\ and conflated 
standing and ripeness considerations.\451\

        \449\United Public Workers v. Mitchell, 330 U.S. 75 (1947); 
International Longshoremen's Union v. Boyd, 347 U.S. 222 (1954).
        \450\Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-
148 (1974) (certainty of injury a constitutional limitation, factual 
adequacy element a prudential one).
        \451\Duke Power Co. v. Carolina Environmental Study Group, 438 
U.S. 59, 81-82 (1978) (that plaintiffs suffer injury-in-fact and such 
injury would be redressed by granting requested relief satisfies Article 
III ripeness requirement; prudential element satisfied by determination 
that Court would not be better prepared to render a decision later than 
now). But compare Renne v. Geary, 501 U.S. 312 (1991).

        The early cases generally required potential plaintiffs to 
expose themselves to possibly irreparable injury in order to invoke 
federal judicial review. Thus, in United Public Workers v. 
Mitchell,\452\ government employees alleged that they wished to engage 
in various political activities and that they were deterred from their 
desires by the Hatch Act prohibitions on political activities. As to all 
but one plaintiff, who had himself actually engaged in forbidden 
activity, the Court held itself unable to adjudicate because the 
plaintiffs were not threatened with ``actual interference'' with their 
interests. The Justices viewed the threat to plaintiffs' rights as 
hypothetical and refused to speculate about the kinds of political 
activity they might engage in or the Government's response to it. ``No 
threat of interference by the Commission with rights of these appellants 
appears beyond that implied by the existence of the law and the 
regulations.''\453\ Similarly, resident aliens planning to work in the 
Territory of Alaska for the summer and then return to the United States 
were denied a request for an interpretation of the immigration laws that 
they would not be treated on their return as excludable aliens entering 
the United States for the first time, or alternatively, for a ruling 
that the laws so interpreted would be unconstitutional, inasmuch as they 
had not gone and attempted to return, although other alien workers had 
gone and been denied reentry and the immigration authorities were on 
record as intending to enforce the laws as they construed them.\454\ Of 
course, the Court was not entirely consistent in applying the 

        \452\330 U.S. 75 (1947).
        \453\Id., 90. In CSC v. National Assn. of Letter Carriers, 413 
U.S. 548 (1973), without discussing ripeness, the Court decided on the 
merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, 
alleged a variety of more concrete infringements upon their desires and 
intentions than the UPW plaintiffs had.
        \454\International Longshoremen's Union v. Boyd, 347 U.S. 222 
(1954). See also Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938); 
Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); 
Public Service Comm. v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor 
Party v. Gilligan, 406 U.S. 583 (1972).
        \455\In Adler v. Board of Education, 342 U.S. 485 (1952), 
without discussing ripeness, the Court decided on the merits a suit 
about a state law requiring dismissal of teachers advocating violent 
overthrow of the government, over a strong dissent arguing the case was 
indistinguishable from Mitchell. Id., 504 (Justice Frankfurter 
dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278 
(1961), a state employee was permitted to attack a non-Communist oath, 
although he alleged he believed he could take the oath in good faith and 
could prevail if prosecuted, because the oath was so vague as to subject 
plaintiff to the ``risk of unfair prosecution and the potential 
deterrence of constitutionally protected conduct.'' Id., 283-284. See 
also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of 
Regents, 385 U.S. 589 (1967).


[[Page 678]]

        It remains good general law that pre-enforcement challenges to 
criminal and regulatory legislation will often be unripe for judicial 
consideration because of uncertainty of enforcement,\456\ because the 
plaintiffs can allege only a subjective feeling of inhibition or fear 
arising from the legislation or from enforcement of it,\457\ or because 
the courts need before them the details of a concrete factual situation 
arising from enforcement in order to engage in a reasoned balancing of 
individual rights and governmental interests.\458\ But one who 
challenges a statute or possible administrative action need demonstrate 
only a realistic danger of sustaining an injury to his rights as a 
result of the statute's operation and enforcement and need not await the 
consummation of the threatened injury in order to obtain preventive 
relief, such as exposing himself to actual arrest or prosecution. When 
one alleges an intention to engage in conduct arguably affected with a 
constitutional interest but proscribed by statute and there exists a 
credible threat of prosecution thereunder, he may bring an action for 
declaratory or injunctive relief.\459\ Similarly, the reasonable 
certainty of the occurrence of the perceived threat to a constitutional 
interest is sufficient to afford a basis for bringing a challenge, 
provided the court has sufficient facts before it to enable it to 
intelligently adjudicate the issues.\460\ Of considerable uncertainty in 
the law of ripeness is the Duke

[[Page 679]]
Power case in which the Court held ripe for decision on the merits a 
challenge to a federal law limiting liability for nuclear accidents at 
nuclear power plants, on the basis that because plaintiffs had sustained 
injury-in-fact and had standing the Article III requisite of ripeness 
was satisfied and no additional facts arising out of the occurrence of 
the claimed harm would enable the court better to decide the 
issues.\461\ Should this analysis prevail, ripeness as a limitation on 
justiciability will decline in importance.

        \456\E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication 
of challenge to law barring use of contraceptives because in 80 years of 
the statute's existence the State had never instituted a prosecution). 
But compare Epperson v. Arkansas, 393 U.S. 97 (1987) (merits reached in 
absence of enforcement and fair indication State would not enforce it); 
Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although 
State asserted law would not be used, although local prosecutor had so 
threatened; no discussion of ripeness, but dissent relied on Poe, id., 
        \457\E.g., Younger v. Harris, 401 U.S. 37, 41-42 (1971); Boyle 
v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); 
O'Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S. 
514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976).
        \458\E.g., California Bankers Assn. v. Schultz, 416 U.S. 21 
(1974); Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 
264, 294-297 (1981); Renne v. Geary, 501 U.S. 312, 320-323 (1991).
        \459\Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. 
Maynard, 430 U.S. 705, 707-708, 710 (1977); Babbitt v. United Farm 
Workers, 442 U.S. 289, 297-305 (1979) (finding some claims ripe, others 
not). Compare Doe v. Bolton, 410 U.S. 179, 188-189 (1973), with Roe v. 
Wade, 410 U.S. 113, 127-128 (1973). See also Planned Parenthood v. 
Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).
        \460\Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail 
Reorganization Act Cases, 419 U.S. 102, 138-148 (1974) (holding some but 
not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996, 
997 (Justice Powell concurring) (parties had not put themselves in 
        \461\Duke Power Co. v. Carolina Environmental Study Group, 438 
U.S. 59, 81-82 (1978). The injury giving standing to plaintiffs was the 
environmental harm arising from the plant's routine operation; the 
injury to their legal rights was alleged to be the harm caused by the 
limitation of liability in the event of a nuclear accident. The standing 
injury had occurred, the ripeness injury was conjectural and speculative 
and might never occur. See id., 102 (Justice Stevens concurring in the 
result). It is evident on the face of the opinion and expressly stated 
by the objecting Justices that the Court utilized its standing/ripeness 
analyses in order to reach the merits, so as to remove the 
constitutional cloud cast upon the federal law by the district court 
decision. Id., 95, 103 (Justices Rehnquist and Stevens concurring in the 

        Mootness.--It may be that a case presenting all the attributes 
necessary for federal court litigation will at some point lose some 
attribute of justiciability, will, in other words, become ``moot.'' The 
usual rule is that an actual controversy must exist at all stages of 
trial and appellate consideration and not simply at the date the action 
is initiated.\462\ ``Under Article III of the Constitution, federal 
courts may adjudicate only actual, ongoing cases or controversies. . . . 
Article III denies federal courts the power `to decide questions that 
cannot affect the rights of litigants in the case before them, . . . and 
confines them to resolving `real and substantial controvers[ies] 
admitting of specific relief through a decree of a conclusive character, 
as distinguished from an opinion advising what the law would be upon a 
hypothetical state of facts.' . . . This case-or-controversy requirement 
subsists through all stages of federal judicial proceedings, trial and 
appellate. To sustain our jurisdiction in the present case, it is not 
enough that a dispute was very much alive when suit was filed, or when 
review was obtained in the Court of Appeals. . . . The parties must 
continue to have a `personal stake in the outcome' of the 
lawsuit.''\463\ Since, with the ad

[[Page 680]]
vent of declaratory judgments, it is open to the federal courts to 
``declare the rights and other legal relations'' of the parties with res 
judicata effect,\464\ the question in cases alleged to be moot now seems 
largely if not exclusively to be decided in terms whether an actual 
controversy continues to exist between the parties rather than some 
additional older concepts.\465\

        \462\E.g., United States v. Munsingwear, 340 U.S. 36 (1950); 
Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee 
for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 
(1973); Sosna v. Iowa, 419 U.S. 393, 398-399 (1975); United States 
Parole Comm. v. Geraghty, 445 U.S. 388, 397 (1980), and id., 411 
(Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); 
Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 
494 U.S. 472, 477-478 (1990).
        \463\Lewis v. Continental Bank Corp., 494 U.S. 472,477-478 
(1990) (internal citations omitted). The Court's emphasis upon mootness 
as a constitutional rule mandated by Article III is long stated in the 
cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n. 3 (1964); DeFunis v. 
Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57 
(1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id., 332 
(Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 
424 U.S. 747, 756 n. 8 (1976) (referring to mootness as presenting 
policy rather than constitutional considerations). If this foundation 
exists, it is hard to explain the exceptions, which partake of practical 
reasoning. In any event, Chief Justice Rehnquist has argued that the 
mootness doctrine is not constitutionally based, or not sufficiently 
based only on Article III, so that the Court should not dismiss cases 
that have become moot after the Court has taken them for review. Honig, 
supra, 329 (concurring).
        \464\But see Steffel v. Thompson, 415 U.S. 452, 470-472 (1974); 
id., 477 (Justice White concurring), 482 n. 3 (Justice Rehnquist 
concurring) (on res judicata effect in state court in subsequent 
prosecution). In any event, the statute authorizes the federal court to 
grant ``[f]urther necessary or proper relief'' which could include 
enjoining state prosecutions.
        \465\Award of process and execution are no longer essential to 
the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 
227 (1937).

        Cases may become moot because of a change in the law,\466\ or in 
the status of the parties,\467\ or because of some act of one of the 
parties which dissolves the controversy.\468\ But the Court has 
developed several exceptions, which operate to prevent many of the cases 
in which mootness is alleged from being in law moot. Thus, in criminal 
cases, although the sentence of the convicted appellant has been served, 
the case ``is moot only if it is shown that there is no possibility that 
any collateral legal consequences will be imposed on the basis of the 
challenged conviction.''\469\ The ``mere possibility'' of such a 
consequence, even a ``remote'' one, is enough to find that one who has 
served his sentence has retained the req

[[Page 681]]
uisite personal stake giving his case ``an adversary cast and making it 
justiciable.''\470\ This exception has its counterpart in civil 
litigation in which a lower court judgment may still have certain 
present or future adverse effects on the challenging party.\471\

        \466\E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 13 
How. (54 U.S.) 518 (1852); United States v. Alaska Steamship Co., 253 
U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia, 
401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972); 
Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v. 
Continental Bank Corp., 494 U.S. 481 (1990). But compare City of 
Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 288-289 (1982) (case 
not mooted by repeal of ordinance, since City made clear its intention 
to reenact it if free from lower court judgment).
        \467\Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in 
challenge to laws regulating labor of youths 14 to 16, Court held case 
two-and-one-half years after argument and dismissed as moot since 
certainly none of the challengers was now in the age bracket); Golden v. 
Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); 
Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S. 
624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), 
with Vitek v. Jones, 445 U.S. 480 (1980).
        \468\E.g. Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); 
Oil Workers Local 8-6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling 
Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk, 
422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625 
        \469\Sibron v. New York, 395 U.S. 40, 50-58 (1968).
        \470\Benton v. Maryland, 395 U.S. 784, 790-791 (1969). The cases 
have progressed from leaning toward mootness to leaning strongly 
against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick 
v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S. 
502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v. 
New York, 390 U.S. 629, 633-634 n. 2 (1968); Sibron v. New York, 392 
U.S. 40, 49-58 (1968); but see Lane v. Williams, 455 U.S. 624 (1982). 
The exception permits review at the instance of the prosecution as well 
as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a 
convicted defendant dies while his case is on direct review, the Court's 
present practice is to dismiss the petition for certiorari. Dove v. 
United States, 423 U.S. 325 (1976), overruling Durham v. United States, 
401 U.S. 481 (1971).
        \471\Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 
(1911); Carroll v. President & Comrs. of Princess Anne, 393 U.S. 175 
(1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) 
(holding that expiration of strike did not moot employer challenge to 
state regulations entitling strikers to state welfare assistance since 
the consequences of the regulations would continue).

        A second exception, the ``voluntary cessation'' doctrine, 
focuses on whether challenged conduct which has lapsed or the 
utilization of a statute which has been superseded is likely to 
recur.\472\ Thus, cessation of the challenged activity by the voluntary 
choice of the person engaging in it, especially if he contends that he 
was properly engaging in it, will moot the case only if it can be said 
with assurance ``that `there is no reasonable expectation that the wrong 
will be repeated.'''\473\ Otherwise, ``[t]he defendant is free to return 
to his old ways'' and this fact would be enough to prevent mootness 
because of the ``public interest in having the legality of the practices 

        \472\United States v. Trans-Missouri Freight Assn., 166 U.S. 290 
(1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 
328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629 
(1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v. 
Concentrated Phosphate Export Assn., 393 U.S. 199, 202-204 (1969); 
DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. 
Davis, 440 U.S. 625, 631-634 (1979), and id., 641-646 (Justice Powell 
dissenting); Vitek v. Jones, 445 U.S. 480, 486-487 (1980), and id., 500-
501 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 
U.S. 100 (1982); City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 
283, 288-289 (1982).
        \473\United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) 
(quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 
(2d. Cir., 1945)).
        \474\United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). 
But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961).

        Still a third exception concerns the ability to challenge short-
term conduct which may recur in the future, which has been denominated 
as disputes ``capable of repetition, yet evading review.''\475\ Thus, in 
cases in which (1) the challenged action is too short in its duration to 
be fully litigated prior to its cessation or expiration, and (2) there 
is a reasonable expectation that the same

[[Page 682]]
complaining party would be subjected to the same action again, mootness 
will not be found when the complained-of conduct ends.\476\ The 
imposition of short sentences in criminal cases,\477\ the issuance of 
injunctions to expire in a brief period,\478\ and the short-term factual 
context of certain events, such as elections\479\ or pregnancies,\480\ 
are all instances in which this exception is frequently invoked.

        \475\Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 
        \476\Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. 
Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. 
McCorkle, 416 U.S. 115, 125-126 (1974), and id., 130-132 (Justice Powell 
dissenting). The degree of expectation or likelihood that the issue will 
recur has frequently divided the Court. Compare Murphy v. Hunt, supra, 
with Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976); compare Honig 
v. Doe, 484 U.S. 305, 318-323 (1988), with id., 332 (Justice Scalia 
        \477\Sibron v. New York, 392 U.S. 40, 49-58 (1968). See Gerstein 
v. Pugh, 420 U.S. 103 (1975).
        \478\Carroll v. President & Comrs. of Princess Anne, 393 U.S. 
175 (1968). See Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976) 
(short-term court order restricting press coverage).
        \479\E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario 
v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Storer v. Brown, 415 U.S. 
724, 737 n. 8 (1974). Compare Mills v. Green, 159 U.S. 651 (1895); Ray 
v. Blair, 343 U.S. 154 (1952).
        \480\Roe v. Wade, 410 U.S. 113, 124-125 (1973).

        An interesting and potentially significant liberalization of the 
law of mootness, perhaps as part of a continuing circumstances 
exception, is occurring in the context of class action litigation. It is 
now clearly established that, when the controversy becomes moot as to 
the plaintiff in a certified class action, it still remains alive for 
the class he represents so long as an adversary relationship sufficient 
to constitute a live controversy between the class members and the other 
party exists.\481\ The Court was closely divided, however, with respect 
to the right of the named party, when the substantive controversy became 
moot as to him, to appeal as error the denial of a motion to certify the 
class which he sought to represent and which he still sought to 
represent. The Court held that in the class action setting there are two 
aspects of the Article III mootness question, the existence of a live 
controversy and the existence of a personal stake in the outcome for the 
named class representative.\482\ Finding a live controversy, the Court 
determined that the named plaintiff retained a sufficient interest, ``a 

[[Page 683]]
stake,'' in his claimed right to represent the class in order to satisfy 
the ``imperatives of a dispute capable of judicial resolution;'' that 
is, his continuing interest adequately assures that ``sharply presented 
issues'' are placed before the court ``in a concrete factual setting'' 
with ``self-interested parties vigorously advocating opposing 

        \481\Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman 
Transp. Co., 424 U.S. 747, 752-757 (1976). A suit which proceeds as a 
class action but without formal certification may not receive the 
benefits of this rule. Board of School Comrs. v. Jacobs, 420 U.S. 128 
(1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena 
City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the 
characterization of these cases in United States Parole Comm. v. 
Geraghty, 445 U.S. 388, 400 n. 7 (1980). Mootness is not necessarily 
avoided in properly certified cases, but the standards of determination 
are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).
        \482\United States Parole Comm. v. Geraghty, 445 U.S. 388, 396 
        \483\Id., 403. Justices Powell, Stewart, Rehnquist, and Chief 
Justice Burger dissented, Id., 409, arguing there could be no Article 
III personal stake in a procedural decision separate from the outcome of 
the case. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326 
(1980), in an opinion by Chief Justice Burger, the Court held that a 
class action was not mooted when defendant tendered to the named 
plaintiffs the full amount of recovery they had individually asked for 
and could hope to retain. Plaintiffs' interest in shifting part of the 
share of costs of litigation to those who would share in its benefits if 
the class were certified was deemed to be a sufficient ``personal 
stake,'' although the value of this interest was at best speculative.

        The immediate effect of the decision is that litigation in which 
class actions are properly certified or in which they should have been 
certified will rarely ever be mooted if the named plaintiff (or in 
effect his attorney) chooses to pursue the matter, even though the named 
plaintiff can no longer obtain any personal relief from the decision 
sought.\484\ Of much greater potential significance is the possible 
extension of the weakening of the ``personal stake'' requirement in 
other areas, such as the representation of third-party claims in non-
class actions and the initiation of some litigation in the form of a 
``private attorneys general'' pursuit of adjudication.\485\ It may be 
that the evolution in this area will be confined to the class action 
context, but cabining of a ``flexible'' doctrine of standing may be 

        \484\The named plaintiff must still satisfy the class action 
requirement of adequacy of representation. United States Parole Comm. v. 
Geraghty, 445 U.S. 388, 405-407 (1980). On the implications of Geraghty, 
which the Court has not returned to, see Hart & Wechsler, op. cit., 
n.250, 225-230.
        \485\Geraghty, supra, 445 U.S., 404 and n. 11.
        \486\Id., 419-424 (Justice Powell dissenting).

        Retroactivity Versus Prospectivity.--One of the distinguishing 
features of an advisory opinion is that it lays down a rule to be 
applied to future cases, much as does legislation generally. It should 
therefore follow that an Article III court could not decide purely 
prospective cases, cases which do not govern the rights and disabilities 
of the parties to the cases.\487\ The Court asserted that this principle 
is true, while applying it only to give retroactive effect to the 
parties to the immediate case.\488\ Yet, occasionally, the

[[Page 684]]
Court did not apply its holding to the parties before it,\489\ and in a 
series of cases beginning in the mid-1960s it became embroiled in 
attempts to limit the retroactive effect of its--primarily but not 
exclusively\490\--constitutional-criminal law decisions. The results 
have been confusing and unpredictable.\491\

        \487\For a masterful discussion of the issue in both criminal 
and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity, 
and Constitutional Remedies, 104 Harv. L. Rev. 1731 (1991).
        \488\Stovall v. Denno, 388 U.S. 293, 301 (1967).
        \489\England v. Louisiana State Board of Medical Examiners, 375 
U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See 
also Morrissey v. Brewer, 408 U.S. 471, 490 (1972).
        \490\Noncriminal constitutional cases included Lemon v. 
Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S. 
204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in 
Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. 
v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the 
effectiveness of its decision for a period during which Congress could 
repair the flaws in the statute. Noncriminal, nonconstitutional cases 
include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State 
Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe 
Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S. 
13 (1964).
        \491\Because of shifting coalitions of Justices, Justice Harlan 
complained, the course of retroactivity decisions ``became almost as 
difficult to follow as the tracks made by a beast of prey in search of 
its intended victim.'' Mackey v. United States, 401 U.S. 667, 676 (1971) 
(separate opinion).

        Prior to 1965, ``both the common law and our own decisions 
recognized a general rule of retrospective effect for the constitutional 
decisions of this Court . . . subject to [certain] limited 
exceptions.''\492\ Statutory and judge-made law have consequences, at 
least to the extent that people must rely on them in making decisions 
and shaping their conduct. Therefore, the Court was moved to recognize 
that there should be a reconciling of constitutional interests reflected 
in a new rule of law with reliance interests founded upon the old.\493\ 
In both criminal and civil cases, however, the Court's discretion to do 
so has been constrained by later decisions.

        \492\Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule 
of retroactivity derived from the Blackstonian notion ``that the duty of 
the court was not to `pronounce a new law, but to maintain and expound 
the old one.''' Linkletter v. Walker, 381 U.S. 618, 622-623 (1965) 
(quoting 1 W. Blackstone, Commentaries *69).
        \493\Lemon v. Kurtzman, 411 U.S. 192, 198-199 (1973).

        When in the 1960s the Court began its expansion of the Bill of 
Rights and applied the rulings to the States, a necessity arose to 
determine the application of the rulings to criminal defendants who had 
exhausted all direct appeals but who could still resort to habeas 
corpus, to those who had been convicted but still were on direct appeal, 
and to those who had allegedly engaged in conduct but who had not gone 
to trial. At first, the Court drew the line at cases in which judgments 
of conviction were not yet final, so that all persons in those 
situations obtained retrospective use of decisions,\494\ but the Court 
then promulgated standards for a balancing process that resulted in 
different degrees of retroactivity in dif

[[Page 685]]
ferent cases.\495\ Generally, in cases in which the Court declared a 
rule which was ``a clear break with the past,'' it denied retroactivity 
to all defendants, with the sometime exception of the appellant 
himself.\496\ With respect to certain cases in which a new rule was 
intended to overcome an impairment of the truth-finding function of a 
criminal trial\497\ or to cases in which the Court found that a 
constitutional doctrine barred the conviction or punishment of 
someone,\498\ full retroactivity, even to habeas claimants, was the 
rule. Justice Harlan strongly argued that the Court should sweep away 
its confusing balancing rules and hold that all defendants whose cases 
are still pending on direct appeal at the time of a law-changing 
decision should be entitled to invoke the new rule, but that no habeas 
claimant should be entitled to benefit.\499\

        \494\Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United 
States ex rel. Shott, 382 U.S. 406 (1966).
        \495\Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. 
Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972).
        \496\Desist v. United States, 394 U.S. 224, 248 (1969); United 
States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 
323, 335-336 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 
55 (1973); United States v. Johnson, 457 U.S. 537, 549-550, 551-552 
        \497\Williams v. United States, 401 U.S. 646, 653 (1971) 
(plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328-330 (1980) 
(plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 
        \498\United States v. United States Coin & Currency, 401 U.S. 
715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson 
v. Neil, 409 U.S. 505, 509 (1973).
        \499\Mackey v. United States, 401 U.S. 667, 675 (1971) (separate 
opinion); Desist v. United States, 394 U.S. 244, 256 (1969) 
(dissenting). Justice Powell also strongly supported the proposed rule. 
Hankerson v. North Carolina, 432 U.S. 233, 246-248 (1977) (concurring in 
judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in 

        The Court has now drawn a sharp distinction between criminal 
cases pending on direct review and cases pending on collateral review. 
For cases on direct review, ``a new rule for the conduct of criminal 
prosecutions is to be applied retroactively to all cases, state or 
federal, pending on direct review or not yet final, with no exception 
for cases in which the new rule constitutes a `clear break' with the 
past.''\500\ Justice Harlan's habeas approach was then adopted by a 
plurality in Teague v. Lane\501\ and then by the Court in Penry v. 
Lynaugh.\502\ Thus, for collateral review in federal courts of state 
court criminal convictions, the general rule is that ``new rules'' of 
constitutional interpretation, those that break new ground or impose a 
new obligation on the States or the Federal Government, announced after 
a defendant's conviction has become final will not be applied. For such 
habeas cases, a ``new rule'' is defined very broadly to include 
interpretations that are a logical outgrowth or application of an 
earlier rule unless the result was ``dic

[[Page 686]]
tated'' by that precedent.\503\ The only exceptions are for decisions 
placing certain conduct or defendants beyond the reach of the criminal 
law, and for decisions recognizing a fundamental procedural right 
``without which the likelihood of an accurate conviction is seriously 

        \500\Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
        \501\489 U.S. 288 (1989).
        \502\492 U.S. 302 (1989).
        \503\Penry, supra, 492 U.S., 314. Put another way, it is not 
enough that a decision is ``within the `logical compass' of an earlier 
decision, or indeed that it is `controlled' by a prior decision.'' A 
decision announces a ``new rule'' if its result ``was susceptible to 
debate among reasonable minds'' and if it was not ``an illogical or even 
a grudging application'' of the prior decision. Butler v. McKellar, 494 
U.S. 407, 412-415 (1990).
        \504\Teague v. Lane, 489 U.S. 288, 307, 311-313 (1989) 
(plurality opinion); Butler v. McKellar, 494 U.S. 407, 415-416 (1990). 
Under the second exception it is ``not enough that a new rule is aimed 
at improving the accuracy of a trial. . . . A rule that qualifies under 
this exception must not only improve accuracy, but also `alter our 
understanding of the bedrock procedural elements' essential to the 
fairness of a proceeding.'' Sawyer v. Smith, 497 U.S. 227, 242 (1990) 
(emphasis in original).

        What the rule is to be, and indeed if there is to be a rule, in 
civil cases has been disputed to a rough draw in recent cases. As was 
noted above, there is a line of civil cases, constitutional and 
nonconstitutional, in which the Court has declined to apply new rules, 
the result often of overruling older cases, retrospectively, sometimes 
even to the prevailing party in the case.\505\ As in criminal cases, the 
creation of new law, through overrulings or otherwise, may result in 
retroactivity in all instances, in pure prospectivity, or in partial 
prospectivity in which the prevailing party obtains the results of the 
new rule but no one else does. In two cases raising the question when 
States are required to refund taxes collected under a statute that is 
subsequently ruled to be unconstitutional, the Court revealed itself to 
be deeply divided.\506\ The question in Beam was whether the company 
could claim a tax refund under an earlier ruling holding 
unconstitutional the imposition of certain taxes upon its products. The 
holding of a fractionated Court was that it could seek a refund, because 
in the earlier ruling the Court had applied the holding to the 

[[Page 687]]
company and once a new rule has been applied retroactively to the 
litigants in a civil case considerations of equality and stare decisis 
compel application to all.\507\ While partial or selective prospectivity 
is thus ruled out, neither pure retroactivity or pure prospectivity is 
either required or forbidden.

        \505\The standard that has been applied was enunciated in 
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Briefly, the question of 
retroactivity or prospectivity was to be determined by a balancing of 
the equities. To be limited to prospectivity, a decision must have 
established a new principle of law, either by overruling clear past 
precedent on which reliance has been had or by deciding an issue of 
first impression whose resolution was not clearly foreshadowed. The 
courts must look to the prior history of the rule in question, its 
purpose and effect, and whether retrospective operation will further or 
retard its operation. Then, the courts must look to see whether a 
decision to apply retroactively a decision will produce substantial 
inequitable results. Id., 106-107. American Trucking Assns., Inc. v. 
Smith, 496 U.S. 167, 179-186 (1990) (plurality opinion).
        \506\James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 
(1991); American Trucking Assns., Inc. v. Smith, 496 U.S. 167 (1990). 
And, of course, the retirements since the decisions were handed down 
further complicate discerning the likely Court position.
        \507\Beam, supra. The holding described in the text is expressly 
that of only a two-Justice plurality. Id., 501 U.S., 534-544 (Justices 
Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia 
(with Justice Marshall joining the latter Justices) concurred, id., 544, 
547, 548 (respectively), but on other, and in the instance of the three 
latter Justices, and broader justifications. Justices O'Connor and 
Kennedy and Chief Justice Rehnquist dissented. Id., 549.

        Four Justices adhered to the principle that new law, new rules, 
as defined above, may be applied purely prospectively, without violating 
any tenet of Article III or any other constitutional value.\508\ Three 
Justices argued that all prospectivity, whether partial or total, 
violates Article III by expanding the jurisdiction of the federal courts 
beyond true cases and controversies.\509\ Future cases must, therefore, 
be awaited for resolution of this issue.

        \508\Beam, supra, 501 U.S., 549 (dissenting opinion of Justices 
O'Connor and Kennedy and Chief Justice Rehnquist), and id., 544 (Justice 
White concurring). And see Smith, supra, 496 U.S., 171 (plurality 
opinion of Justices O'Connor, White, Kennedy, and Chief Justice 
        \509\Beam, supra, 501 U.S., 547, 548 (Justices Blackmun, Scalia, 
and Marshall concurring). These three Justices, in Smith, supra, 496 
U.S., 205, had joined the dissenting opinion of Justice Stevens arguing 
that constitutional decisions must be given retroactive effect.
      Political Questions

        It may be that there will be a case assuredly within the Court's 
jurisdiction presented by parties with standing in which adverseness and 
ripeness will exist, a case in other words presenting all the 
qualifications we have considered making it a justiciable controversy, 
which the Court will nonetheless refuse to adjudicate. The ``label'' for 
such a case is that it presents a ``political question.'' Although the 
Court has referred to the political question doctrine as ``one of the 
rules basic of the federal system and this Court's appropriate place 
within that structure,''\510\ a commentator has remarked that ``[i]t is, 
measured by any of the normal responsibilities of a phrase of 
definition, one of the least satisfactory terms known to the law. The 
origin, scope, and purpose of the concept have eluded all attempts at 
precise statements.''\511\ That the concept of political questions may 
be ``more amenable to description by infinite

[[Page 688]]
itemization than by generalization''\512\ is generally true, although 
the Court's development of rationale in Baker v. Carr\513\ has changed 
this fact radically, but the doctrine may be approached in two ways, by 
itemization of the kinds of questions that have been labeled political 
and by isolation of the factors that have led to the labeling.

        \510\Rescue Army v. Municipal Court, 331 U.S. 549, 570 (1947); 
cf. Baker v. Carr, 369 U.S. 186, 278 (1962) (Justice Frankfurter 
dissenting). The most successful effort at conceptualization of the 
doctrine is Scharpf, Judicial Review and the Political Question: A 
Functional Analysis, 75 Yale L.J. 517 (1966). See Hart & Wechsler, op. 
cit., n. 250, 270-294.
        \511\Frank, Political Questions, in E. Cahn (ed.), Supreme Court 
and Supreme Law (Bloomington: 1954), 36.
        \513\Baker v. Carr, 369 U.S. 186, 208-232 (1962).

        Origins and Development.--In Marbury v. Madison,\514\ Chief 
Justice Marshall stated: ``The province of the court is, solely, to 
decide on the rights of individuals, not to inquire how the executive, 
or executive officers, perform duties in which they have a discretion. 
Questions in their nature political, or which are, by the constitution 
and laws, submitted to the executive can never be made in this 

        \514\1 Cr. (5 U.S.) 137, 170 (1803).
        \515\In Decatur v. Paulding, 14 Pet. (39 U.S.) 497, 516 (1840), 
the Court, refusing an effort by mandamus to compel the Secretary of the 
Navy to pay a pension, said: ``The interference of the courts with the 
performance of the ordinary duties of the executive departments of the 
government, would be productive of nothing but mischief; and we are 
quite satisfied, that such a power was never intended to be given to 
them.'' It therefore follows that mandamus will lie against an executive 
official only to compel the performance of a ministerial duty, which 
admits of no discretion, and may not be invoked to control executive or 
political duties which admit of discretion. See Georgia v. Stanton, 6 
Wall. (73 U.S.) 50 (1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 
(1867); Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 

        But the doctrine was asserted even earlier as the Court in Ware 
v. Hylton\516\ refused to pass on the question whether a treaty had been 
broken. And in Martin v. Mott,\517\ the Court held that the President 
acting under congressional authorization had exclusive and unreviewable 
power to determine when the militia should be called out. But it was in 
Luther v. Borden\518\ that the concept was first enunciated as a 
doctrine separate from considerations of interference with executive 
functions. This case presented the question of the claims of two 
competing factions to be the only lawful government of Rhode Island 
during a period of unrest in 1842.\519\ Chief Justice Taney began by 
saying that the answer was primarily a matter of state law that had been 
decided in favor of one faction by the state courts.\520\

        \516\3 Dall. (3 U.S.) 199 (1796).
        \517\12 Wheat. (25 U.S.) 19 (1827).
        \518\7 How. (48 U.S.) 1 (1849).
        \519\Cf. Baker v. Carr, 369 U.S. 186, 218-222 (1962); id., 292-
297 (Justice Frankfurter dissenting).
        \520\Luther v. Borden, 7 How. (48 U.S.) 1, 40 (1849).

        Insofar as the Federal Constitution had anything to say on the 
subject, the Chief Justice continued, that was embodied in the

[[Page 689]]
clause empowering the United States to guarantee to every State a 
republican form of government,\521\ and this clause committed 
determination of the issue to the political branches of the Federal 
Government. ``Under this article of the Constitution it rests with 
Congress to decide what government is the established one in a State. 
For as the United States guarantee to each State a republican 
government, Congress must neccessarily decide what government is 
established in the State before it can determine whether it is 
republican or not. And when the senators and representatives of a State 
are admitted into the councils of the Union, the authority of the 
government under which they are appointed, as well as its republican 
character, is recognized by the proper constitutional authority. And its 
decision is binding on every other department of the government, and 
could not be questioned in a judicial tribunal.''\522\ Here, the contest 
had not proceeded to a point where Congress had made a decision, ``[y]et 
the right to decide is placed there, and not in the courts.''\523\

        \521\Id., 42 (citing Article IV, Sec. 4).

        Moreover, in effectuating the provision in the same clause that 
the United States should protect them against domestic violence, 
Congress had vested discretion in the President to use troops to protect 
a state government upon the application of the legislature or the 
governor. Before he could act upon the application of a legislature or a 
governor, the President ``must determine what body of men constitute the 
legislature, and who is the governor. . . .'' No court could review the 
President's exercise of discretion in this respect; no court could 
recognize as legitimate a group vying against the group recognized by 
the President as the lawful government.\524\ Although the President had 
not actually called out the militia in Rhode Island, he had pledged 
support to one of the competing governments, and this pledge of military 
assistance if it were needed had in fact led to the capitulation of the 
other faction, thus making an effectual and authoritative determination 
not reviewable by the Court.\525\

        \524\Id., 43.
        \525\Id., 44.

        The Doctrine Before Baker v. Carr.--Over the years, the 
political question doctrine has been applied to preclude adjudication of 
a variety of issues. Certain factors appear more or less consistently 
through most but not all of these cases, and it is perhaps best to 
indicate the cases and issues deemed political before attempting to 
isolate these factors.

[[Page 690]]

        (1) By far the most consistent application of the doctrine has 
been in cases in which litigants asserted claims under the republican 
form of government clause,\526\ whether the attack was on the government 
of the State itself\527\ or on some manner in which it had acted,\528\ 
but there have been cases in which the Court has reached the 

        \526\Article IV, Sec. 4.
        \527\As it was on the established government of Rhode Island in 
Luther v. Borden, 7 How. (48 U.S.) 1 (1849). See also Texas v. White, 7 
Wall. (74 U.S.) 700 (1869); Taylor v. Beckham, 178 U.S. 548 (1900).
        \528\Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); 
Kiernan v. City of Portland, 223 U.S. 151 (1912) (attacks on initiative 
and referendum); Marshall v. Dye, 231 U.S. 250 (1913) (state 
constitutional amendment procedure); O'Neill v. Leamer, 239 U.S. 244 
(1915) (delegation to court to form drainage districts); Ohio ex rel. 
Davis v. Hildebrant, 241 U.S. 565 (1916) (submission of legislation to 
referendum); Mountain Timber Co. v. Washington, 243 U.S. 219 (1917) 
(workmen's compensation); Ohio ex rel. Bryant v. Akron Metropolitan Park 
District, 281 U.S. 74 (1930) (concurrence of all but one justice of 
state high court required to invalidate statute); Highland Farms Dairy 
v. Agnew, 300 U.S. 608 (1937) (delegation of legislative powers).
        \529\All the cases, however, predate the application of the 
doctrine in Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912). See 
Attorney General of the State of Michigan ex rel. Kies v. Lowrey, 199 
U.S. 233, 239 (1905) (legislative creation and alteration of school 
districts ``compatible'' with a republican form of government); Forsyth 
v. City of Hammond, 166 U.S. 506, 519 (1897) (delegation of power to 
court to determine municipal boundaries does not infringe republican 
form of government); Minor v. Happersett, 21 Wall (88 U.S.) 162, 175-176 
(1875) (denial of suffrage to women no violation of republican form of 

        (2) Although there is language in the cases that would if 
applied make all questions touching on foreign affairs and foreign 
policy political,\530\ whether the courts have adjudicated a dispute in 
this area has often depended on the context in which it arises. Thus, 
the determination by the President whether to recognize the government 
of a foreign state\531\ or who is the de jure or de facto ruler of a 
foreign state\532\ is conclusive on the courts, but in the absence of a 
definitive executive action the courts will review the record to 
determine whether the United States has accorded a sufficient degree of 
recognition to allow the courts to take judicial notice of the existence 
of the state.\533\ Moreover, the courts have often determined for 
themselves what effect, if any, should be accorded the acts of foreign 
powers, recognized or unrecognized.\534\ Simi

[[Page 691]]
larly, the Court when dealing with treaties and the treaty power has 
treated as political questions whether the foreign party had 
constitutional authority to assume a particular obligation\535\ and 
whether a treaty has lapsed because of the foreign state's loss of 
independence\536\ or because of changes in the territorial sovereignty 
of the foreign state,\537\ but the Court will not only interpret the 
domestic effects of treaties,\538\ it will at times interpret the 
effects bearing on international matters.\539\ The Court has deferred to 
the President and Congress with regard to the existence of a state of 
war and the dates of the beginning and ending and of states of 
belligerency between foreign powers, but the deference has sometimes 
been forced.\540\

        \530\Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); 
Chicago & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 
        \531\United States v. Palmer, 3 Wheat. (16 U.S.) 610 (1818); 
Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852).
        \532\Jones v. United States, 137 U.S. 202 (1890); Oetjen v. 
Central Leather Co., 246 U.S. 297 (1918). See Ex parte Hitz, 111 U.S. 
766 (1884).
        \533\United States v. The Three Friends, 166 U.S. 1 (1897); In 
re Baiz, 135 U.S. 403 (1890). Cf. Banco Nacional de Cuba v. Sabbatino, 
376 U.S. 398 (1964).
        \534\United States v. Reynes, 9 How. (50 U.S.) 127 (1850); 
Garcia v. Lee, 12 Pet. (37 U.S.) 511 (1838); Keene v. McDonough, 8 Pet. 
(33 U.S.) 308 (1834). See also Williams v. Suffolk Ins. Co., 13 Pet. (38 
U.S.) 415 (1839); Underhill v. Hernandez, 168 U.S. 250 (1897). But see 
United States v. Belmont, 301 U.S. 324 (1937). On the ``act of State'' 
doctrine, compare Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 
(1964), with First National City Bank v. Banco Nacional de Cuba, 406 
U.S. 759 (1972). And see First National City Bank v. Banco Para el 
Comercio de Cuba, 462 U.S. 611 (1983); W. S. Kirkpatrick Co. v. 
Environmental Tectronics Corp., 493 U.S. 400 (1990)
        \535\Doe v. Braden, 16 How. (57 U.S.) 635 (1853).
        \536\Terlinden v. Ames, 184 U.S. 270 (1902); Clark v. Allen, 331 
U.S. 503 (1947).
        \537\Kennett v. Chambers, 14 How. (55 U.S.) 38 (1852). On the 
effect of a violation by a foreign state on the continuing effectiveness 
of the treaty, see Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796); Charlton 
v. Kelly, 229 U.S. 447 (1913).
        \538\Ware v. Hylton, 3 Dall. (3 U.S.) 199 (1796). Cf. Chinese 
Exclusion Cases, 130 U.S. 581 (1889) (conflict of treaty with federal 
law). On the modern formulation, see Japan Whaling Assn. v. American 
Cetacean Society, 478 U.S. 221, 229-230 (1986).
        \539\Perkins v. Elg, 307 U.S. 325 (1939); United States v. 
Rauscher, 119 U.S. 407 (1886).
        \540\Commercial Trust Co v. Miller, 262 U.S. 51 (1923); Woods v. 
Miller Co., 333 U.S. 138 (1948); Chastleton Corp. v. Sinclair, 264 U.S. 
543 (1924); Ludecke v. Watkins, 335 U.S. 160 (1948); Lee v. Madigan, 358 
U.S. 228 (1959); The Divina Pastora, 4 Wheat. (17 U.S.) 52 (1819). The 
cases involving the status of Indian tribes as foreign states usually 
have presented political questions but not always. The Cherokee Nation 
v. Georgia, 5 Pet. (30 U.S.) 1 (1831); United States v. Sandoval, 231 
U.S. 28 (1913); Worcester v. Georgia, 6 Pet. (31 U.S.) 515 (1832).

        (3) Ordinarily, the Court will not look behind the fact of 
certification that the standards requisite for the enactment of 
legislation\541\ or ratification of a constitutional amendment\542\ have 
in fact been met, although it will interpret the Constitution to deter

[[Page 692]]
mine what the basic standards are,\543\ and it will decide certain 
questions if the political branches are in disagreement.\544\

        \541\Field v. Clark, 143 U.S. 649 (1892); Harwood v. Wentworth, 
162 U.S. 547 (1896); cf. Gardner v. The Collector, 6 Wall. (73 U.S.) 499 
(1868). See, for the modern formulation, United States v. Munoz-Flores, 
495 U.S. 385 (1990).
        \542\Coleman v. Miller, 307 U.S. 433 (1939) (Congress' 
discretion to determine what passage of time will cause an amendment to 
lapse and effect of previous rejection by legislature).
        \543\Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919); Rainey 
v. United States, 232 U.S. 310 (1914); Flint v. Stone Tracy Co., 220 
U.S. 107 (1911); Twin City Bank v. Nebeker, 167 U.S. 196 (1897); Lyons 
v. Woods, 153 U.S. 649 (1894); United States v. Ballin, 144 U.S. 1 
(1892) (statutes); United States v. Sprague, 282 U.S. 716 (1931); Leser 
v. Garnett, 258 U.S. 130 (1922); Dillon v. Gloss, 256 U.S. 368 (1921); 
Hawke v. Smith, 253 U.S. 221 (1920); National Prohibition Cases, 253 
U.S. 350 (1920); Hollingsworth v. Virginia, 3 Dall. (3 U.S.) 378 (1798) 
(constitutional amendments).
        \544\Pocket Veto Case, 279 U.S. 655 (1929); Wright v. United 
States, 302 U.S. 583 (1938).

        (4) Prior to Baker v. Carr,\545\ cases challenging the 
distribution of political power through apportionment and 
districting,\546\ weighed voting,\547\ and restrictions on political 
action\548\ were held to present nonjusticiable political questions.

        \545\369 U.S. 186 (1962).
        \546\Colegrove v. Green, 328 U.S. 549 (1946); Colegrove v. 
Barrett, 330 U.S. 804 (1947).
        \547\South v. Peters, 339 U.S. 276 (1950) (county unit system 
for election of statewide officers with vote heavily weighed in favor of 
rural, lightly-populated counties).
        \548\MacDougall v. Green, 335 U.S. 281 (1948) (signatures on 
nominating petitions must be spread among counties of unequal 

        From this limited review of the principal areas in which the 
political question doctrine seemed most established, it is possible to 
extract some factors that seemingly convinced the courts that the issues 
presented went beyond the judicial responsibility. These factors, 
necessarily stated baldly in so summary a fashion, would appear to be 
the lack of requisite information and the difficulty of obtaining 
it,\549\ the necessity for uniformity of decision and deferrence to the 
wider responsibilities of the political departments,\550\ and the lack 
of adequate standards to resolve a dispute.\551\ But present in all the 
political cases was (and is) the most important factor, a ``prudential'' 
attitude about the exercise of judicial review, which emphasizes that 
courts should be wary of deciding on the merits any issue in which 
claims of principle as to the issue and of expediency as to the power 
and prestige of courts are in sharp conflict. The political question 
doctrine was (and is) thus a way of avoiding a principled decision 
damaging to the Court or an expedient decision damaging to the 

        \549\Thus, see, e.g., Chicago & S. Air Lines v. Waterman 
Steamship Corp., 333 U.S. 103, 111 (1948); Coleman v. Miller, 307 U.S. 
433, 453 (1939).
        \550\Thus, see, e.g., Williams v. Suffolk Ins. Co., 13 Pet. (38 
U.S.) 415, 420 (1839). Similar considerations underlay the opinion in 
Luther v. Borden, 7 How. (48 U.S.) 1 (1849), in which Chief Justice 
Taney wondered how a court decision in favor of one faction would be 
received with Congress seating the representatives of the other faction 
and the President supporting that faction with military force.
        \551\Baker v. Carr, 369 U.S. 186, 217, 226 (1962) (opinion of 
the Court); id., 268, 287, 295, (Justice Frankfurter dissenting.)
        \552\For a statement of the ``prudential'' view, see generally 
A. Bickel, The Least Dangerous Branch--The Supreme Court at the Bar of 
Politics (New York: 1962), but see esp. 23-28, 69-71, 183-198. See also 
Baker v. Carr, 369 U.S. 186, 267 (1962) (Justice Frankfurter 
dissenting.) The opposing view, which has been called the ``classicist'' 
view, is that courts are duty bound to decide all cases properly before 
them. Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 404 (1821). See also 
H. Wechsler, Principles, Politics, and Fundamental Law--Selected Essays 
(Cambridge: 1961), 11-15.


[[Page 693]]

        Baker v. Carr.--In Baker v. Carr,\553\ the Court undertook a 
major rationalization and formulation of the political question 
doctrine, which has considerably narrowed its application. Following 
Baker, the whole of the apportionment-districting-election restriction 
controversy previously immune to federal-court adjudication was 
considered and decided on the merits,\554\ and the Court's more recent 
rejection of the doctrine discloses the narrowing in other areas as 

        \553\369 U.S. 186 (1962).
        \554\Wesberry v. Sanders, 376 U.S. 1 (1964); Reynolds v. Sims, 
377 U.S. 533 (1964); Hadley v. Junior College District, 397 U.S. 50 
(1970) (apportionment and districting, congressional, legislative, and 
local); Gray v. Sanders, 372 U.S. 368 (1963) (county unit system 
weighing statewide elections); Moore v. Ogilvie, 394 U.S. 814 (1969) 
(geographic dispersion of persons signing nominating petitions).
        \555\Powell v. McCormack, 395 U.S. 486 (1969). Nonetheless, the 
doctrine continues to be sighted.

        According to Justice Brennan, who delivered the opinion of the 
Court, ``it is the relationship between the judiciary and the coordinate 
branches of the Federal Government, and not the federal judiciary's 
relationship to the States, which gives rise to the `political 
question.'''\556\ Thus, the ``nonjusticiability of a political question 
is primarily a function of the separation of powers.''\557\ ``Deciding 
whether a matter has in any measure been committed by the Constitution 
to another branch of government, or whether the action of that branch 
exceeds whatever authority has been committed, is itself a delicate 
exercise in constitutional interpretation, and is a responsibility of 
this Court as ultimate interpreter of the Constitution.''\558\ Following 
a discussion of several areas in which the doctrine had been used, 
Justice Brennan continued: ``It is apparent that several formulations 
which vary slightly according to the settings in which the questions 
arise may describe a political question,

[[Page 694]]
although each has one or more elements which identify it as essentially 
a function of the separation of powers.

        \556\Baker v. Carr, 369 U.S. 186, 210 (1962). This formulation 
fails to explain cases like Moyer v. Peabody, 212 U.S. 78 (1909), in 
which the conclusion of the Governor of a State that insurrection 
existed or was imminent justifying suspension of constitutional rights 
was deemed binding on the Court. Cf. Sterling v. Constantin, 287 U.S. 
378 (1932). The political question doctrine was applied in cases 
challenging the regularity of enactments of territorial legislatures. 
Harwood v. Wentworth, 162 U.S. 547 (1896); Lyons v. Woods, 153 U.S. 649 
(1894); Clough v. Curtis, 134 U.S. 361 (1890). See also In re Sawyer, 
124 U.S. 200 (1888); Walton v. House of Representatives, 265 U.S. 487 
        \557\Id., 369 U.S., 210.
        \558\Id., 211.

        ``Prominent on the surface of any case held to involve a 
political question is found a textually demonstrable constitutional 
commitment of the issue to a coordinate political department; or a lack 
of judicially discoverable and manageable standards for resolving it; or 
the impossibility of deciding without an initial policy determination of 
a kind clearly for nonjudicial discretion; or the impossibility of a 
court's undertaking independent resolution without expressing lack of 
the respect due coordinate branches of government; or an unusual need 
for unquestioning adherence to a political decision already made; or the 
potentiality of embarrassment from multifarious pronouncements by 
various departments on one question.''\559\

        \559\Id., 217. It remains unclear after Baker whether the 
political question doctrine is applicable solely to intrafederal issues 
or only primarily, so that the existence of one or more of these factors 
in a case involving, say, a State, might still give rise to 
nonjusticiability. At one point, id., 210, Justice Brennan says that 
nonjusticiability of a political question is ``primarily'' a function of 
separation of powers but in the immediately preceding paragraph he 
states that ``it is'' the intrafederal aspect ``and not the federal 
judiciary's relationship to the States'' that raises political 
questions. But subsequently, id., 226, he balances the present case, 
which involves a State and not a branch of the Federal Government, 
against each of the factors listed in the instant quotation and notes 
that none apply. His discussion of why guarantee clause cases are 
political presents much the same difficulty, id., 222-226, inasmuch as 
he joins the conclusion that the clause commits resolution of such 
issues to Congress with the assertion that the clause contains no 
``criteria by which a court could determine which form of government was 
republican,'' id., 222, a factor not present when the equal protection 
clause is relied on. Id., 226.

        Powell v. McCormack.--Because Baker had apparently restricted 
the political question doctrine to intrafederal issues, there was no 
discussion of the doctrine when the Court held that it had power to 
review and overturn a state legislature's refusal to seat a member-elect 
because of his expressed views.\560\ But in Powell v. McCormack,\561\ 
the Court was confronted with a challenge to the exclusion of a member-
elect by the United States House of Representatives. Its determination 
that the political question doctrine did not bar its review of the 
challenge indicates the narrowness of application of the doctrine in its 
present state. Taking Justice Brennan's formulation in Baker of the 
factors that go to make up a political question,\562\ Chief Justice 
Warren determined that the only critical one in this case was whether 
there was a ``textually demonstrable constitutional commitment'' to the 
House to determine in its sole discretion the qualifications of 
members.\563\ In

[[Page 695]]
order to determine whether there was a textual commitment, the Court 
reviewed the Constitution, the Convention proceedings, and English and 
United States legislative practice to ascertain what power had been 
conferred on the House to judge the qualifications of its members; 
finding that the Constitution vested the House with power only to look 
at the qualifications of age, residency, and citizenship, the Court thus 
decided that in passing on Powell's conduct and character the House had 
exceeded the powers committed to it and thus judicial review was not 
barred by this factor of the political question doctrine.\564\ Although 
this approach accords with the ``classicist'' theory of judicial 
review,\565\ it circumscribes the political question doctrine severely, 
inasmuch as all constitutional questions turn on whether a governmental 
body has exceeded its specified powers, a determination the Court 
traditionally makes, whereas traditionally the doctrine precluded the 
Court from inquiring whether the governmental body had exceeded its 
powers. In short, the political question consideration may now be one on 
the merits rather than a decision not to decide.

        \560\Bond v. Floyd, 385 U.S. 116 (1966).
        \561\395 U.S. 486 (1969).
        \562\Baker v. Carr, 369 U.S. 186, 217 (1962).
        \563\Id., 395 U.S., 519.
        \564\Id., 519-547. The Court concluded, however, by noting that 
even if this conclusion had not been reached from unambiguous evidence, 
the result would have followed from other considerations. Id., 547-548.
        \565\Supra, n. 552. See H. Wechsler, op. cit., n. 552, 11-12. 
Professor Wechsler believed that congressional decisions about seating 
members were immune to review. Ibid. Chief Justice Warren noted that 
``federal courts might still be barred by the political question 
doctrine from reviewing the House's factual determination that a member 
did not meet one of the standing qualifications. This is an issue not 
presented in this case and we express no view as to its resolution.'' 
Powell v. McCormack, 395 U.S. 486, 521 n. 42 (1969). And see id., 507 n. 
27 (reservation on limitations that might exist on Congress' power to 
expel or otherwise punish a sitting member).

        Chief Justice Warren disposed of the other factors present in 
political question cases in slightly more than a page. Since resolution 
of the question turned on an interpretation of the Constitution, a 
judicial function which must sometimes be exercised ``at variance with 
the construction given the document by another branch,'' there was no 
lack of respect shown another branch, nor, because the Court is the 
``ultimate interpreter of the Constitution,'' will there be 
``multifarious pronouncements by various departments on one question,'' 
nor, since the Court is merely interpreting the Constitution, is there 
an ``initial policy determination'' not suitable for courts. Finally, 
``judicially . . . manageable standards'' are present in the text of the 
Constitution.\566\ The effect of Powell is to discard all the Baker 
factors inhering in a political question, with the exception of the 
textual commitment factor, and that was interpreted

[[Page 696]]
in such a manner as seldom if ever to preclude a judicial decision on 
the merits.

        \566\Id., 395 U.S., 548-549. With the formulation of Chief 
Justice Warren, compare that of then-Judge Burger in the lower court. 
395 F.2d 577, 591-596 (D.C.Cir. 1968).

        The Doctrine Reappears.--Reversing a lower federal court ruling 
subjecting the training and discipline of National Guard troops to court 
review and supervision, the Court held that under Article I, Sec. 8, cl. 
16, the organizing, arming, and disciplining of such troops are 
committed to Congress and by congressional enactment to the Executive 
Branch. ``It would be difficult to think of a clearer example of the 
type of governmental action that was intended by the Constitution to be 
left to the political branches, directly responsible--as the Judicial 
Branch is not--to the elective process. Moreover, it is difficult to 
conceive of an area of governmental activity in which the courts have 
less competence. The complex, subtle, and professional decisions as to 
the composition, training, equipping, and control of a military force 
are essentially professional military judgments, subject always to 
civilian control of the Legislative and Executive Branches.''\567\ The 
suggestion of the infirmity of the political question doctrine was 
rejected, since ``because this doctrine has been held inapplicable to 
certain carefully delineated situations, it is no reason for federal 
courts to assume its demise.''\568\ In staying a grant of remedial 
relief in another case, the Court strongly suggested that the actions of 
political parties in national nominating conventions may also present 
issues not meet for judicial resolution.\569\

        \567\Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Similar 
prudential concerns seem to underlay, though they did not provide the 
formal basis for, decisions in O'Shea v. Littleton, 414 U.S. 488 (1974), 
and Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605 
        \568\Id., 413 U.S., 11. Other considerations of justiciability, 
however, id., 10, preclude using the case as square precedent on 
political questions. Notice that in Scheuer v. Rhodes, 416 U.S. 232, 249 
(1974), the Court denied that the Gilligan v. Morgan holding barred 
adjudication of damage actions brought against state officials by the 
estates of students killed in the course of the conduct that gave rise 
to both cases.
        \569\O'Brien v. Brown, 409 U.S. 1 (1972) (granting stay). The 
issue was mooted by the passage of time and was not thereafter 
considered on the merits by the Court. Id., 816 (remanding to dismiss as 
moot). It was also not before the Court in Cousins v. Wigoda, 419 U.S. 
477 (1975), but it was alluded to there. See id., 483 n. 4, and id., 491 
(Justice Rehnquist concurring). See also Goldwater v. Carter, 444 U.S. 
996, 1002 (1979) (Justices Rehnquist, Stewart, and Stevens, and Chief 
Justice Burger using political question analysis to dismiss a challenge 
to presidential action). But see id. 997, 998 (Justice Powell rejecting 
analysis for this type of case).

        Despite the occasional resort to the doctrine, the Court 
continues to reject its application in language that confines its scope. 
Thus, when parties challenged the actions of the Secretary of Commerce 
in declining to certify, as required by statute, that Japanese whaling 
practices undermined the effectiveness of international conventions, the 
Court rejected the Government's argument that

[[Page 697]]
the political question doctrine precluded decision on the merits. The 
Court's prime responsibility, it said, is to interpret statutes, 
treaties, and executive agreements; the interplay of the statutes and 
the agreements in this case implicated the foreign relations of the 
Nation. ``But under the Constitution, one of the Judiciary's 
characteristic roles is to interpret statutes, and we cannot shirk this 
responsibility merely because our decision may have significant 
political overtones.''\570\

        \570\Japan Whaling Assn. v. American Cetacean Society, 478 U.S. 
221, 230 (1986). See also Davis v. Bandemer, 478 U.S. 109 (1986) 
(challenge to political gerrymandering is justiciable).

        After requesting argument on the issue, the Court held that a 
challenge to a statute on the ground that it did not originate in the 
House of Representatives as required by the origination clause was 
justiciable.\571\ Turning back reliance on the various factors set out 
in Baker, in much the same tone as in Powell v. McCCormack, the Court 
continued to evidence the view that only questions textually committed 
to another branch are political questions. Invalidation of a statute 
because it did not originate in the right House would not demonstrate a 
``lack of respect'' for the House that passed the bill. 
``[D]isrespect,'' in the sense of rejecting Congress' reading of the 
Constitution, ``cannot be sufficient to create a political question. If 
it were every judicial resolution of a constitutional challenge to a 
congressional enactment would be impermissible.''\572\ That the House of 
Representatives has the power and incentives to protect its prerogatives 
by not passing a bill violating the origination clause did not make this 
case nonjusticiable. ``[T]he fact that one institution of Government has 
mechanisms available to guard against incursions into its power by other 
governmental institutions does not require that the Judiciary remove 
itself from the controversy by labeling the issue a political 
question.''\573\ The Court also rejected the contention that, because 
the case did not involve a matter of individual rights, it ought not be 
adjudicated. Political questions are not restricted to one kind of 
claim, but the Court frequently has decided separation-of-power cases 
brought by people in their individual capacities, and the allocation of 
powers within a branch, as is the case in interbranch dispositions, is 
designed to safeguard liberty.\574\ Finally, the Court was sanguine that 
it could develop ``judicially manageable standards'' for dispos

[[Page 698]]
ing of origination clause cases, and, thus, it did not view the issue as 
political in that context.\575\

        \571\United States v. Munoz-Flores, 495 U.S. 385 (1990).
        \572\Id., 390 (emphasis in original).
        \573\Id., 392-393.
        \574\Id., 393-395.
        \575\Id., 395-396.

        In short, the political question doctrine may not be moribund, 
but it does seem applicable to a very narrow class of cases.

                               ARTICLE III

                           JUDICIAL DEPARTMENT

               Section 2. Judicial Power and Jurisdiction

                             JUDICIAL REVIEW

      The Establishment of Judicial Review

        Judicial review is one of the distinctive features of United 
States constitutional law. It is no small wonder, then, to find that the 
power of the federal courts to test federal and state legislative 
enactments and other actions by the standards of what the Constitution 
grants and withholds is nowhere expressly conveyed. But it is hardly 
noteworthy that its legitimacy has been challenged from the first, and, 
while now accepted generally, it still has detractors and its supporters 
disagree about its doctrinal basis and its application.\576\ Although it 
was first asserted in Marbury v. Madison\577\ to strike down an act of 
Congress as inconsistent with the Constitution, judicial review did not 
spring full-blown from the brain of Chief Justice Marshall. The concept 
had been long known, having been utilized in a much more limited form by 
Privy Council review of colonial legislation and its validity under the 
colonial charters,\578\ and there were several instances known to the 
Framers of state court invalidation of state legislation as inconsistent 
with state constitutions.\579\

        \576\See the richly detailed summary and citations to authority 
in G. Gunther, Constitutional Law (Westbury, N.Y., 12th ed.: 1991), 1-
38; For expositions on the legitimacy of judicial review, see L. Hand, 
The Bill of Rights (Cambridge: 1958); H. Wechsler, Principles, Politics, 
and Fundamental Law--Selected Essays (Cambridge: 1961), 1-15; A. Bickel, 
The Least Dangerous Branch--The Supreme Court at the Bar of Politics 
(New York: 1962) 1-33; R. Berger, Congress v. The Supreme Court 
(Cambridge: 1969). For an extensive historical attack on judicial 
review, see 2 W. Crosskey, Politics and the Constitution in the History 
of the United States (Chicago: 1953), chs. 27-29, with which compare 
Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the 
ongoing debate on the subject, in a work that now is a classic attack on 
judicial review, is Westin, Introduction: Charles Beard and American 
Debate over Judicial Review, 1790-1961, in C. Beard, The Supreme Court 
and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1-34, 
and bibliography at 133-149. While much of the debate focuses on 
judicial review of acts of Congress, the similar review of state acts 
has occasioned much controversy as well.
        \577\1 Cr. (5 U.S.) 137 (1803). A state act was held 
inconsistent with a treaty in Ware v. Hylton, 3 Dall. (3 U.S.) 199 
        \578\J. Goebel, op. cit., n. 2, 60-95.
        \579\Id., 96-142.

        Practically all of the framers who expressed an opinion on the 
issue in the Convention appear to have assumed and welcomed the

[[Page 699]]
existence of court review of the constitutionality of legislation,\580\

[[Page 700]]
and prior to Marbury the power seems very generally to have been assumed 
to exist by the Justices themselves.\581\ In enacting the Judiciary Act 
of 1789, Congress explicitly made provision for the exercise of the 
power,\582\ and in other debates questions of constitutionality and of 
judicial review were prominent.\583\ Nonetheless, although judicial 
review is consistent with several provisions of the Constitution and the 
argument for its existence may be derived from these provisions, they do 
not compel the conclusion that the Framers intended judicial review nor 
that it must exist. It was

[[Page 701]]
Chief Justice Marshall's achievement that, in doubtful circumstances and 
an awkward position, he carried the day for the device, which, though 
questioned, has expanded and become solidified at the core of 
constitutional jurisprudence.

        \580\M. Farrand, op. cit., n. 1, 97-98 (Gerry), 109 (King), 2 
id., 28 (Morris and perhaps Sherman). 73 (Wilson), 75 (Strong, but the 
remark is ambiguous). 76 (Martin), 78 (Mason), 79 (Gorham, but 
ambiguous), 80 (Rutledge), 92-93 (Madison), 248 (Pinckney), 299 
(Morris), 376 (Williamson), 391 (Wilson), 428 (Rutledge), 430 (Madison), 
440 (Madison), 589 (Madison); 3 id., 220 (Martin). The only expressed 
opposition to judicial review came from Mercer with a weak seconding 
from Dickinson. ``Mr. Mercer . . . disapproved of the Doctrine that the 
Judges as expositors of the Constitution should have authority to 
declare a law void. He thought laws ought to be well and cautiously 
made, and then to be uncontroulable.'' 2 id., 298. ``Mr. Dickinson was 
strongly impressed with the remark of Mr. Mercer as to the power of the 
Judges to set aside the law. He thought no such power ought to exist. He 
was at the same time at a loss what expedient to substitute.'' Id., 299. 
Of course, the debates in the Convention were not available when the 
state ratifying conventions acted, so that the delegates could not have 
known these views about judicial review in order to have acted knowingly 
about them. Views, were, however, expressed in the ratifying conventions 
recognizing judicial review, some of them being uttered by Framers. 2 J. 
Elliot, Debates in the Several State Conventions on the Adoption of the 
Federal Constitution (Philadelphia: 1836). 131 (Samuel Adams, 
Massachusetts), 196-197 (Ellsworth, Connecticut). 348, 362 (Hamilton, 
New York): 445-446. 478 (Wilson, Pennsylvania), 3 id., 324-325, 539, 541 
(Henry, Virginia), 480 (Mason, Virginia), 532 (Madison, Virginia), 570 
(Randolph, Virginia); 4 id., 71 (Steele, North Carolina), 156-157 
(Davie, North Carolina). In the Virginia convention, John Marshall 
observed if Congress ``were to make a law not warranted by any of the 
powers enumerated, it would be considered by the judge as an 
infringement of the Constitution which they are to guard . . . They 
would declare it void. . . . To what quarter will you look for 
protection from an infringement on the constitution, if you will not 
give the power to the judiciary? There is no other body that can afford 
such a protection.'' 3 id., 553-554. Both Madison and Hamilton similarly 
asserted the power of judicial review in their campaign for 
ratification. The Federalist (J. Cooke ed. 1961). See Nos. 39 and 44, at 
256, 305 (Madison), Nos. 78 and 81, at 524-530, 541-552 (Hamilton). The 
persons supporting or at least indicating they thought judicial review 
existed did not constitute a majority of the Framers, but the absence of 
controverting statements, with the exception of the Mercer-Dickinson 
comments, indicates at least acquiesence if not agreements by the other 
        To be sure, subsequent comments of some of the Framers indicate 
an understanding contrary to those cited in the convention. See, e.g., 
Charles Pinckney in 1799: ``On no subject am I more convinced, than that 
it is an unsafe and dangerous doctrine in a republic, ever to suppose 
that a judge ought to possess the right of questioning or deciding upon 
the constitutionality of treaties, laws, or any act of the legislature. 
It is placing the opinion of an individual, or of two or three, above 
that of both branches of Congress, a doctrine which is not warranted by 
the Constitution, and will not, I hope, long have many advocates in this 
country.'' F. Wharton (ed.), State Trials of the United States During 
the Administrations of Washington and Adams (Philadelphia: 1849), 412.
        Madison's subsequent changes of position are striking. His 
remarks in the Philadelphia Convention, in the Virginia ratifying 
convention, and in The Federalist, cited above, all unequivocally favor 
the existence of judicial review. And in Congress arguing in support of 
the constitutional amendments providing a bill of rights, he observed: 
``If they are incorporated into the Constitution, independent tribunals 
of justice will consider themselves in a peculiar manner the guardians 
of those rights; they will be an impenetrable bulwark against every 
assumption of power in the Legislature or Executive; they will be 
naturally led to resist every encroachment upon rights expressly 
stipulated for in the Constitution by the declaration of rights,'' 1 
Annals of Congress 457 (1789); 5 Writings of James Madison, G. Hunt ed. 
(Philadelphia: 1904), 385. Yet, in a private letter in 1788, he wrote: 
``In the state constitutions and indeed in the federal one also, no 
provision is made for the case of a disagreement in expounding them; and 
as the courts are generally the last in making the decision, it results 
to them by refusing or not refusing to execute a law, to stamp it with 
the final character. This makes the Judiciary Department paramount in 
fact to the legislature, which was never intended and can never be 
proper.'' Id., 294. At the height of the dispute over the Alien and 
Sedition Acts, Madison authored a resolution ultimately passed by the 
Virginia legislature which, though milder, and more restrained than one 
authored by Jefferson and passed by the Kentucky legislature, asserted 
the power of the States, though not of one State or of the state 
legislatures alone, to ``interpose'' themselves to halt the application 
of an unconstitutional law. 3 I. Brant, James Madison--Father of the 
Constitution, 1787-1800 (New York: 1950), 460-464. 467-471; Report on 
the Resolutions of 1798, 6 Writings of James Madison, op. cit., 341-406. 
Embarrassed by the claim of the nullificationists in later years that 
his resolution supported their position, Madison distinguished his and 
their positions and again asserted his belief in judicial review. 6 I. 
Brant, op. cit., 481-485, 488-489.
        The various statements made and positions taken by the Framers 
have been culled and categorized and argued over many times. For a 
recent compilation reviewing the previous efforts, see R. Berger, op. 
cit., n. 576, chs. 3-4.
        \581\Thus, the Justices on circuit refused to adminster a 
pension act on grounds of its unconstitutionally, see Hayburn's Case, 2 
Dall. (2 U.S.) 409 (1792), and supra, pp. 621-623. Chief Justice Jay and 
other Justices wrote that the imposition of circuit duty on Justices was 
unconstitutional, although they never mailed the letter, supra, p.599 
n.21, in Hylton v. United States, 3 Dall. (3 U.S.) 171 (1796), a feigned 
suit, the constitutionality of a federal law was argued before the 
Justices and upheld on the merits, in Ware v. Hylton. 3 Dall. (3 U.S.) 
199 (1797), a state law was overturned, and dicta in several opinions 
asserted the principle. See Calder v. Bull, 3 Dall. (3 U.S.) 386, 399 
(1798) (Justice Iredell), and several Justices on circuit, quoted in J. 
Goebel, op. cit., n. 2, 589-592.
        \582\In enacting the Judiciary Act of 1789, 1 Stat. 73, Congress 
chose not to vest ``federal question'' jurisdiction in the federal 
courts but to leave to the state courts the enforcement of claims under 
the Constitution and federal laws. In Sec. 25, 1 Stat. 85, Congress 
provided for review by the Supreme Court of final judgments in state 
courts (1) ``. . . where is drawn in question the validity of a treaty 
or statute of, or an authority exercised under the United States, and 
the decision is against their validity;'' (2) ``. . . where is drawn in 
question the validity of a statute of, or an authority exercised under 
any State, on the ground of their being repugnant to the constitution, 
treaties or laws of the United States, and the decision is in favor of 
their validity;'' or (3) ``. . . where is drawn in question the 
construction of any clause of the constitution, or of a treaty, or 
statute of, or commission held under the United States, and the decision 
is against the title, right, privilege or exemption specially set up or 
claimed'' thereunder. The ruling below was to be ``re-examined and 
reversed or affirmed in the Supreme Court. . . .''
        \583\See in particular the debate on the President's removal 
powers, discussed supra. pp.522-531, with statements excerpted in R. 
Berger, op. cit., n. 576, 144-150. Debates on the Alien and Sedition 
Acts and on the power of Congress to repeal the Judiciary Act of 1801 
similarly saw recognition of judicial review of acts of Congress. C. 
Warren, op. cit., n. 12, 107-124.

        Marbury v. Madison.--Chief Justice Marshall's argument for 
judicial review of congressional acts in Marbury v. Madison\584\ had 
been largely anticipated by Hamilton.\585\ For example, he had written: 
``The interpretation of the laws is the proper and peculiar province of 
the courts. A constitution, is, in fact, and must be regarded by the 
judges, as a fundamental law. It therefore belongs to them to ascertain 
its meaning, as well as the meaning of any particular act proceeding 
from the legislative body. If there should happen to be an 
irreconcilable variance between two, that which has the superior 
obligation and validity ought, of course, to be preferred; or, in other 
words, the constitution ought to be preferred to the statute, the 
intention of the people to the intention of their agents.''\586\

        \584\1 Cr. (5 U.S.) 137 (1803).
        \585\The Federalist, Nos. 78 and 81 (J. Cooke ed. 1961), 521-
530, 541-552.
        \586\Id., No. 78, at 525.

        At the time of the change of Administration from Adams to 
Jefferson, several commissions of appointment to office had been signed 
but not delivered and were withheld on Jefferson's express instruction. 
Marbury sought to compel the delivery of his commission by seeking a 
writ of mandamus in the Supreme Court in the exercise of its original 
jurisdiction against Secretary of State Madison. Jurisdiction was based 
on Sec. 13 of the Judiciary Act of 1789,\587\ which Marbury, and 
ultimately the Supreme Court, interpreted to authorize the Court to 
issue writs of mandamus in suits in its original jurisdiction.\588\ 
Though deciding all the other issues in Marbury's favor, the Chief 
Justice wound up concluding that the Sec. 13 authorization was an 
attempt by Congress to expand the Court's original jurisdiction beyond 
the constitutional prescription and was therefore void.\589\

        \587\1 Stat. 73, 80.
        \588\The section first denominated the original jurisdiction of 
the Court and then described the Court's appellate jurisdiction. 
Following and indeed attached to the sentence on appellate jurisdiction, 
being separated by a semi-colon, is the language saying ``and shall have 
power to issue . . . writs of mandamus, in cases warranted by the 
principles and usages of law, to any courts appointed, or persons 
holding office, under the authority of the United States.'' The Chief 
Justice could easily have interpreted the authority to have been granted 
only in cases under appellate jurisdiction or as authority conferred in 
cases under both original and appellate jurisdiction when the cases are 
otherwise appropriate for one jurisdiction or the other. Textually, the 
section does not compel a reading that Congress was conferring on the 
Court an original jurisdiction to issue writs of mandamus per se.
        \589\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 173-180 (1803). For 
a classic treatment of Marbury, see Van Alstyne, A Critical Guide to 
Marbury v. Madison, 1969 Duke L. J. 1.


[[Page 702]]

        ``The question, whether an act, repugnant to the constitution, 
can become the law of the land, is a question deeply interesting to the 
United States;'' Marshall began his discussion of this final phase of 
the case, ``but, happily, not of an intricacy proportioned to its 
interest.''\590\ First, certain fundamental principles warranting 
judicial review were noticed. The people had come together to establish 
a government. They provided for its organization and assigned to its 
various departments their powers and established certain limits not to 
be transgressed by those departments. The limits were expressed in a 
written constitution, which would serve no purpose ``if these limits 
may, at any time, be passed by those intended to be restrained.'' 
Because the Constitution is ``a superior paramount law,'' it is 
unchangeable by ordinary legislative means and ``a legislative act 
contrary to the constitution is not law.''\591\ ``If an act of the 
legislature, repugnant to the constitution, is void, does it 
notwithstanding its invalidity, bind the courts, and oblige them to give 
it effect?'' The answer, thought the Chief Justice, was obvious. ``It is 
emphatically the province and duty of the judicial department to say 
what the law is. . . . If two laws conflict with each other, the courts 
must decide on the operation of each.

        \590\Id., 1 Cr. (5 U.S.), 176. One critic has written that by 
this question Marshall ``had already begged the question-in-chief, which 
was not whether an act repugnant to the Constitution could stand, but 
who should be empowered to decide that the act is repugnant.'' A Bickel, 
op. cit., n. 576, 3. Marshall, however, soon reached this question, 
though more by way of assertion than argument. Id., 1 Cr. (5 U.S.), 177-
        \591\Id., 176-177.

        ``So if a law be in opposition to the constitution; if both the 
law and the constitution apply to a particular case, so that the court 
must either decide that case conformably to the law, disregarding the 
constitution; or conformably to the constitution, disregarding the law; 
the court must determine which of these conflicting rules governs the 
case. This is of the very essence of judicial duty.

        ``If, then, the courts are to regard the constitution, and the 
constitution is superior to any ordinary act of the legislature, the 
constitution, and not such ordinary act, must govern the case to which 
they both apply.''\592\ To declare otherwise, Chief Justice Marshall 
said, would be to permit a legislative body to pass at pleasure the 
limits imposed on its powers by the Constitution.\593\

        \592\Id., 177-178.
        \593\Id., 178.

        Turning, then, from the philosophical justification for judicial 
review as arising from the very concept of a written constitution, the 
Chief Justice turned to specific clauses of the Constitution. The 
judicial power, he observed, was extended to ``all cases arising

[[Page 703]]
under the constitution.''\594\ It was ``too extravagant to be maintained 
that the Framers had intended that a case arising under the constitution 
should be decided without examining the instrument under which it 
arises.''\595\ Suppose, he said, that Congress laid a duty on an article 
exported from a State or passed a bill of attainder or an ex post facto 
law or provided that treason should be proved by the testimony of one 
witness. Would the courts enforce such a law in the face of an express 
constitutional provision? They would not, he continued, because their 
oath required by the Constitution obligated them to support the 
Constitution and to enforce such laws would violate the oath.\596\ 
Finally, the Chief Justice noticed the supremacy clause, which gave the 
Constitution precedence over laws and treaties and provided that only 
laws ``which shall be made in pursuance of the constitution'' are to be 
the supreme laws of the land.\597\

        \594\Ibid. The reference is, of course, to the first part of 
clause 1, Sec. 2, Art. III: ``The judicial power shall extend to all 
Cases . . . arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their 
Authority. . . .'' Compare A. Bickel, op. cit., n. 576, 5-6, with R. 
Berger, op. cit., n. 576, 189-222.
        \595\Id., 1 Cr. (5 U.S.), 179.
        \596\Id., 179-180. The oath provision is contained in Art. VI, 
cl. 3. Compare A. Bickel, op. cit., n. 576, 7-8, with R. Berger, op. 
cit., n. 576, 237-244.
        \597\Id., 1 Cr. (5 U.S.), 180. Compare A. Bickel, op. cit., n. 
576, 8-12, with R. Berger, op. cit., n. 576, 223-284.

        The decision in Marbury v. Madison has never been disturbed, 
although it has been criticized and has had opponents throughout our 
history. It not only carried the day in the federal courts, but from its 
announcement judicial review by state courts of local legislation under 
local constitutions made rapid progress and was securely established in 
all States by 1850.\598\

        \598\E. Corwin, The Doctrine of Judicial Review (Princeton: 
1914), 75-78; Nelson, Changing Conceptions of Judicial Review: The 
Evolution of Constitution Theory in the State, 1790-1860, 120 U. Pa. L. 
Rev. 1166 (1972).

        Judicial Review and National Supremacy.--Even many persons who 
have criticized the concept of judicial review of congressional acts by 
the federal courts have thought that review of state acts under federal 
constitutional standards is soundly based in the supremacy clause, which 
makes the Constitution and constitutional laws and treaties the supreme 
law of the land,\599\ to effectuate which Congress enacted the famous 
Sec. 25 of the Judiciary Act of 1789.\600\ Five years before Marbury v. 
Madison, the Court

[[Page 704]]
held invalid a state law as conflicting with the terms of a treaty,\601\ 
and seven years after Chief Justice Marshall's opinion a state law was 
voided as conflicting with the Constitution.\602\

        \599\2. W. Crosskey, op. cit., n. 576, 989. See the famous 
remark of Holmes: ``I do not think the United States would come to an 
end if we lost our power to declare an Act of Congress void. I do think 
the Union would be imperiled if we could not make that declaration as 
the laws of the several States.'' O. Holmes, Collected Legal Papers 
(Boston: 1921), 295-296.
        \600\1 Stat. 73, 85, quoted supra, n. 582.
        \601\Ware v. Hylton, 3 Dall. (3 U.S.) 190 (1796).
        \602\Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810). The case came 
to the Court by appeal from a circuit court and not from a state court 
under Sec. 25. Famous early cases coming to the Court under Sec. 25 in 
which state laws were voided included Sturges v. Crowninshield, 4 Wheat. 
(17 U.S.) 122 (1819); McCulloch v. Maryland, 4 Wheat, (17 U.S.) 316 

        Virginia provided a states' rights challenge to a broad reading 
of the supremacy clause and to the validity of Sec. 25 in Martin v. 
Hunter's Lessee\603\ and in Cohens v. Virginia.\604\ In both cases, it 
was argued that while the courts of Virginia were constitutionally 
obliged to prefer ``the supreme law of the land,'' as set out in the 
supremacy clause, over conflicting state constitutional provisions and 
laws, it was only by their own interpretation of the supreme law that 
they as courts of a sovereign State were bound. Furthermore, it was 
contended that cases did not ``arise'' under the Constitution unless 
they were brought in the first instance by someone claiming such a 
right, from which it followed that ``the judicial power of the United 
States'' did not ``extend'' to such cases unless they were brought in 
the first instance in the courts of the United States. But answered 
Chief Justice Marshall: ``A case in law or equity consists of the right 
of the one party, as well as of the other, and may truly be said to 
arise under the Constitution or a law of the United States, whenever its 
correct decision depends upon the construction of either.''\605\ Passing 
on to the power of the Supreme Court to review such decisions of the 
state courts, he said: ``Let the nature and objects of our Union be 
considered: let the great fundamental principles on which the fabric 
stands, be examined: and we think, the result must be, that there is 
nothing so extravagantly absurd, in giving to the Court of the nation 
the power of revising the decisions of local tribunals, on questions 
which affect the nation, as to require that words which import this 
power should be restricted by a forced construction.''\606\

        \603\1 Wheat (14 U.S.) 304 (1816).
        \604\6 Wheat, (19 U.S.) 264 (1821).
        \605\Id., 379.
        \606\Id., 422-423. Justice Story traversed much of the same 
ground in Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816). In 
Ableman v. Booth, 21 How. (62 U.S.) 506 (1859), the Wisconsin Supreme 
Court had declared an act of Congress invalid and disregarded a writ of 
error from the Supreme Court, raising again the Virginia arguments. 
Chief Justice Taney emphatically rebuked the assertions on grounds both 
of dual sovereignty and national supremacy. His emphasis on the 
indispensability of the federal judicial power to maintain national 
supremacy, to protect the States from national encroachments, and to 
make the Constitution and laws of the United States uniform all combine 
to enhance the federal judicial power to a degree perhaps beyond that 
envisaged even by Story and Marshall. As late as Williams v. Bruffy, 102 
U.S. 248 (1880), the concepts were again thrashed out with the refusal 
of a Virginia court to enforce a mandate of the Supreme Court. And see 
Cooper v. Aaron, 358 U.S. 1 (1958).


[[Page 705]]
      Limitations on the Exercise of Judicial Review

        Constitutional Interpretation.--In a system such as the one in 
the United States in which there is a written constitution, which is law 
and is binding on government, the practice of judicial review inherently 
raises questions of the relationship between constitutional 
interpretation or construction and the Constitution--the law--which is 
construed. The legitimacy of construction by an unelected entity in a 
republican or democratic system becomes an issue whenever the 
construction is controversial, as it was most recently in the 1960s to 
the present. Full consideration would carry us far afield, in view of 
the immense corpus of writing with respect to the proper mode of 
interpretation during this period.

        Scholarly writing has identified six forms of constitutional 
argument or construction that may be used by courts or others in 
deciding a constitutional issue.\607\ These are (1) historical, (2) 
textual, (3) structural, (4) doctrinal, (5) ethical, and (6) prudential. 
The historical argument is largely, though not exclusively, associated 
with the theory of original intent or original understanding, under 
which constitutional and legal interpretation is limited to attempting 
to discern the original meaning of the words being construed as that 
meaning is revealed in the intentions of those who created the law or 
the constitutional provision in question. The textual argument, closely 
associated in many ways to the doctrine of original intent, concerns 
whether the judiciary or another is bound by the text of the 
Constitution and the intentions revealed by that language or whether it 
may go beyond the four corners of the constitutional document to 
ascertain the meaning, a dispute encumbered by the awkward 
constructions, interpretivism and noninterpretivism.\608\

[[Page 706]]
Using a structural argument, one seeks to infer structural rules from 
the relationships that the Constitution mandates.\609\ The remaining 
three modes sound in reasoning not necessarily tied to original intent, 
text, or structure, though they may have some relationship.Doctrinal 
arguments proceed from the application of precedents. Prudential 
arguments seek to balance the costs and benefits of a particular rule. 
Ethical arguments derive rules from those moral commitments of the 
American ethos that are reflected in the Constitution.

        \607\The six forms, or ``modalities'' as he refers to them, are 
drawn from P. Bobbitt, Constitutional Fate--Theory of the Constitution 
(1982); P. Bobbitt, Constitutional Interpretation (1991). Of course, 
other scholars may have different categories, but these largely overlap 
these six forms. E.g., Fallon, A Constructivist Coherence Theory of 
Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987); Post, 
Theories of Constitutional Interpretation, in R. Post (ed.), Law and the 
Order of Culture (1991), 13-41.
        \608\Among the vast writing, see, e.g., R. Bork, The Tempting of 
America (1990); J. Ely, Democracy and Distrust: A Theory of Judicial 
Review (1980); L. Tribe & M. Dorf, On Reading the Constitution (1991); 
H. Wellington, Interpreting the Constitution (1990); Symposium, 
Constitutional Adjudication and Democratic Theory, 56 N. Y. U. L. Rev. 
259 (1981); Symposium, Judicial Review and the Constitution--The Text 
and Beyond, 8 U. Dayton L. Rev 443 (1983); Symposium, Judicial Review 
Versus Democracy, 42 Ohio St. L. J. 1 (1981); Symposium, Democracy and 
Distrust: Ten Years Later, 77 Va. L. Rev. 631 (1991). See also Farber, 
The Originalism Debate: A Guide for the Perplexed, 49 Ohio St. L. J. 
1085 (1989).
        \609\This mode is most strongly association with C. Black, 
Structure and Relationship in Constitutional Law (1969).

        Although the scholarly writing ranges widely, a much more narrow 
scope is seen in the actual political-judicial debate. Rare is the judge 
who will proclaim a devotion to ethical guidelines, such, for example, 
as natural-law precepts. The usual debate ranges from those adherents of 
strict construction and original intent to those with loose construction 
and adaptation of text to modern-day conditions.\610\ However, it is 
with regard to more general rules of prudence and self-restraint that 
one usually finds the enunciation and application of limitations on the 
exercise of constitutional judicial review.

        \610\E.g., Meese, The Attorney General's View of the Supreme 
Court: Toward a Jurisprudence of Original Intention, 45 Pub. Admin. Rev. 
701 (1985); Addresses--Construing the Constitution, 19 U. C. Davis L. 
Rev. 1 (1985), containing addresses by Justice Brennan, id., 2, Justice 
Stevens, id., 15, and Attorney General Meese. Id., 22. See also 
Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 

        Prudential Considerations.--Implicit in the argument of Marbury 
v. Madison\611\ is the thought that with regard to cases meeting 
jurisdictional standards, the Court is obligated to take and decide 
them. Chief Justice Marshall expressly spelled the thought out in Cohens 
v. Virginia:\612\ ``It is most true that this Court will not take 
jurisdiction if it should not: but it is equally true, that it must take 
jurisdiction if it should. The judiciary cannot, as the legislature may, 
avoid a measure because it approaches the confines of the constitution. 
We cannot pass it by because it is doubtful. With whatever doubts, with 
whatever difficulties, a case may be attended, we must decide it, if it 
be brought before us. We have no more right to decline the exercise of 
jurisdiction which is given, than to usurp that which is not given. The 
one or the other would be treason to the constitution.'' As the comment 
recognizes, because judicial review grows out of the fiction that courts 
only declare

[[Page 707]]
what the law is in specific cases\613\ and are without will or 
discretion,\614\ its exercise is surrounded by the inherent limitations 
of the judicial process, most basically, of course, by the necessity of 
a case or controversy and the strands of the doctrine comprising the 
concept of justiciability.\615\ But, although there are hints of Chief 
Justice Marshall's activism in recent cases,\616\ the Court has always 
adhered, at times more strictly than at other times, to several 
discretionary rules or concepts of restraint in the exercise of judicial 
review, the practice of which is very much contrary to the quoted dicta 
from Cohens. These rules, it should be noted, are in addition to the 
vast discretionary power which the Supreme Court has to grant or deny 
review of judgements in lower courts, a discretion fully authorized with 
certiorari jurisdiction but in effect in practice as well with regard to 
what remains of appeals.\617\

        \611\1 Cr. (5 U.S.) 137 (1803).
        \612\6 Wheat. (19 U.S.) 264, 404, (1821).
        \613\See, e.g., Justice Sutherland in Adkins v. Children's 
Hospital, 261 U.S. 525, 544 (1923), and Justice Roberts in United States 
v. Butler, 297 U.S. 1, 62 (1936).
        \614\``Judicial power, as contradistinguished from the powers of 
the law, has no existence. Courts are the mere instruments of the law, 
and can will nothing.'' Osborn v. Bank of the United States, 9 Wheat. 
(22 U.S.) 738, 866 (1824) (Chief Justice Marshall). See also Justice 
Roberts in United States v. Butler, 297 U.S. 1, 62-63 (1936).
        \615\The political question doctrine is another limitation 
arising in part out of inherent restrictions and in part from prudential 
considerations. For a discussion of limitations utilizing both stands, 
see Ashwander v. TVA 297 U.S. 288, 346-356 (1936) (Justice Brandeis 
        \616\Powell v. McCormack, 395 U.S. 486, 548-549 (1969); Baker v. 
Carr, 369 U.S. 186, 211 (1962); Zwickler v. Koota, 389 U.S. 241, 248 
        \617\28 U.S.C. Sec. Sec. 1254-1257. See F. Frankfurter & J. 
Landis, op. cit., n. 12, ch. 7. ``The Supreme Court is not, and never 
has been, primarily concerned with the correction of errors in lower 
court decisions. In almost all cases within the Court's appellate 
jurisdiction, the petitioner has already received one appellate review 
of his case. . . . If we took every case in which an interesting legal 
question is raised, or our prima facie impression is that the decision 
below is erroneous, we could not fulfill the Constitutional and 
statutory responsibilities placed upon the Court. To remain effective, 
the Supreme Court must continue to decide only those cases which present 
questions whose resolution will have immediate importance far beyond the 
particular facts and parties involved.'' Chief Justice Vinson, Address 
on the Work of the Federal Court, in 69 Sup. Ct. v, vi. It ``is only 
accurate to a degree to say that our jurisdiction in cases on appeal is 
obligatory as distinguished from discretionary on certiorari.'' Chief 
Justice Warren, quoted in Wiener, The Supreme Court's New Rules, 68 
Harv. L. Rev. 20, 51 (1954).

        At various times, the Court has followed more strictly than 
other times the prudential theorems for avoidance of decisionmaking when 
it deemed restraint to be more desirable than activism.\618\

        \618\See Justice Brandeis' concurring opinion in Ashwander v. 
TVA, 297 U.S. 288, 346 (1936). And contrast A. Bickel, op. cit., n. 576, 
111-198, with Gunther, The Subtle Vices of the ``Passive Virtues''--A 
Comment on Principle and Expediency in Judicial Review, 64 Colum. L. 
Rev. 1 (1964).

        The Doctrine of ``Strict Necessity.''--The Court has repeatedly 
declared that it will decide constitutional issues only if strict

[[Page 708]]
necessity compels it to do so. Thus, constitutional questions will not 
be decided in broader terms than are required by the precise state of 
facts to which the ruling is to be applied, nor if the record presents 
some other ground upon which to decide the case, nor at the instance of 
one who has availed himself of the benefit of a statute or who fails to 
show he is injured by its operation, nor if a construction of the 
statute is fairly possible by which the question may be fairly 

        \619\Rescue Army v. Municipal Court, 331 U.S. 549, 568-575 
(1947). See also Berea College v. Kentucky, 211 U.S. 45, 53 (1908); 
Siler v. Louisville & N.R.R. Co., 213 U.S. 175, 191 (1909); Carter v. 
Carter Coal Co., 298 U.S. 238, 325 (1936); Coffman v. Breeze Corp., 323 
U.S. 316, 324-325 (1945); Spector Motor Service v. McLaughlin, 323 U.S. 
101, 105 (1944); Alma Motor v. Timken Co., 329 U.S. 129 (1946). Judicial 
restraint as well as considerations of comity underlie the Court's 
abstention doctrine when the constitutionality of state laws is 

        Speaking of the policy of avoiding the decision of 
constitutional issues except when necessary, Justice Rutledge wrote: 
``The policy's ultimate foundations, some if not all of which also 
sustain the jurisdictional limitation, lie in all that goes to make up 
the unique place and character, in our scheme, of judicial review of 
governmental action for constitutionality. They are found in the 
delicacy of that function, particularly in view of possible consequences 
for others stemming also from constitutional roots; the comparative 
finality of those consequences; the consideration due to the judgment of 
other repositories of constitutional power concerning the scope of their 
authority; the necessity, if government is to function constitutionally, 
for each to keep within its power, including the courts; the inherent 
limitations of the judicial process, arising especially from its largely 
negative character and limited resources of enforcement; withal in the 
paramount importance of constitutional adjudication in our 

        \620\Rescue Army v. Municipal Court, 331 U.S. 549, 571 (1947).

        The Doctrine of Clear Mistake.--A precautionary rule early 
formulated and at the base of the traditional concept of judicial 
restraint was expressed by Professor James Bradley Thayer to the effect 
that a statute could be voided as unconstitutional only ``when those who 
have the right to make laws have not merely made a mistake, but have 
made a very clear one,--so clear that it is not open to rational 
question.''\621\ Whether phrased this way or phrased so that a statute 
is not to be voided unless it is unconstitutional beyond all reasonable 
doubt, the rule is of ancient origin\622\

[[Page 709]]
and of modern adherence.\623\ In operation, however, the rule is subject 
to two influences, which seriously impair its efficacy as a limitation. 
First, the conclusion that there has been a clear mistake or that there 
is no reasonable doubt is that drawn by five Justices if a full Court 
sits. If five Justices of learning and detachment to the Constitution 
are convinced that a statute is invalid and if four others of equal 
learning and attachment are convinced it is valid, the convictions of 
the five prevail over the convictions or doubts of the four. Second, the 
Court has at times made exceptions to the rule in certain categories of 
cases. Statutory interferences with ``liberty of contract'' were once 
presumed to be unconstitutional until proved to be valid;\624\ more 
recently, presumptions of invalidity have expressly or impliedly been 
applied against statutes alleged to interfere with freedom of expression 
and of religious freedom, which have been said to occupy a preferred 
position in the constitutional scheme of things.\625\

        \621\The Origin and Scope of the American Doctrine of 
Constitutional Law, in J. Thayer, Legal Essays (Boston: 1908), 1, 21.
        \622\See Justices Chase and Iredell in Calder v. Bull, 3 Dall. 
(3 U.S.) 386, 395, 399 (1798).
        \623\E.g., Flemming v. Nestor, 363 U.S. 603, 611 (1960).
        \624\``But freedom of contract is, nevertheless, the general 
rule and restraint the exception; and the exercise of legislative 
authority to abridge it can be justified only by the existence of 
exceptional circumstances.'' Adkins v. Children's Hospital, 261 U.S. 
525, 546 (1923).
        \625\Kovacs v. Cooper, 336 U.S. 77, 88 (1949). Justice 
Frankfurter's concurrence, id., 89-97, is a lengthy critique and review 
of the ``preferred position'' cases up to that time. The Court has not 
used the expression in recent years but the worth it attributes to the 
values of free expression probably approaches the same result. Today, 
the Court's insistence on a ``compelling state interest'' to justify a 
governmental decision to classify persons by ``suspect'' categories, 
such as race, Loving v. Virginia, 388 U.S. 1 (1967), or to restrict the 
exercise of a ``fundamental'' interest, such as the right to vote, 
Kramer v. Union Free School District, 395 U.S. 621 (1969), or the right 
to travel, Shapiro v. Thompson, 394 U.S. 618 (1969), clearly imports 
presumption of unconstitutionality.

        Exclusion of Extra-Constitutional Tests.--Another maxim of 
constitutional interpretation is that courts are concerned only with the 
constitutionality of legislation and not with its motives, policy, or 
wisdom,\626\ or with its concurrence with natural justice, fundamental 
principles of government, or the spirit of the Constitu

[[Page 710]]
tion.\627\ In various forms this maxim has been repeated to such an 
extent that it has become trite and has increasingly come to be 
incorporated in cases in which a finding of unconstitutionality has been 
made as a reassurance of the Court's limited review. And it should be 
noted that at times the Court has absorbed natural rights doctrines into 
the text of the Constitution, so that it was able to reject natural law 
per se and still partake of its fruits and the same thing is true of the 
laissez faire principles incorporated in judicial decisions from about 
1890 to 1937.\628\

        \626\``We fully understand . . . the powerful argument that can 
be made against the wisdom of this legislation, but on that point we 
have no concern.'' Noble State Bank v. Haskell, 219 U.S. 575, 580 (1911) 
(Justice Holmes for the Court). See also Trop v. Dulles, 356 U.S. 86, 
120 (1958) (Justice Frankfurter dissenting).
        A supposedly hallowed tenet is that the Court will not look to 
the motives of legislators in determining the validity of a statute. 
Fletcher v. Peck, 6 Cr. (10 U.S.) 87 (1810); United States v. O'Brien, 
391 U.S. 367 (1968); Palmer v. Thompson, 403 U.S. 217 (1971). Yet an 
intent to discriminate is a requisite to finding at least some equal 
protection violations, Washington v. Davis, 426 U.S. 229 (1976); Village 
of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 
(1977), and a secular or religious purpose is one of the parts of the 
tripartite test under the establishment clause. Committee for Public 
Education and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980), and 
id., 665 (dissent). Other constitutional decisions as well have turned 
upon the Court's assessment of purpose or motive. E.g., Gomillion v. 
Lightfoot, 364 U.S. 339 (1960); Child Labor Tax Case, 259 U.S. 20 
        \627\Cf. Griswold v. Connecticut, 381 U.S. 479, 522 (1965) 
(Justice Black dissenting). But note above the reference to the ethical 
mode of constitutional argument.
        \628\E.g., Lochner v. New York, 198 U.S. 45 (1905); United 
States v. Butler, 297 U.S. 1 (1936).

        Presumption of Constitutionality.--``It is but a decent respect 
to the wisdom, integrity, and patriotism of the legislative body, by 
which any law is passed,'' wrote Justice Bushrod Washington, ``to 
presume in favor of its validity, until its violation of the 
Constitution is proved beyond a reasonable doubt.''\629\ A corollary of 
this maxim is that if the constitutional question turns upon 
circumstances, courts will presume the existence of a state of facts 
which would justify the legislation that is challenged.\630\ It seems 
apparent, however, that with regard to laws which trench upon First 
Amendment freedoms and perhaps other rights guaranteed by the Bill of 
Rights such deference is far less than it would be toward statutory 
regulation of economic matters.\631\

        \629\Ogden v. Saunders, 12 Wheat. (25 U.S.) 213, 270 (1827). See 
also Fletcher v. Peck, 6 Cr. (10 U.S.) 87, 128 (1810); Legal Tender 
Cases, 12 Wall. (79 U.S.) 457, 531 (1871).
        \630\Munn v. Illinois, 94 U.S. 113, 132 (1877); Lindsley v. 
Natural Carbonic Gas Co., 220 U.S. 61, 78-79 (1911); Metropolitan Cas. 
Ins. Co. v. Brownell, 294 U.S. 580, 584 (1935).
        \631\E.g., United States v. Robel, 389 U.S. 258 (1967); United 
Mine Workers v. Illinois State Bar Assn., 389 U.S. 217 (1967). But see 
McGowan v. Maryland, 366 U.S. 420, 426 (1961). The development of the 
``compelling state interest'' test in certain areas of equal protection 
litigation also bespeaks less deference to the legislative judgment.

        Disallowance by Statutory Interpretation.--If it is possible to 
construe a statute so that its validity can be sustained against a 
constitutional attack, a rule of prudence is that it should be so 
construed,\632\ even though in some instances this maxim has caused the 
Court to read a statute in a manner which defeats or impairs the 
legislative purpose.\633\ Of course, the Court stresses

[[Page 711]]
that ``[w]e cannot press statutory construction `to the point of 
disingenuous evasion' even to avoid a constitutional question.''\634\ 
The maxim is not followed if the provision would survive constitutional 
attack or if the text is clear.\635\ Closely related to this principle 
is the maxim that when part of a statute is valid and part is void, the 
courts will separate the valid from the invalid and save as much as 
possible.\636\ Statutes today ordinarily expressly provide for 
separability, but it remains for the courts in the last resort to 
determine whether the provisions are separable.\637\

        \632\Rust v. Sullivan, 500 U.S. 173, 190-191 (1991); Public 
Citizen v. United States Dept. of Justice, 491 U.S. 440, 465-467 (1989) 
(quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)); Edward J. DeBartolo 
Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 
568, 575 (1988).
        \633\E.g., Michaelson v. United States, 266 U.S. 42 (1924) 
(narrow construction of Clayton Act contempt provisions to avoid 
constitutional questions): United States v. Harriss, 347 U.S. 612 (1954) 
(lobbying act): United States v. Seeger, 380 U.S. 163 (1965): Welsh v. 
United States, 398 U.S. 333 (1970) (both involving conscientious 
objection statute).
        \634\United States v. Locke, 471 U.S. 84, 96 (1985) (quoting 
Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)).
        \635\Rust v. Sullivan, 500 U.S. 173, 191 (1991); but compare 
id., 204-207 (Justice Blackmun dissenting), and 223-225 (Justice 
O'Connor dissenting). See also Peretz v. United States, 501 U.S. 923, 
929-930 (1991).
        \636\Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); 
Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 635 (1895); but see 
Baldwin v. Franks, 120 U.S. 678, 685 (1887), now repudiated. Griffin v. 
Breckenridge, 403 U.S. 88, 104 (1971).
        \637\Carter v. Carter Coal Co., 298 U.S. 238, 312-316 (1936). 
See also, id., 321-324 (Chief Justice Hughes dissenting).

        Stare Decisis in Constitutional Law.--Adherence to precedent 
ordinarily limits and shapes the approach of courts to decision of a 
presented question. ``Stare decisis is usually the wise policy, because 
in most matters it is more important that the applicable rule of law be 
settled than that it be settled right. . . . This is commonly true even 
where the error is a matter of serious concern, provided correction can 
be had by legislation. But in cases involving the Federal Constitution, 
where correction through legislative action is practically impossible, 
this Court has often overruled its earlier decisions. The Court bows to 
the lessons of experience and the force of better reasoning, recognizing 
that the process of trial and error so fruitful in the physical 
sciences, is appropriate also in the judicial function.''\638\ Stare 
decisis is a principle of policy, not a mechanical formula of adherence 
to the latest decision ``however

[[Page 712]]
recent and questionable, when such adherence involves collision with a 
prior doctrine more embracing in its scope, intrinsically sounder, and 
verified by experience.''\639\ The limitation of stare decisis seems to 
have been progressively weakened since the Court proceeded to correct 
``a century of error'' in Pollock v. Farmers' Loan & Trust Co.\640\ 
Since then, more than 200 decisions have seen one or more earlier 
decisions overturned,\641\ and the merits of stare decisis seems more 
often celebrated in dissents than in majority opinions.\642\ Of lesser 
formal effect than outright overruling but with roughly the same result 
is a Court practice of ``distinguishing'' precedents which often leads 
to an overturning of the principle enunciated in the case while leaving 
the actual case more or less alive.\643\

        \638\Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 
(1932) (Justice Brandeis dissenting). For recent arguments with respect 
to overruling or not overruling previous decisions, see the self-
consciously elaborate opinion for a plurality in Planned Parenthood of 
Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2808-2816 (1992) 
(Justices O'Connor, Kennedy, and Souter) (acknowledging that as an 
original matter they would not have decided Roe v. Wade, 410 U.S. 113 
(1973), as the Court did and that they might consider it wrongly 
decided, nonetheless applying the principles of stare decisis--they 
stressed the workability of the case's holding, the fact that no other 
line of precedent had undermined Roe, the vitality of that case's 
factual underpinnings, the reliance on the precedent in society, and the 
effect upon the Court's legitimacy of maintaining or overruling the 
case). See id., 2860-2867 (Chief Justice Rehnquist concurring in part 
and dissenting in part), 2880-2885 (Justice Scalia concurring in part 
and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827-
830 (1991) (suggesting, inter alia, that reliance is relevant in 
contract and property cases), and id., 835, 842-844 (Justice Souter 
concurring), 844, 848-856 (Justice Marshall dissenting).
        \639\Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice 
Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 
(1970) (Chief Justice Burger dissenting). But see id., 19 (Justice 
Harlan concurring in part and dissenting in part); Williams v. Florida, 
399 U.S. 78, 117-119 (1970) (Justice Harlan concurring in part and 
dissenting in part).
        \640\157 U.S. 429, 574-579 (1895).
        \641\See Appendix. The list encompasses both constitutional and 
statutory interpretation decisions. The Court adheres, at least 
formally, to the principle that stare decisis is a stricter rule for 
statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 
164, 171-175 (1989), at least in part since Congress may much more 
easily revise those decisions, but compare id., 175 n. 1, with id., 190-
205 (Justice Brennan concurring in the judgment in part and dissenting 
in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).
        \642\E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) 
(Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339-340 
(1962) (Justice Harlan dissenting): Gray v. Sanders, 372 U.S. 368, 383 
(1963) (Justice Harlan dissenting). But see Green v. United States, 356 
U.S. 165, 195 (1958) (Justice Black dissenting). And compare Justice 
Harlan's views in Mapp v. Ohio, 367 U.S.643, 674-675 (1961) 
(dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion 
of the Court).
        \643\Notice that in Planned Parenthood of Southeastern 
Pennsylvania v. Casey, 112 S.Ct. 2791 (1992), while the Court purported 
to uphold and retain the ``central meaning'' of Roe v. Wade, it 
overruled several aspects of that case's requirements. And see, e.g., 
the Court's treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn 
v. Blumstein, 405 U.S. 330, 337, n. 7 (1972). And see id., 361 (Justice 
Blackmun concurring.)

        Conclusion.--The common denominator of all these maxims of 
prudence is the concept of judicial restraint, of judge's restraint. 
``We do not sit,'' said Justice Frankfurter, ``like kadi under a tree, 
dispensing justice according to considerations of individual 
expediency.''\644\ ``[A] jurist is not to innovate at pleasure,'' wrote 
Jutice Cardozo. ``He is not a knight-errant, roaming at will in pursuit 
of his own ideal of beauty or of goodness. He is to draw his inspiration 
from consecrated principles. He is not to yield to spasmodic sentiment, 
to vague and unregulated benevolence. He is to exercise a discretion 
informed by tradition, methodized by analogy, disciplined by system, and 
subordinated to the primordial necessity of

[[Page 713]]
order in the social life.''\645\ All Justices will, of course, claim 
adherence to proper restraint,\646\ but in some cases at least, such as 
Justice Frankfurter's dissent in the Flag Salute Case,\647\ the practice 
can be readily observed. The degree, however, of restraint, the degree 
to which legislative enactments should be subjected to judicial 
scrutiny, is a matter of uncertain and shifting opinion.

        \644\Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) 
        \645\B. Cardozo, The Nature of the Judicial Process (New Haven: 
1921), 141.
        \646\Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) 
(Justice Douglas), with id., 507 (Justice Black).
        \647\West Virginia State Board of Education v. Barnette, 319 
U.S. 624, 646 (1943) (dissenting).
                                           Federal Question Jurisdiction

                               ARTICLE III

                           JUDICIAL DEPARTMENT

               Section 2. Judicial Power and Jurisdiction


      Cases Arising Under the Constitution, Laws, and Treaties of the 
        United States

        Cases arising under the Constitution are cases that require an 
interpretation of the Constitution for their correct decision.\648\ They 
arise when a litigant claims an actual or threatened invasion of his 
constitutional rights by the enforcement of some act of public 
authority, usually an act of Congress or of a state legislature, and 
asks for judicial relief. The clause furnishes the principal textual 
basis for the implied power of judicial review of the constitutionality 
of legislation and other official acts.

        \648\Cohens v. Virginia, 6 Wheat, (19 U.S.) 264, 378 (1821).

        Development of Federal Question Jurisdiction.--Almost from the 
beginning, the Convention demonstrated an intent to create ``federal 
question'' jurisdiction in the federal courts with regard to federal 
laws;\649\ such cases involving the Constitution and treaties were added 
fairly late in the Convention as floor amendments.\650\ But when 
Congress enacted the Judiciary Act of 1789, it did not confer general 
federal question jurisdiction on the inferior federal courts but left 
litigants to remedies in state courts with appeals to the United States 
Supreme Court if judgment went against federal constitutional 
claims.\651\ Although there were a few juris

[[Page 714]]
dictional provisions enacted in the early years,\652\ it was not until 
the period following the Civil War that Congress, in order to protect 
newly created federal civil rights and in the flush of nationalist 
sentiment, first created federal jurisdiction in civil rights cases\653\ 
and then in 1875 conferred general federal question jurisdiction on the 
lower federal courts.\654\ Since that time, the trend generally has been 
toward conferral of ever-increasing grants of jurisdiction to enforce 
the guarantees recognized and enacted by Congress.\655\

        \649\M. Farrand, op. cit., n. 1, 22, 211-212, 220, 244; 2 id., 
146-147, 186-187.
        \650\Id., 423-424, 430, 431.
        \651\1 Stat. 73. The district courts were given cognizance of 
``suits for penalties and forfeitures incurred, under the laws of the 
United States'' and ``of all causes where an alien sues for a tort only 
in violation of the law of nations or a treaty of the United States. 
. . .'' Id., 77. Plenary federal question jurisdiction was conferred by 
the Act of February 13, 1801, Sec. 11, 2 Stat. 92, but this law was 
repealed by the Act of March 8, 1802, 2 Stat. 132. On Sec. 25 of the 
1789 Act, providing for appeals to the Supreme Court from state court 
constitutional decisions, see supra, n.582.
        \652\Act of April 10, 1790, Sec. 5, 1 Stat. 111, as amended, Act 
of February 21, 1793, Sec. 6, 1 Stat. 322 (suits relating to patents). 
Limited removal provisions were also enacted.
        \653\Act of April 9, 1866, Sec. 3, 14 Stat, 27; Act of May 31, 
1870, Sec. 8, 16 Stat. 142; Act of February 28, 1871, Sec. 15, 16 Stat. 
438; Act of April 20, 1871, Sec. Sec. 2, 6, 17 Stat. 14, 15.
        \654\Act of March 3, 1875, Sec. 1, 18 Stat. 470, now 28 U.S.C. 
Sec. 1331(a). The classic treatment of the subject and its history is F. 
Frankfurter & J. Landis, op. cit., n. 12.
        \655\For a brief summary, see Hart & Wechsler, op. cit., n.250, 

        When a Case Arises Under.--The 1875 statute and its present form 
both speak of civil suits ``arising under the Constitution, laws, or 
treaties of the United States,''\656\ the language of the Constitution. 
Thus, many of the early cases relied heavily upon Chief Justice 
Marshall's construction of the constitutional language to interpret the 
statutory language.\657\ The result was probably to accept more 
jurisdiction than Congress had intended to convey.\658\ Later cases take 
a somewhat more restrictive course.

        \656\28 U.S.C. Sec. 1331(a). The original Act was worded 
slightly differently.
        \657\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 738 
(1824). See also Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 379 (1821).
        \658\C. Wright, Handbook of the Law of Federal Courts (St. Paul: 
4th ed. 1983), Sec. 17.

        Determination whether there is federal question jurisdiction is 
made on the basis of the plaintiff's pleadings and not upon the response 
or the facts as they may develop.\659\ Plaintiffs seeking access to 
federal courts on this ground must set out a federal claim which is 
``well-pleaded'' and the claim must be real and substantial and may not 
be without color of merit.\660\ Plaintiffs may not anticipate that 
defendants will raise a federal question in answer to the

[[Page 715]]
action.\661\ But what exactly must be pleaded to establish a federal 
question is a matter of considerable uncertainty in many cases. It is no 
longer the rule that when federal law is an ingredient of the claim, 
there is a federal question.\662\

        \659\See generally Merrill Dow Pharmaceuticals, Inc. v. 
Thompson, 478 U.S. 804 (1986); Franchise Tax Board v. Construction 
Laborers Vacation Trust, 463 U.S. 1 (1983).
        \660\Newburyport Water Co. v. City of Newburyport, 193 U.S. 561, 
576 (1904); Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 
(1933); Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923). If the 
complaint states a case arising under the Constitution or federal law, 
federal jurisdiction exists even though on the merits the party may have 
no federal right. In such a case, the proper course for the court is to 
dismiss for failure to state a claim on which relief can be granted 
rather than for want of jurisdiction. Bell v. Hood, 327 U.S. 678 (1946). 
Of course, dismissal for lack of jurisdiction is proper if the federal 
claim is frivolous or obviously insubstantial. Levering & Garrigues Co. 
v. Morrin, 289 U.S. 103, 105 (1933).
        \661\Louisville & N.R. Co. v. Mottley, 211 U.S. 149 (1908). See 
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950); Phillips 
Petroleum Co. v. Texaco, Inc., 415 U.S. 125 (1974).
        \662\Such was the rule derived from Osborn v. Bank of the United 
States, 9 Wheat. (22 U.S.) 738 (1824). See Franchise Tax Board v. 
Construction Laborers Vacation Trust, 463 U.S. 1 (1983); Merrell Dow 
Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986).

        Many suits will present federal questions because a federal law 
creates the action.\663\ Perhaps Justice Cardozo presented the most 
understandable line of definition, while cautioning that ``[t]o define 
broadly and in the abstract `a case arising under the Constitution or 
laws of the United States' has hazards [approaching futility].''\664\ 
``How and when a case arises `under the Constitution or laws of the 
United States' has been much considered in the books. Some tests are 
well established. To bring a case within the statute, a right or 
immunity created by the Constitution or laws of the United States must 
be an element, and an essential one, of the plaintiff's cause of action. 
. . . The right or immunity must be such that it will be supported if 
the Constitution or laws of the United States are given one construction 
or effect, and defeated if they receive another. . . . A genuine and 
present controversy, not merely a possible or conjectural one, must 
exist with reference thereto. . . .\665\

        \663\American Well Works Co. v. Layne & Bowler Co., 241 U.S. 
257, 260 (1916). Compare Albright v. Teas, 106 U.S. 613 (1883), and 
People of Puerto Rico v. Russell & Co., 288 U.S. 476 (1933), with 
Feibelman v. Packard. 109 U.S. 421 (1883), and The Fair v. Kohler Die & 
Specialty Co., 228 U.S. 22 (1913).
        \664\Gully v. First National Bank in Meridian, 299 U.S. 109, 117 
        \665\Id., 112-113. Compare Wheeldin v. Wheeler, 373 U.S. 647 
(1963), with Bivens v. Six Unknown Named Agents of Federal Bureau of 
Narcotics, 403 U.S. 388 (1971). See also J. I. Case Co. v. Borak, 377 
U.S. 426 (1964): Smith v. Kansas City Title & Trust Co., 255 U.S. 180 

        It was long evident, though the courts were not very specific 
about it, that the federal question jurisdictional statute is and always 
was narrower than the constitutional ``arising under'' jurisdictional 
standard.\666\ Chief Justice Marshall in Osborn was interpreting the 
Article III language to its utmost extent, but the courts sometimes 
construed the statute equivalently, with doubtful results.\667\

        \666\For an express acknowledgment, see Verlinden B. V. v. 
Central Bank of Nigeria, 461 U.S. 480, 495 (1983). See also Shoshone 
Mining Co. v. Rutter, 177 U.S. 505 (1900); Romero v. International 
Terminal Operating Co., 358 U.S. 354, 379 n. 51 (1959).
        \667\E.g., Pacific Railroad Removal Cases, 115 U.S. 1 (1885), 
and see id., 24 (Chief Justice Waite dissenting).


[[Page 716]]

        Removal From State Court to Federal Court.--A limited right to 
``remove'' certain cases from state courts to federal courts was granted 
to defendants in the Judiciary Act of 1789,\668\ and from then to 1872 
Congress enacted several specific removal statutes, most of them 
prompted by instances of state resistance to the enforcement of federal 
laws through harassment of federal officers.\669\ The 1875 Act 
conferring general federal question jurisdiction on the federal courts 
provided for removal of such cases by either party, subject only to the 
jurisdictional amount limitation.\670\ The present statute provides for 
the removal by a defendant of any civil action which could have been 
brought originally in a federal district court, with no diversity of 
citizenship required in ``federal question'' cases.\671\ A special civil 
rights removal statute permits removal of any civil or criminal action 
by a defendant who is denied or cannot enforce in the state court a 
right under any law providing for equal civil rights of persons or who 
is being proceeded against for any act under color of authority derived 
from any law providing for equal rights.\672\

        \668\Sec. 12, 1 Stat. 79.
        \669\The first was the Act of February 4, 1815, 8, 3 Stat. 198. 
The series of statutes is briefly reviewed in Willingham v. Morgan, 395 
U.S. 402, 405-406 (1969), and in H. Hart & H. Wechsler, op. cit., n.250, 
1192-1194. See 28 U.S.C. Sec. Sec. 1442, 1442a.
        \670\Act of March 3, 1875, Sec. 2, 18 Stat. 471. The present 
pattern of removal jurisdiction was established by the Act of March 3, 
1887, 24 Stat. 552, as amended, 25 Stat. 433.
        \671\28 U.S.C. Sec. 1441.
        \672\28 U.S.C. Sec. 1443.

        The constitutionality of congressional provisions for removal 
was challenged and readily sustained. Justice Story analogized removal 
to a form of exercise of appellate jurisdiction,\673\ and a later Court 
saw it as an indirect mode of exercising original jurisdiction and 
upheld its constitutionality.\674\ In Tennessee v. Davis,\675\ which 
involved a state attempt to prosecute a federal internal revenue agent 
who had killed a man while seeking to seize an illicit distilling 
apparatus, the Court invoked the right of the National Government to 
defend itself against state harassment and restraint. The power to 
provide for removal was discerned in the necessary and proper clause 
authorization to Congress to pass laws to carry into execution the 
powers vested in any other department or officer,

[[Page 717]]
here the judiciary.\676\ The judicial power of the United States, said 
the Court, embraces alike civil and criminal cases arising under the 
Constitution and laws and the power asserted in civil cases may be 
asserted in criminal cases. A case arising under the Constitution and 
laws ``is not merely one where a party comes into court to demand 
something conferred upon him by the Constitution or by a law or treaty. 
A case consists of the right of one party as well as the other, and may 
truly be said to arise under the Constitution or a law or a treaty of 
the United States whenever its correct decision depends upon the 
construction of either. Cases arising under the laws of the United 
States are such as grow out of the legislation of Congress, whether they 
constitute the right or privilege, or claim or protection, or defence of 
the party, in whole or in part, by whom they are asserted. . . .

        \673\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 347-351 
(1816). Story was not here concerned with the constitutionality of 
removal but with the constitutionality of Supreme Court review of state 
        \674\Chicago & Nw. Ry. Co. v. Whitton's Administrator, 13 Wall. 
(80 U.S.) 270 (1872). Removal here was based on diversity of 
citizenship. See also The Moses Taylor, 4 Wall. (71 U.S.) 411, 429-430 
(1867); The Mayor v. Cooper, 6 Wall. (73 U.S.) 247 (1868).
        \675\100 U.S. 257 (1880).
        \676\Id., 263-264.

        ``The constitutional right of Congress to authorize the removal 
before trial of civil cases arising under the laws of the United States 
has long since passed beyond doubt. It was exercised almost 
contemporaneously with the adoption of the Constitution, and the power 
has been in constant use ever since. The Judiciary Act of September 24, 
1789, was passed by the first Congress, many members of which had 
assisted in framing the Constitution; and though some doubts were soon 
after suggested whether cases could be removed from State courts before 
trial, those doubts soon disappeared.''\677\ The Court has broadly 
construed the modern version of the removal statute at issue in this 
case so that it covers all cases where federal officers can raise a 
colorable defense arising out of their duty to enforce federal law.\678\ 
Other removal statutes, notably the civil rights removal statute, have 
not been so broadly interpreted.\679\

        \677\Id., 264-265.
        \678\Willingham v. Morgan, 395 U.S. 402 (1969). See also 
Maryland v. Soper, 270 U.S. 9 (1926). Removal by a federal officer must 
be predicated on the allegation of a colorable federal defense. Mesa v. 
California, 489 U.S. 121 (1989). However, a federal agency is not 
permitted to remove under the statute's plain meaning. International 
Primate Protection League v. Administrators of Tulane Educational Fund, 
500 U.S. 72 (1991).
        \679\Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood 
v. Peacock, 384 U.S. 808 (1966); Johnson v. Mississippi, 421 U.S. 213 

        Corporations Chartered by Congress.--In Osborn v. Bank of the 
United States,\680\ Chief Justice Marshall seized upon the authorization 
for the Bank to sue and be sued as a grant by Congress to the federal 
courts of jurisdiction in all cases to which the bank

[[Page 718]]
was a party.\681\ Consequently, upon enactment of the 1875 law, the door 
was open to other federally chartered corporations to seek relief in 
federal courts. This opportunity was made actual when the Court in the 
Pacific Railroad Removal Cases\682\ held that tort actions against 
railroads with federal charters could be removed to federal courts 
solely on the basis of federal incorporation. In a series of acts, 
Congress deprived national banks of the right to sue in federal court 
solely on the basis of federal incorporation in 1882,\683\ deprived 
railroads holding federal charters of this right in 1915,\684\ and 
finally in 1925 removed from federal jurisdiction all suits brought by 
federally chartered corporations on the sole basis of such 
incorporation, except where the United States holds at least half of the 

        \680\9 Wheat. (22 U.S.) 738 (1824).
        \681\The First Bank could not sue because it was not so 
authorized. Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61 
(1809). The language, which Marshall interpreted as conveying 
jurisdiction, was long construed simply to give a party the right to sue 
and be sued without itself creating jurisdiction,. Bankers Trust Co. v. 
Texas & P. Ry. Co., 241 U.S. 295 (1916), but in American National Red 
Cross v. S. G., 112 S.Ct. 2465 (1992), a 5-to-4 decision, the Court held 
that when a federal statutory charter expressly mentions the federal 
courts in its ``sue and be sued'' provision the charter creates original 
federal-question jurisdiction as well, although a general authorization 
to sue and be sued in courts of general jurisdiction, including federal 
courts, without expressly mentioning them, does not confer jurisdiction.
        \682\115 U.S. 1 (1885).
        \683\Sec. 4, 22 Stat. 162.
        \684\Sec. 5, 38 Stat. 803.
        \685\See 28 U.S.C. Sec. 1349.

        Federal Questions Resulting from Special Jurisdictional 
Grants.--In the Labor-Management Relations Act of 1947, Congress 
authorized federal courts to entertain suits for violation of collective 
bargaining agreements without respect to the amount in controversy or 
the citizenship of the parties.\686\ Although it is likely that Congress 
meant no more than that labor unions could be suable in law or equity, 
in distinction from the usual rule, the Court construed the grant of 
jurisdiction to be more than procedural and to empower federal courts to 
apply substantive federal law, divined and fashioned from the policy of 
national labor laws, in such suits.\687\ State courts are not disabled 
from hearing actions brought

[[Page 719]]
under the section,\688\ but they must apply federal law.\689\ 
Developments under this section illustrate the substantive importance of 
many jurisdictional grants and indicate how the workload of the federal 
courts may be increased by unexpected interpretations of such 

        \686\Sec. 301, 61 Stat. 156 (1947), 29 U.S.C. Sec. 185.
        \687\Textile Workers Union v. Lincoln Mills, 353 U.S. 448 
(1957). Earlier the Court had given the section a restricted reading in 
Assn. of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 
348 U.S. 437 (1955), at least in part because of constitutional doubts 
that Sec. 301 cases in the absence of diversity of citizenship presented 
a federal question sufficient for federal jurisdiction. Id., 449-452, 
459-461 (opinion of Justice Frankfurter). In Lincoln Mills, supra, the 
Court resolved this difficulty by ruling that federal law was at issue 
in Sec. 301 suits and thus cases arising under Sec. 301 presented 
federal questions. 353 U.S., 457. The particular holding of 
Westinghouse, that no jurisdiction exists under Sec. 301 for suits to 
enforce personal rights of employees claiming unpaid wages, was 
overturned in Smith v. Evening News Assn., 371 U.S. 195 (1962).
        \688\Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962).
        \689\Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95 
(1962). State law is not, however, to be totally disregarded. ``State 
law, if compatible with the purpose of Sec. 301, may be resorted to in 
order to find the rule that will best effectuate the federal policy. 
. . . Any state law applied, however, will be absorbed as federal law 
and will not be an independent source of private rights.'' Textile 
Workers Union v. Lincoln Mills, 353 U.S. 448, 457 (1957).
        \690\For example, when federal regulatory statutes create new 
duties without explicitly creating private federal remedies for their 
violation, the readiness or unreadiness of the federal courts to infer 
private causes of action is highly significant. While inference is an 
acceptable means of judicial enforcement of statutes, e.g., Texas & 
Pacific R. Co. v. Rigsby, 241 U.S. 33 (1916), the Court began broadly to 
construe statutes to infer private actions only with J.I. Case Co. v. 
Boak, 377 U.S. 426 (1964). See Cort v. Ash, 422 U.S. 66 (1975). More 
recently, influenced by a separation of powers critique of implication 
by Justice Powell, the Court drew back and asserted it will imply an 
action only in instances of fairly clear congressional intent. Cannon v. 
University of Chicago, 441 U.S. 677 (1979); California v. Sierra Club, 
451 U.S. 287 (1981); Middlesex County Sewerage Auth. v. National Sea 
Clammers Assn., 453 U.S. 1 (1981); Merrill, Lynch v. Curran, 456 U.S. 
353 (1982); Thompson v. Thompson, 484 U.S. 174 (1988); Karahalios v. 
National Federation of Federal Employees, 489 U.S. 527 (1989).
        The Court appeared more ready to infer private causes of action 
for constitutional violations, Bivens v. Six Unknown Named Agents, 403 
U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979); Carlson v. 
Green, 446 U.S. 14 (1980), but it has retreated here as well, hesitating 
to find implied actions. E.g., Chappell v. Wallace, 462 U.S. 296 (1983); 
Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487 U.S. 412 
(1988). ``Federal common law'' may exist in a number of areas where 
federal interests are involved and federal courts may take cognizance of 
such suits under their ``arising under'' jurisdiction. E.g., Illinois v. 
Milwaukee, 406 U.S. 91 (1972); International Paper Co. v. Ouellette, 479 
U.S. 481 (1987). And see County of Oneida v. Oneida Indian Nation, 470 
U.S. 226, 236-240 (1985); National Farmers Union Ins. Cos. v. Crow 
Tribe, 471 U.S. 845 (1985). The Court is, however, somewhat wary of 
finding ``federal common law'' in the absence of some congressional 
authorization to formulate substantive rules, Texas Industries v. 
Radcliff Materials, 451 U.S. 630 (1981), and Congress may always 
statutorily displace the judicially created law. City of Milwaukee v. 
Illiniois, 451 U.S. 304 (1981). Finally, federal courts have federal 
question jurisdiction of claims created by state law if there exists an 
important necessity for an interpretation of an act of Congress. Smith 
v. Kansas City Title & Trust Co., 255 U.S. 180 (1921).

        Civil Rights Act Jurisdiction.--Perhaps the most important of 
the special federal question jurisdictional statutes is that conferring 
jurisdiction on federal district courts to hear suits challenging the 
deprivation under color of state law or custom of any right, privilege, 
or immunity secured by the Constitution or by any act of Congress 
providing for equal rights.\691\ Because it contains no

[[Page 720]]
jurisdictional amount provision\692\ (while the general federal question 
statute until recently did)\693\ and because the Court has held 
inapplicable the judicially-created requirement that a litigant exhaust 
his state remedies before bringing federal action,\694\ the statute has 
been heavily utilized, resulting in a formidable caseload, by plaintiffs 
attacking racial discrimination, malapportionment and suffrage 
restrictions, illegal and unconstitutional police practices, state 
restrictions on access to welfare and other public assistance, and a 
variety of other state and local governmental practices.\695\ Congress 
has encouraged utilization of the two statutes by providing for 
attorneys' fees under Sec. 1983\696\ and by enacting related and 
specialized complementary statutes.\697\ The Court in recent years has 
generally interpreted Sec. 1983 and its jurisdictional statute broadly, 
but it has also sought to restrict to some extent the kinds

[[Page 721]]
of claims that may be brought in federal courts.\698\ It should be noted 
that Sec. 1983 and Sec. 1343(3) need not always go together, inasmuch as 
Sec. 1983 actions may be brought in state courts.\699\

        \691\28 U.S.C. Sec. 1343(3). The cause of action to which this 
jurisdictional grant applies is 42 U.S.C. Sec. 1983, making liable and 
subject to other redress any person who, acting under color of state 
law, deprives any person of any rights, privileges, or immunities 
secured by the Constitution and laws of the United States. For 
discussion of the history and development of these two statutes, see 
Monroe v. Pape, 365 U.S. 167 (1961); Lynch v. Household Finance Corp., 
405 U.S. 538 (1972); Monell v. New York City Dept. of Social Services, 
436 U.S. 658 (1978), Chapman v. Houston Welfare Rights Org., 441 U.S. 
600 (1979); Maine v. Thiboutot, 448 U.S. 1 (1980). Although the two 
statutes originally had the same wording in respect to ``the 
Constitution and laws of the United States,'' when the substantive and 
jurisdictional aspects were separated and codified, Sec. 1983 retained 
the all-inclusive ``laws'' provision, while Sec. 1343(3) read ``any Act 
of Congress providing for equal rights.'' The Court has interpreted the 
language of the two statutes literally, so that while claims under laws 
of the United States need not relate to equal rights but may encompass 
welfare and regulatory laws, Maine v. Thiboutot, supra; but see 
Middlesex County Sewerage Auth. v. National Sea Clammers Assn., 453 U.S. 
1 (1981), such suits if they do not spring from an act providing for 
equal rights may not be brought under Sec. 1343(3). Chapman v. Houston 
Welfare Rights Org., supra. This was important when there was a 
jurisdictional amount provision in the federal question statute but is 
of little significance today.
        \692\See Hague v. CIO, 307 U.S. 496 (1939). Following Hague, it 
was argued that only cases involving personal rights, that could not be 
valued in dollars, could be brought under Sec. 1343(3), and that cases 
involving property rights, which could be so valued, had to be brought 
under the federal question statute. This attempted distinction was 
rejected in Lynch v. Household Finance Corp., 405 U.S. 538, 546-548 
(1972). On the valuation of constitutional rights, see Carey v. Piphus, 
435 U.S. 247 (1978). And see Memphis Community School Dist. v. Stachura, 
477 U.S. 299 (1986) (compensatory damages must be based on injury to the 
plaintiff, not on some abstract valuation of constitutional rights).
        \693\28 U.S.C. Sec. 1331 was amended in 1976 and 1980 to 
eliminate the jurisdictional amount requirement. P.L. 94-574, 90 Stat. 
2721; P.L. 96-486, 94 Stat. 2369.
        \694\Patsy v. Board of Regents, 457 U.S. 496 (1982). This had 
been the rule since at least McNeese v. Board of Education, 373 U.S. 668 
(1963). See also Felder v. Casey, 487 U.S. 131 (1988) (state notice of 
claim statute, requiring notice and waiting period before bringing suit 
in state court under Sec. 1983, is preempted).
        \695\Thus, such notable cases as Brown v. Board of Education, 
347 U.S. 483 (1954), and Baker v. Carr, 369 U.S. 186 (1962), arose under 
the statutes.
        \696\Civil Rights Attorneys' Fees Award Act of 1976, P.L. 94-
559, 90 Stat. 2641, amending 42 U.S.C. Sec. 1988. See Hutto v. Finney, 
437 U.S. 678 (1978); Maine v. Thiboutot, 448 U.S. 1 (1980).
        \697\Civil Rights of Institutionalized Persons Act, P.L. 96-247, 
94 Stat. 349 (1980), 42 U.S.C. Sec. 1997 et seq.
        \698\E.g., Parratt v. Taylor, 451 U.S. 527 (1981); Ingraham v. 
Wright, 430 U.S. 651 (1977).
        \699\Maine v. Thiboutot, 448 U.S. 1 (1980).

        Pendent Jurisdiction.--Once jurisdiction has been acquired 
through allegation of a federal question not plainly wanting in 
substance,\700\ a federal court may decide any issue necessary to the 
disposition of a case, notwithstanding that other non-federal questions 
of fact and law may be involved therein.\701\ ``Pendent jurisdiction,'' 
as this form is commonly called, exists whenever the state and federal 
claims ``derive from a common nucleus of operative fact'' and are such 
that a plaintiff ``would ordinarily be expected to try them all in one 
judicial proceeding.''\702\ Ordinarily, it is a rule of prudence that 
federal courts should not pass on federal constitutional claims if they 
may avoid it and should rest their conclusions upon principles of state 
law where possible.\703\ But the federal court has discretion whether to 
hear the pendent state claims in the proper case. Thus, the trial court 
should look to ``considerations of judicial economy, convenience and 
fairness to litigants'' in exercising its discretion and should avoid 
needless decisions of state law. If the federal claim, though 
substantial enough to confer jurisdiction, was dismissed before trial, 
or if the state claim was substantially predominate, the court would be 
justified in dismissing the state claim.\704\

        \700\Levering & Garringues Co. v. Morrin, 289 U.S. 103, 105 
(1933); Hagans v. Lavine, 415 U.S. 528, 534-543 (1974).
        \701\Osborn v. Bank of the United States, 9 Wheat. (22 U.S.) 
738, 822-828 (1824); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 
175 (1909); Hurn v. Oursler, 289 U.S. 238 (1933); United Mine Workers v. 
Gibbs, 383 U.S. 715 (1966).
        \702\Id., 725. This test replaced a difficult-to-apply test of 
Hurn v. Oursler, 289 U.S. 238, 245-246 (1933).
        \703\Siler v. Louisville & Nashville R. Co., 213 U.S. 175 
(1909); Greene v. Louisville & Interurban R. Co., 244 U.S. 499 (1917); 
Hagans v. Lavine, 415 U.S. 528, 546-550 (1974). In fact, it may be an 
abuse of discretion for a federal court to fail to decide on an 
available state law ground instead of reaching the federal 
constitutional question. Schmidt v. Oakland Unified School Dist., 457 
U.S. 594 (1982) (per curiam). However, narrowing previous law, the Court 
held in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 
(1984), held that when a pendent claim of state law involves a claim 
that is against a State for purposes of the Eleventh Amendment federal 
courts may not adjudicate it.
        \704\United Mine Workers v. Gibbs, 383 U.S. 715, 726-727 (1966).

        A variant of pendent jurisdiction, sometimes called ``ancillary 
jurisdiction,'' is the doctrine allowing federal courts to acquire 
jurisdiction entirely of a case presenting two federal issues, although 
it might properly not have had jurisdiction of one of the issues if it

[[Page 722]]
had been independently presented.\705\ Thus, in an action under a 
federal statute, a compulsory counterclaim not involving a federal 
question is properly before the court and should be decided.\706\ The 
concept has been applied to a claim otherwise cognizable only in 
admiralty when joined with a related claim on the law side of the 
federal court and in this way to give an injured seaman a right to jury 
trial on all of his claims when ordinarily the claim cognizable only in 
admiralty would be tried without a jury.\707\ And a colorable 
constitutional claim has been held to support jurisdiction over a 
federal statutory claim arguably not within federal jurisdiction.\708\

        \705\The initial decision was Freeman v. Howe, 24 How. (65 U.S.) 
450 (1861), in which federal jurisdiction was founded on diversity of 
        \706\Moore v. New York Cotton Exchange, 270 U.S. 593 (1926).
        \707\Romero v. International Terminal Operating Co., 358 U.S. 
354, 380-381 (1959); Fitzgerald v. United States Lines Co., 374 U.S. 16 
        \708\Rosado v. Wyman, 397 U.S. 397, 400-405 (1970).

        Still another variant is the doctrine of ``pendent parties,'' 
under which a federal court could take jurisdiction of a state claim 
against one party if it were related closely enough to a federal claim 
against another party, even though there was no independent 
jurisdictional base for the state claim.\709\ While the Supreme Court at 
first tentatively found some merit in the idea,\710\ in Finley v. United 
States,\711\ by a 5-to-4 vote the Court firmly disapproved of the 
pendent party concept and cast considerable doubt on the other prongs of 
pendent jurisdiction as well. Pendent party jurisdiction, Justice Scalia 
wrote for the Court, was within the constitutional grant of judicial 
power, but to be operable it must be affirmatively granted by 
congressional enactment.\712\ Within the year, Congress supplied the 
affirmative grant, adopting not only pendent party jurisdiction but 
codifying as well pendent jurisdiction and ancillary jurisdiction under 
the name of ``supplemental jurisdiction.''\713\

        \709\Judge Friendly originated the concept in Astor-Honor, Inc. 
v. Grosset & Dunlap, Inc., 441 F.2d 627 (2d Cir. 1971); Leather's Best, 
Inc. v. S. S. Mormaclynx, 451 F.2d 800 (2d Cir. 1971).
        \710\Aldinger v. Howard, 427 U.S. 1 (1976).
        \711\490 U.S. 545 (1989).
        \712\Id., 553, 556.
        \713\Act of Dec. 1, 1990, P. L. 101-650, 104 Stat. 5089, 
Sec. 310, 28 U.S.C. Sec. 1367.

        Thus, these interrelated doctrinal standards seem now well-

        Protective Jurisdiction.--A conceptually difficult doctrine, 
which approaches the verge of a serious constitutional gap, is the 
concept of protective jurisdiction. Under this doctrine, it is argued 
that in instances in which Congress has legislative jurisdiction, it can 
confer federal jurisdiction, with the jurisdictional statute itself

[[Page 723]]
being the ``law of the United States'' within the meaning of Article 
III, even thoug Congress has enacted no substantive rule of decision and 
state law is to be applied. Put forward in controversial cases,\714\ the 
doctrine has neither been rejected nor accepted by the Supreme Court. In 
Verlinden B. V. v. Central Bank of Nigeria,\715\ the Court reviewed a 
congressional grant of jurisdiction to federal courts to hear suits by 
an alien against a foreign state, jurisdiction not within the ``arising 
under'' provision of article III. Federal substantive law was not 
applicable, that resting either on state or international law. Refusing 
to consider protective jurisdiction, the Court found that the statute 
regulated foreign commerce by promulgating rules governing sovereign 
immunity from suit and was a law requiring interpretation as a federal-
question matter. That the doctrine does raise constitutional doubts is 
perhaps grounds enough to avoid reaching it.\716\

        \714\National Mutual Ins. Co. v. Tidewater Transfer Co., 337 
U.S. 582 (1949); Tetile Workers v. Lincoln Mills, 353 U.S. 448 (1957); 
and see the bankruptcy cases, Schumacher v. Beeler, 293 U.S. 367 (1934); 
Williams v. Austrian, 331 U.S. 642 (1947).
        \715\461 U.S. 480 (1983).
        \716\E.g., Mesa v. California, 489 U.S. 121, 136-137 (1989) 
(would ``present grave constitutional problems).

        Supreme Court Review of State Court Decisions.--In addition to 
the constitutional issues presented by 25 of the Judiciary Act of 1789 
and subsequent enactments,\717\ questions have continued to arise 
concerning review of state court judgments which go directly to the 
nature and extent of the Supreme Court's appellate jurisdiction. Because 
of the sensitivity of federal-state relations and the delicate nature of 
the matters presented in litigation touching upon them, jurisdiction to 
review decisions of a state court is dependent in its exercise not only 
upon ascertainment of the existence of a federal question but upon a 
showing of exhaustion of state remedies and of the finality of the state 
judgment. Because the application of these standards to concrete facts 
is neither mechanical nor nondiscretionary, the Justices have often been 

[[Page 724]]
whether these requisites to the exercise of jurisdiction have been met 
in specific cases submitted for review by the Court.

        \717\On Sec. 25, see supra. The present statute is 28 U.S.C. 
Sec. 1257(a), which provides that review by writ of certiorari is 
available where the validity of a treaty or statute of the United States 
is drawn in question or where the validity of a statute of any State is 
drawn in question on the ground of its being repugnant to the 
Constitution, treaties, or laws of the United States, or where any 
title, right, privilege, or immunity is specially set up or claimed 
under the Constitution or the treaties or statutes of, or any commission 
held or authority exercised under, the United States. Prior to 1988, 
there was a right to mandatory appeal in cases in which a state court 
had found invalid a federal statute or treaty or in which a state court 
had upheld a state statute contested under the Constitution, a treaty, 
or a statute of the United States. See the Act of June 25, 1948, 62 
Stat. 929. The distinction between certiorari and appeal was abolished 
by the Act of June 27, 1988, P.L. 100-352, Sec. 3, 102 Stat. 662.

        The Court is empowered to review the judgments of ``the highest 
court of a State in which a decision could be had.''\718\ This will 
ordinarily be the State's court of last resort, but it could well be an 
intermediate appellate court or even a trial court if its judgment is 
final under state law and cannot be reviewed by any state appellate 
court.\719\ The review is of a final judgment below. ``It must be 
subject to no further review or correction in any other state tribunal; 
it must also be final as an effective determination of the litigation 
and not of merely interlocutory or intermediate steps therein. It must 
be the final word of a final court.''\720\ The object of this rule is to 
avoid piecemeal interference with state court proceedings; it promotes 
harmony by preventing federal assumption of a role in a controversy 
until the state court efforts are finally resolved.\721\ For similar 
reasons, the Court requires that a party seeking to litigate a federal 
constitutional issue on appeal of a state court judgment must have 
raised that issue with sufficient precision to have enabled the state 
court to have considered it and she must have raised the issue at the 
appropriate time below.\722\

        \718\28 U.S.C. Sec. 1257(a). See R. Stern & E. Gressman, Supreme 
Court Practice (Washington; 6th ed. 1986), ch. 3.
        \719\Grovey v. Townsend, 295 U.S. 45, 47 (1935); Talley v. 
California, 362 U.S. 60, 62 (1960); Thompson v. City of Louisville, 362 
U.S. 199, 202 (1960); Metlakatla Indian Community v. Egan, 363 U.S. 555 
(1960); Powell v. Texas, 392 U.S. 516, 517 (1968); Koon v. Aiken, 480 
U.S. 943 (1987). In Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821), 
the judgment reviewed was that of the Quarterly Session Court for the 
Borough of Norfolk, Virginia.
        \720\Market Street R. Co., v. Railroad Comm., 324 U.S. 548, 551 
(1945). See also San Diego Gas & Electric Co. v. City of San Diego, 450 
U.S. 621 (1981); Flynt v. Ohio, 451 U.S. 619 (1981); Minnick v. 
California Dept. of Corrections, 452 U.S. 105 (1981). In recent years, 
however, the Court has developed a series of exceptions permitting 
review when the federal issue in the case has been finally determined 
but there are still proceedings in the lower state courts to come. Cox 
Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487 (1975). See also Fort 
Wayne Books v. Indiana, 489 U.S. 46, 53-57 (1989); Duquesne Light Co. v. 
Barasch, 488 U.S. 299, 304 (1989); NAACP v. Claiborne Hardware Co., 458 
U.S. 886, 907 n. 42 (1982).
        \721\Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62, 67-69 
(1948); Radio Station WOW v. Johnson, 326 U.S. 120, 123-124 (1945).
        \722\New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 
(1928); See also Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71. 
77 (1988); Webb v. Webb, 451 U.S. 493, 501 (1981). The same rule applies 
on habeas corpus petitions. E.g., Picard v. Connor, 404 U.S. 270 (1972).

        When the judgment of a state court rests on an adequate, 
independent determination of state law, the Court will not review the 
resolution of the federal questions decided, even though the resolution 
may be in error.\723\ ``The reason is so obvious that it has rarely been 
thought to warrant statement. It is found in the partitioning

[[Page 725]]
of power between the state and Federal judicial systems and in the 
limitations of our own jurisdiction. Our only power over state judgments 
is to correct them to the extent that they incorrectly adjudge federal 
rights. And our power is to correct wrong judgments, not to revise 
opinions. We are not permitted to render an advisory opinion, and if the 
same judgment would be rendered by the state court after we corrected 
its views of Federal laws, our review could amount to nothing more than 
an advisory opinion.''\724\ The Court is faced with two interrelated 
decisions: whether the state court judgment is based upon a nonfederal 
ground and whether the nonfederal ground is adequate to support the 
state court judgment. It is, of course, the responsibility of the Court 
to determine for itself the answer to both questions.\725\

        \723\Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590 (1874); 
Black v. Cutter Laboratories, 351 U.S. 292 (1956); Wilson v. Loew's, 
Inc., 355 U.S. 597 (1958).
        \724\Herb v. Pitcairn, 324 U.S. 117, 125-126 (1945).
        \725\E.g., Howlett by Howlett v. Rose, 496 U.S. 356, 366 (1990); 
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958).

        The first question may be raised by several factual situations. 
A state court may have based its decision on two grounds, one federal, 
one nonfederal.\726\ It may have based its decision solely on a 
nonfederal ground but the federal ground may have been clearly 
raised.\727\ Both federal and nonfederal grounds may have been raised 
but the state court judgment is ambiguous or is without written opinion 
stating the ground relied on.\728\ Or the state court may have decided 
the federal question although it could have based its ruling on an 
adequate, independent nonfederal ground.\729\ In any event, it is 
essential for purposes of review by the Supreme Court that it appear 
from the record that a federal question was presented, that the 
disposition of that question was necessary to the determination of the 
case, that the federal question was actually decided or that the 
judgment could not have been rendered without deciding it.\730\

        \726\Fox Film Corp. v. Muller, 296 U.S. 207 (1935); Cramp v. 
Board of Public Instruction, 368 U.S. 278 (1961).
        \727\Wood v. Chesborough, 228 U.S. 672, 676-680 (1913).
        \728\Lynch v. New York ex rel. Pierson, 293 U.S. 52, 54-55 
(1934); Williams v. Kaiser, 323 U.S. 471, 477 (1945); Durley v. Mayo, 
351 U.S. 277, 281 (1956); Klinger v. Missouri, 13 Wall. (80 U.S.) 257, 
263 (1872); cf. Department of Mental Hygiene v. Kirchner, 380 U.S. 194 
        \729\Poafpybitty v. Skelly Oil Co., U.S. 365, 375-376 (1968).
        \730\Southwestern Bell Tel. Co. v. Oklahoma, 303 U.S. 206 
(1938); Raley v. Ohio, 360 U.S. 423, 434-437 (1959). When there is 
uncertainty about what the state court did, the usual practice was to 
remand for clarification. Minnesota v. National Tea Co., 309 U.S. 551 
(1940); California v. Krivda, 409 U.S. 33 (1972). See California Dept. 
of Motor Vehicles v. Rios, 410 U.S. 425 (1973). Now, however, in a 
controversial decision, the Court has adopted a presumption that when a 
state court decision fairly appears to rest on federal law or to be 
interwoven with federal law, and when the adequacy and independence of 
any possible state law ground is not clear from the face of the opinion 
the Court will accept as the most reasonable explanation that the state 
court decided the case as it did because it believed that federal law 
required it to do so. If the state court wishes to avoid the presumption 
it must make clear by a plain statement in its judgment or opinion that 
discussed federal law did not compel the result, that state law was 
dispositive. Michigan v. Long, 463 U.S. 1032 (1983). See Harris v. Reed, 
489 U.S. 255, 261 n. 7 (1989) (collecting cases); Coleman v. Thompson, 
501 U.S. 722 (1991) (applying the rule in a habeas case).


[[Page 726]]

        With regard to the second question, in order to preclude Supreme 
Court review, the nonfederal ground must be broad enough, without 
reference to the federal question, to sustain the state court 
judgment,\731\ the nonfederal ground must be independent of the federal 
question,\732\ and the nonfederal ground must be a tenable one.\733\ 
Rejection of a litigant's federal claim by the state court on state 
procedural grounds, such as failure to tender the issue at the 
appropriate time, will ordinarily preclude Supreme Court review as an 
adequate independent state ground,\734\ so long as the local procedure 
does not discriminate against the raising of federal claims and has not 
been used to stifle a federal claim or to evade vindication of federal 

        \731\Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590, 636 
(1874). A new state rule cannot be invented for the occasion in order to 
defeat the federal claim. E.g., Ford v. Georgia, 498 U.S. 411, 420-425 
        \732\Enterprise Irrigation District v. Farmers' Mutual Canal 
Co., 243 U.S. 157, 164 (1917); Ivanhoe Irrigation District v. McCracken, 
357 U.S. 275, 290 (1958).
        \733\Enterprise Irrigation District v. Farmers' Mutual Canal 
Co., 243 U.S. 157, 164 (1917); Ward v. Love County, 253 U.S. 17. 22 
(1920); Staub v. Baxley, 355 U.S. 313, 319-320 (1958).
        \734\Nickel v. Cole, 256 U.S. 222, 225 (1921); Wolfe v. North 
Carolina, 364 U.S. 177, 195 (1960). But see Davis v. Wechsler, 263 U.S. 
22 (1923); Brown v. Western Ry. of Alabama, 338 U.S. 294 (1949).
        \735\Davis v. Wechsler, 263 U.S. 22, 24-25 (1923); NAACP v. 
Alabama ex rel. Patterson, 357 U.S. 449, 455-458 (1958); Barr v. City of 
Columbia, 378 U.S. 146, 149 (1964). This rationale probably explains 
Henry v. Mississippi, 379 U.S. 443 (1965). See also in the criminal 
area, Edelman v. Califonia, 344 U.S. 357, 362 (1953) (dissenting 
opinion); Brown v. Allen, 344 U.S. 443, 554 (1953) (dissenting opinion); 
Williams v. Georgia, 349 U.S. 375, 383 (1955); Monger v. Florida, 405 
U.S. 958 (1972) (dissenting opinion).
      Suits Affecting Ambassadors, Other Public Ministers, and Consuls

        The earliest interpretation of the grant of original 
jurisdiction to the Supreme Court came in the Judiciary Act of 1789, 
which conferred on the federal district courts jurisdiction of suits to 
which a consul might be a party. This legislative interpretation was 
sustained in 1793 in a circuit court case in which the judges held the 
Congress might vest concurrent jurisdiction involving consuls in the 
inferior courts and sustained an indictment against a consul.\736\ Many 
years later, the Supreme Court held that consuls could be sued in the 
federal courts,\737\ and in another case in the same year declared 
sweepingly that Congress could grant concur

[[Page 727]]
rent jurisdiction to the inferior courts in cases where Supreme Court 
has been invested with original jurisdiction.\738\ Nor does the grant of 
original jurisdiction to the Supreme Court in cases affecting 
ambassadors and consuls of itself preclude suits in state courts against 
consular officials. The leading case is Ohio ex rel. Popovici v. 
Agler,\739\ in which a Rumanian vice-consul contested an Ohio judgment 
against him for divorce and alimony.

        \736\United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C. Pa. 
        \737\Bors v. Preston, 111 U.S. 252 (1884).
        \738\Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
        \739\280 U.S. 379, 383, 384 (1930). Now precluded by 28 U.S.C. 
Sec. 1351.

        A number of incidental questions arise in connection with the 
phrase ``affecting ambassadors and consuls.'' Does the ambassador or 
consul to be affected have to be a party in interest, or is a mere 
indirect interest in the outcome of the proceeding sufficient? In United 
States v. Ortega,\740\ the Court ruled that a prosecution of a person 
for violating international law and the laws of the United States by 
offering violence to the person of a foreign minister was not a suit 
``affecting'' the minister but a public prosecution for vindication of 
the laws of nations and the United States. Another question concerns the 
official status of a person claiming to be an ambassador or consul.

        \740\11 Wheat. (24 U.S.) 467 (1826).

        The Court has refused to review the decision of the Executive 
with respect to the public character of a person claiming to be a public 
minister and has laid down the rule that it has the right to accept a 
certificate from the Department of State on such a question.\741\ A 
third question was whether the clause included ambassadors and consuls 
accredited by the United States to foreign governments. The Court held 
that it includes only persons accredited to the United States by foreign 
governments.\742\ However, in matters of especial delicacy, such as 
suits against ambassadors and public ministers or their servants, where 
the law of nations permits such suits, and in all controversies of a 
civil nature in which a State is a party, Congress until recently made 
the original jurisdiction of the Supreme Court exclusive of that of 
other courts.\743\ By its compliance with the congressional distribution 
of exclusive and concurrent original jurisdiction, the Court has tacitly 
sanctioned the power of Congress to make such jurisdiction exclusive or 
concurrent as it may choose.

        \741\In re Baiz, 135 U.S. 403, 432 (1890).
        \742\Ex parte Gruber, 269 U.S. 302 (1925).
        \743\1 Stat. 80-81 (1789). Jurisdiction in the Supreme Court 
since 1978 has been original but not exclusive. P.L. 95-393, Sec. 8(b), 
92 Stat. 810, 28 U.S.C. Sec. 1251(b)(1).

[[Page 728]]

      Cases of Admiralty and Maritime Jurisdiction

        The admiralty and maritime jurisdiction of the federal courts 
had its origins in the jurisdiction vested in the courts of the Admiral 
of the English Navy. Prior to independence, vice-admiralty courts were 
created in the Colonies by commissions from the English High Court of 
Admiralty. After independence, the States established admiralty courts, 
from which at a later date appeals could be taken to a court of appeals 
set up by Congress under the Articles of Confederation.\744\ Since one 
of the objectives of the Philadelphia Convention was the promotion of 
commerce through removal of obstacles occasioned by the diverse local 
rules of the States, it was only logical that it should contribute to 
the development of a uniform body of maritime law by establishing a 
system of federal courts and granting to these tribunals jurisdiction 
over admiralty and maritime cases.\745\

        \744\G. Gilmore & C. Black, The Law of Admiralty (Brooklyn: 
1957), ch. 1.
        \745\Nothing really appears in the records of the Convention 
which sheds light on the Framers' views about admiralty. The present 
clause was contained in the draft of the Committee on Detail. 2 M. 
Farrand, op. cit., n. 1, 186-187. None of the plans presented to the 
Convention, with the exception of an apparently authentic Charles 
Pinckney plan. 3 id., 601-604, 608, had mentioned an admiralty 
jurisdiction in national courts. See Putnam, How the Federal Courts Were 
Given Admiralty Jurisdiction, 10 Corn. L.Q. 460 (1925).

        The Constitution uses the terms ``admiralty and maritime 
jurisdiction'' without defining them. Though closely related, the words 
are not synonyms. In England the word ``maritime'' referred to the cases 
arising upon the high seas, whereas ``admiralty'' meant primarily cases 
of a local nature involving police regulations of shipping, harbors, 
fishing, and the like. A long struggle between the admiralty and common 
law courts had, however, in the course of time resulted in a 
considerable curtailment of English admiralty jurisdiction. A much 
broader conception of admiralty and maritime jurisdiction existed in the 
United States at the time of the framing of the Constitution than in the 
Mother Country.\746\ At the very beginning of government under the 
Constitution, Congress conferred on the federal district courts 
exclusive original cognizance ``of all civil causes of admiralty and 
maritime jurisdiction, including all seizures under laws of impost, 
navigation or trade of the United States, where the seizures are made, 
on waters which are navigable from the sea by vessels of ten or more 
tons burthen, within their respective districts as well as upon the high 
seas; saving to

[[Page 729]]
suitors, in all cases, the right of a common law remedy, where the 
common law is competent to give it; . . .''\747\ This broad legislative 
interpretation of admiralty and maritime jurisdiction soon won the 
approval of the federal circuit courts, which ruled that the extent of 
admiralty and maritime jurisdiction was not to be determined by English 
law but by the principles of maritime law as respected by maritime 
courts of all nations and adopted by most, if not by all, of them on the 
continent of Europe.\748\

        \746\G. Gilmore and C. Black, op. cit. n. 744, ch 1. In DeLovio 
v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass 1815), Justice Story 
delivered a powerful historical and jurisprudential argument against the 
then-restrictive English system. See also Waring v. Clarke, 5 How. (46 
U.S.) 441, 451-459 (1847); New Jersey Steam Navigation Co. v. Merchants' 
Bank of Boston, 6 How. (47 U.S.) 34, 385-390 (1848).
        \747\Sec. 9, 1 Stat. 77 (1789), now 28 U.S.C. Sec. 1333 in only 
slightly changed fashion. For the classic exposition, see Black, 
Admiralty Jurisdiction: Critique and Suggestions, 50 Colum. L. Rev. 259 
        \748\E.g., DeLovio v. Boit, 7 Fed. Cas. 418 (No. 3776) (C.C.D. 
Mass. 1815) (Justice Story); The Seneca, 21 Fed. Cas. 1801 (No. 12670) 
C.C.E.D.Pa. 1829) Justice Washington).

        Although a number of Supreme Court decisions had earlier 
sustained the broader admiralty jurisdiction on specific issues,\749\ it 
was not until 1848 that the Court ruled squarely in its favor, which it 
did by declaring that ``whatever may have been the doubt, originally, as 
to the true construction of the grant, whether it had reference to the 
jurisdiction in England, or to the more enlarged one that existed in 
other maritime countries, the question has become settled by legislative 
and judicial interpretation, which ought not now to be disturbed.''\750\ 
The Court thereupon proceeded to hold that admiralty had jurisdiction in 
personam as well as in rem over controversies arising out of contracts 
of affreightment between New York and Providence.

        \749\The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner 
Sally, 2 Cr. (6 U.S.) 406 (1805): The Schooner Betsy, 4 Cr. (8 U.S.) 443 
(1808); The Samuel, 1 Wheat. (14 U.S.) 9 (1816); The Octavig, 1 Wheat. 
(14 U.S.) 20 (1816).
        \750\New Jersey Steam Navigation Co. v. Merchants' Bank of 
Boston, 6 How. (47 U.S.) 334, 386 (1848); see also Waring v. Clarke, 5 
How. (46 U.S.) 441 (1847).

        Power of Congress To Modify Maritime Law.--The Constitution does 
not identify the source of the substantive law to be applied in the 
federal courts in cases of admiralty and maritime jurisdiction. 
Nevertheless, the grant of power to the federal courts in Article III 
necessarily implies the existence of a substantive maritime law which, 
if they are required to do so, the federal courts can fashion for 
themselves.\751\ But what of the power of Congress in

[[Page 730]]
this area? In The Lottawanna,\752\ Justice Bradley undertook a 
definitive exposition of the subject. No doubt, the opinion of the Court 
notes, there exists ``a great mass of maritime law which is the same in 
all commercial countries,'' still ``the maritime law is only so far 
operative as law in any country as it is adopted by the laws and usages 
of that country.''\753\ ``The general system of maritime law which was 
familiar to the lawyers and statesmen of the country when the 
Constitution was adopted, was most certainly intended and referred to 
when it was declared in that instrument that the judicial power of the 
United States shall extend `to all cases of admiralty and maritime 
jurisdiction.' But by what criterion are we to ascertain the precise 
limits of the law thus adopted? The Constitution does not define it. 
. . .

        \751\Swift & Co. Packers v. Compania Columbiana Del Caribe, 339 
U.S. 684, 690, 691 (1950); Halcyon Lines v. Haenn Ship Ceiling & 
Refitting Corp., 342 U.S. 282, 285 (1952); Romero v. International 
Terminal Operating Co., 358 U.S. 354, 360-361 (1959). For a recent 
example, see Moragne v. States Marine Lines, 398 U.S. 375 (1970); United 
States v. Reliable Transfer Co., 421 U.S. 397 (1975). Compare The 
Lottawanna, 21 Wall. (88 U.S.) 558, 576-577 (1875) (``But we must always 
remember that the court cannot make the law, it can only declare it. If, 
within its proper scope, any change is desired in its rules, other than 
those of procedure, it must be made by the legislative department''). 
States can no more override rules of judicial origin than they can 
override acts of Congress. Wilburn Boat Co. v. Firemen's Fund Ins. Co., 
348 U.S. 310, 314 (1955).
        \752\21 Wall. (88 U.S.) 558 (1875).
        \753\Id., 572.

        ``One thing, however, is unquestionable; the Constitution must 
have referred to a system of law coextensive with, and operating 
uniformly in, the whole country. It certainly could not have been the 
intention to place the rules and limits of maritime law under the 
disposal and regulation of the several States, as that would have 
defeated the uniformity and consistency at which the Constitution aimed 
on all subjects of a commercial character affecting the intercourse of 
the States with each other or with foreign states.''\754\

        \754\Id., 574-575.

        ``It cannot be supposed that the framers of the Constitution 
contemplated that the law should forever remain unalterable. Congress 
undoubtedly has authority under the commercial power, if no other, to 
introduce such changes as are likely to be needed.''\755\ That Congress' 
power to enact substantive maritime law was conferred by the commerce 
clause was assumed in numerous opinions,\756\ but later opinions by 
Justice Bradley firmly established that the source of power was the 
admiralty grant itself, as supplemented by the second prong of the 
necessary and proper clause.\757\ Thus, ``[a]s the Constitution extends 
the judicial power of the United States to `all cases of admiralty and 
maritime jurisdiction,' and as this jurisdiction is held to be 
exclusive, the power of legislation

[[Page 731]]
on the same subject must necessarily be in the national legislature and 
not in the state legislatures.''\758\ Rejecting an attack on a maritime 
statute as an infringment of intrastate commerce, Justice Bradley wrote: 
``It is unnecessary to invoke the power given the Congress to regulate 
commerce in order to find authority to pass the law in question. The act 
was passed in amendment of the maritime law of the country, and the 
power to make such amendments is coextensive with that law. It is not 
confined to the boundaries or class of subjects which limit and 
characterize the power to regulate commerce; but, in maritime matters, 
it extends to all matters and places to which the maritime law 

        \755\Id., 577.
        \756\E.g., The Daniel Ball, 10 Wall, (77 U.S.) 557, 564 (1871); 
Moore v. American Transp. Co., 24 How. (65 U.S.) 1, 39 (1861); 
Providence & N.Y. S.S. Co. v. Hill Mfg. Co., 109 U.S. 578 (1883); The 
Robert W. Parsons, 191 U.S. 17 (1903).
        \757\Butler v. Boston & S. S.S. Co., 130 U.S. 527 (1889); In re 
Garnett, 141 U.S. 1 (1891). The second prong of the necessary and proper 
clause is the authorization to Congress to enact laws to carry into 
execution the powers vested in other departments of the Federal 
Government. See Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 42 
        \758\Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889).
        \759\In re Garnett, 141 U.S. 1, 12 (1891). See also Southern 
Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917); Knickerbocker Ice Co. 
v. Stewart, 253 U.S. 149, 160 (1920); Crowell v. Benson, 285 U.S. 22, 55 
(1932). The Jones Act, under which injured seamen may maintain an action 
at law for damages, has been reviewed as an exercise of legislative 
power deducible from the admiralty clause. Panama R.R. Co. v. Johnson, 
264 U.S. 375, 386, 388, 391 (1924); Romero v. International Terminal 
Operating Co., 358 U.S. 354, 360-361 (1959). On the limits to the 
congressional power, see Panama R.R. Co. v. Johnson, supra, 386-387; 
Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21, 43-44 (1934).

        The law administered by federal courts in admiralty is therefore 
an amalgam of the general maritime law insofar as it is acceptable to 
the courts, modifications of that law by congressional amendment, the 
common law of torts and contracts as modified to the extent 
constitutionally possible by state legislation, and international prize 
law. This body of law is at all times subject to modification by the 
paramount authority of Congress acting in pursuance of its powers under 
the admiralty and maritime clause and the necessary and proper clause 
and, no doubt, the commerce clause, now that the Court's interpretation 
of that clause has become so expansive. Of this power there has been 
uniform agreement among the Justices of the Court.\760\

        \760\Thus, Justice McReynolds' assertion of the paramountcy of 
congressional power in Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 
(1917), was not disputed by the four dissenters in that case and is 
confirmed in subsequent cases critical of Jensen which in effect invite 
congressional modification of maritime law. E.g., Davis v. Dept. of 
Labor and Industries, 317 U.S. 249 (1942). The nature of maritime law 
has excited some relevant controversy. In American Ins. Co. v. Canter, 1 
Pet. (26 U.S.) 516, 545 (1828), Chief Justice Marshall declared that 
admiralty cases do not ``arise under the Constitution or laws of the 
United States'' but ``are as old as navigation itself; and the law, 
admiralty and maritime as it has existed for ages, is applied by our 
Courts to the cases as they arise.'' In Romero v. International Terminal 
Operating Co., 358 U.S. 354 (1959), the plaintiff sought a jury trial in 
federal court on a seaman's suit for personal injury on an admiralty 
claim, contending that cases arising under the general maritime law are 
``civil actions'' that arise ``under the Constitution, laws, or treaties 
of the United States,'' 28 U.S.C. Sec. 1331. Five Justices in an opinion 
by Justice Frankfurter disagreed. Maritime cases do not arise under the 
Constitution or laws of the United States for federal question purposes 
and must, absent diversity, be instituted in admiralty where there is no 
jury trial. The dissenting four, Justice Brennan for himself and Chief 
Justice Warren and Justices Black and Douglas, contended that maritime 
law, although originally derived from international sources, is 
operative within the United States only by virtue of having been 
accepted and adopted pursuant to Article III, and accordingly judicially 
originated rules formulated under authority derived from that Article 
are ``laws'' of the United States to the same extent as those enacted by 


[[Page 732]]

        Admiralty and Maritime Cases.--Admiralty and maritime 
jurisdiction comprises two types of cases: (1) those involving acts 
committed on the high seas or other navigable waters, and (2) those 
involving contracts and transactions connected with shipping employed on 
the seas or navigable waters. In the first category, which includes 
prize cases and torts, injuries, and crimes committed on the high seas, 
jurisdiction is determined by the locality of the act, while in the 
second category subject matter is the primary determinative factor.\761\ 
Specifically, contract cases include suits by seamen for wages,\762\ 
cases arising out of marine insurance policies,\763\ actions for 
towage\764\ or pilotage\765\ charges, actions on bottomry or 
respondentia bonds,\766\ actions for repairs on a vessel

[[Page 733]]
already used in navigation,\767\ contracts of affreightment,\768\ 
compensation for temporary wharfage,\769\ agreements of consortship 
between the masters of two vessels engaged in wrecking,\770\ and surveys 
of damaged vessels.\771\ That is, admiralty jurisdiction ``extends to 
all contracts, claims and services essentially maritime.''\772\ But the 
courts have never enunciated an unambiguous test which would enable one 
to determine in advance whether a given case is a maritime one or 
not.\773\ ``The boundaries of admiralty jurisdiction over contracts--as 
opposed to torts or crimes--being conceptual rather than spatial, have 
always been difficult to draw. Precedent and usage are helpful insofar 
as they exclude or include certain common types of contract. 
. . .''\774\

        \761\DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. 
Mass. 1815) (Justice Story); Waring v. Clarke, 5 How. (46 U.S.) 441 
        \762\Sheppard v. Taylor, 5 Pet. (30 U.S.) 675, 710 (1831). A 
seaman employed by the Government making a claim for wages cannot 
proceed in admiralty but must bring his action under the Tucker Act in 
the Court of Claims or in the district court if his claim does not 
exceed $10,000. Amell v. United States, 384 U.S. 158 (1966). In Kossick 
v. United Fruit Co., 365 U.S. 731 (1961), an oral agreement between a 
seaman and a shipowner whereby the latter in consideration of the 
seaman's forbearance to press his maritime right to maintenance and cure 
promised to assume the consequences of improper treatment of the seaman 
at a Public Health Service Hospital was held to be a maritime contract. 
See also Archawski v. Hanioti, 350 U.S. 532 (1956).
        \763\Insurance Co. v. Dunham, 11 Wall. (78 U.S.) 1, 31 (1871); 
Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310 (1955). 
Whether admiralty jurisdiction exists if the vessel is not engaged in 
navigation or commerce when the insurance claim arises is open to 
question. Jeffcott v. Aetna Ins. Co., 129 F. 2d 582 (2d Cir.), cert. 
den., 317 U.S. 663 (1942). Contracts and agreements to procure marine 
insurance are outside the admiralty jurisdiction. Compagnie Francaise De 
Navigation A Vapeur v. Bonnasse, 19 F. 2d 777 (2d Cir., 1927).
        \764\Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900). For 
recent Court difficulties with exculpatory features of such contracts, 
see Bisso v. Inland Waterways Corp., 349 U.S. 85 (1955); Boston Metals 
Co. v. The Winding Gulf, 349 U.S. 122 (1955); United States v. Nielson, 
349 U.S. 129 (1955); Southwestern Sugar & Molasses Co. v. River 
Terminals Corp., 360 U.S. 411 (1959); Dixilyn Drilling Corp. v. Crescent 
Towage & Salvage Co., 372 U.S. 697 (1963).
        \765\Atlee v. Packet Co., 21 Wall. (88 U.S.) 389 (1875); Ex 
parte McNiel, 13 Wall. (80 U.S.) 236 (1872). See also Sun Oil v. Dalzell 
Towing Co., 287 U.S. 291 (1932).
        \766\The Grapeshot, 9 Wall. (76 U.S.) 129 (1870); O'Brien v. 
Miller, 168 U.S. 287 (1897); The Aurora, 1 Wheat. (14 U.S.) 94 (1816); 
Delaware Mut. Safety Ins. Co. v. Gossler, 96 U.S. 645 (1877). But 
ordinary mortgages even though the securing property is a vessel, its 
gear, or cargo are not considered maritime contracts. Bogart v. The 
Steamboat John Jay, 17 How. (58 U.S.) 399 (1854); Detroit Trust Co. v. 
The Thomas Barlum, 293 U.S. 21, 32 (1934).
        \767\New Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922); The 
General Smith, 4 Wheat. (17 U.S.) 438 (1819). There is admiralty 
jurisdiction even though the repairs are not be be made in navigable 
waters but, perhaps, in dry dock. North Pacific SS. Co. v. Hall Brothers 
Marine R. & S. Co., 249 U.S. 119 (1919). But contracts and agreements 
pertaining to the original construction of vessels are not within 
admiralty jurisdiction. Peoples Ferry Co. v. Joseph Beers, 20 How. (61 
U.S.) 393 (1858); North Pacific S.S. Co. v. Hall Brothers Marine R. & S. 
Co., supra, 127.
        \768\New Jersey Steam Navigation Co. v. Merchants' Bank of 
Boston, 6 How. (47 U.S.) 344 (1848).
        \769\Ex Parte Easton, 95 U.S. 68 (1877).
        \770\Andrews v. Wall, 3 How. (44 U.S.) 568 (1845).
        \771\Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 412, 
415, 418 (1825); The Tilton, 23 Fed. Cas. 1277 (No. 14054) (C.C.D. Mass. 
1830) (Justice Story).
        \772\Ex parte Easton, 95 U.S. 68, 72 (1877). See, for a clearing 
away of some conceptual obstructions to the principle, Exxon Corp. v. 
Central Gulf Lines, Inc., 500 U.S. 603 (1991).
        \773\E.g., DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) 
(C.C.D. Mass. 1815) (Justice Story); The Steamboat Orleans v. Phoebus, 
11 Pet. (36 U.S.) 175, 183 (1837); The People's Ferry Co. v. Joseph 
Beers, 20 How. (61 U.S.) 393, 401 (1858); New England Marine Ins. Co. v. 
Dunham, 11 Wall. (78 U.S.) 1, 26 (1870); Detriot Trust Co. v. The Thomas 
Barlum, 293 U.S. 21, 48 (1934).
        \774\Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961).

        Maritime torts include injuries to persons,\775\ damages to 
property arising out of collisions or other negligent acts,\776\ and 
violent dispossession of property.\777\ The Court has expresed a 
willingness to ``recogniz[e] products liability, including strict 
liability, as part of the general maritime law.''\778\ Unlike contract 
cases, maritime tort jurisdiction historically depended exclusively upon 
the commission

[[Page 734]]
of the wrongful act upon navigable waters, regardless of any connection 
or lack of connection with shipping or commerce.\779\ The Court has now 
held, however, that in addition to the requisite situs a significant 
relationship to traditional maritime activity must exist in order for 
the admiralty jurisdiction of the federal courts to be invoked.\780\ 
Both the Court and Congress have created exceptions to the situs test 
for maritime tort jurisdiction to extend landward the occasions for 
certain connected persons or events to come within admiralty, not 
without a little controversy.\781\

        \775\The City of Panama, 101 U.S. 453 (1880). Reversing a long-
standing rule, the Court allowed recovery under general maritime law for 
the wrongful death of a seaman. Moragne v. States Marine Lines, 398 U.S. 
375 (1970); Miles v. Apex Marine Corp., 498 U.S. 19 (1991).
        \776\The Raithmoor, 241 U.S. 166 (1916); Erie R.R. Co. v. Erie 
Transportation Co., 204 U.S. 220 (1907)
        \777\L'Invincible, 1 Wheat (14 U.S.) 238 (1816); In re Fassett, 
142 U.S. 479 (1892).
        \778\East River Steamship Corp. v. Transamerica Delaval, 476 
U.S. 858 (1986) (holding, hoever, that there is no products liability 
action in admiralty for purely economic injury to the product itself, 
unaccompanied by personal injury, and that such actions should be based 
on the contract law of warranty).
        \779\DeLovio v. Boit, 7 Fed. Cas. 418, 444 (No. 3776) (C.C.D. 
Mass. 1815) (Justice Story); Philadelphia, W. & B. R.R. v. Philadelphia 
& Havre De Grace Steam Towboat Co., 23 How. (64 U.S.) 209, 215 (1859); 
The Plymouth, 3 Wall. (70 U.S.) 20, 33-34 (1865); Grant Smith-Porter 
Ship Co. v. Rohde, 257 U.S. 469, 476 (1922).
        \780\Executive Jet Aviation v. City of Cleveland, 409 U.S. 249 
(1972) (plane crash in which plane landed wholly fortuitously in 
navigable waters off the airport runway not in admiralty jurisdiction). 
However, so long as there is maritime activity and a general maritime 
commercial nexus, admiralty jurisdiction exists. Foremost Ins. Co. v. 
Richardson, 457 U.S. 668 (1982) (collision of two pleasure boats on 
navigable waters is within admiralty juridiction); Sisson v. Ruby, 497 
U.S. 358 (1990) (fire on pleasure boat docked at marina on navigable 
        \781\Thus, the courts have enforced seamen's claims for 
maintenance and cure for injuries incurred on land. O'Donnell v. Great 
Lakes Dredge & Dock Co., 318 U.S. 36, 41-42 (1943). The Court has 
applied the doctrine of seaworthiness to permit claims by longshoremen 
injured on land because of some condition of the vessel or its cargo. 
Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); Seas Shipping Co. 
v. Sieracki, 328 U.S. 85 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 
96 (1944). But see Victory Carriers v. Law, 404 U.S. 202 (1971). In the 
Jones Act, 41 Stat. 1007, 46 U.S.C. Sec. 688, Congress gave seamen, or 
their personal representatives, the right to seek compensation from 
their employers for personal injuries arising out of their maritime 
employment. Respecting who is a seaman for Jones Act purposes, see 
Southwest Marine, Inc. v. Gizoni, 112 S.Ct. 486 (1991); McDermott 
International, Inc. v. Wilander, 498 U.S. 337 (1991). The rights exist 
even if the injury occurred on land. O'Donnell v. Great Lakes Dredge & 
Dock Co., supra, 43; Swanson v. Mara Brothers, 328 U.S. 1, 4 (1946). In 
the Extension of Admiralty Jurisdiction Act, 62 Stat. 496, 46 U.S.C. 
Sec. 740, Congress provided an avenue of relief for persons injured in 
themselves or their property by action of a vessel on navigable water 
which is consummated on land, as by the collision of a ship with a 
bridge. By the 1972 amendments to the Longshoremen's and Harbor Workers' 
Compensation Act, 86 Stat. 1251, amending 33 U.S.C. Sec. Sec. 901-950, 
Congress broadened the definition of ``navigable waters'' to include in 
certain cases adjoining piers, wharfs, etc., and modified the definition 
of ``employee'' to mean any worker ``engaged in maritime employment'' 
within the prescribed meanings, thus extending the Act shoreward and 
changing the test of eligibility from ``situs'' alone to the ``situs'' 
of the injury and the ``status'' of the injured.

        From the earliest days of the Republic, the federal courts 
sitting in admiralty have been held to have exclusive jurisdiction of 
prize cases.\782\ Also, in contrast to other phases of admiralty 
jurisdiction, prize law as applied by the British courts continued to 
provide the basis of American law so far as practicable,\783\ and so far

[[Page 735]]
as it was not modified by subsequent legislation, treaties, or executive 
proclamations. Finally, admiralty and maritime jurisdiction comprises 
the seizure and forfeiture of vessels engaged in activities in violation 
of the laws of nations or municipal law, such as illicit trade,\784\ 
infraction of revenue laws,\785\ and the like.\786\

        \782\Jennings v. Carson, 4 Cr. (8 U.S.) 2 (1807); Taylor v. 
Carryl, 20 How. (61 U.S.) 583 (1858).
        \783\Thirty Hogsheads of Sugar v. Boyle, 9 Cr. (13 U.S.) 191 
(1815); The Siren, 13 Wall. (80 U.S.) 389, 393 (1871).
        \784\Hudson v. Guestier, 4 Cr. (8 U.S.) 293 (1808).
        \785\The Vengence, 3 Dall. (3 U.S.) 297 (1796); Church v. 
Hubbard, 2 Cr. (6 U.S.) 187 (1804); The Schooner Sally, 2 Cr. (6 U.S.) 
406 (1805).
        \786\The Brig Ann, 9 Cr. (13 U.S.) 289 (1815); The Sarah, 8 
Wheat. (21 U.S.) 391 (1823); Maul v. United States, 274 U.S. 501 (1927).

        Admiralty Proceedings.--Procedure in admiralty jurisdiction 
differs in few respects from procedure in actions at law, but the 
differences that do exist are significant.\787\ Suits in admiralty 
traditionally took the form of a proceeding in rem against the vessel, 
and, with exceptions to be noted, such proceedings in rem are confined 
exclusively to federal admiralty courts, because the grant of exclusive 
jurisdiction to the federal courts by the Judiciary Act of 1789 has been 
interpreted as referring to the traditional admiralty action, the in rem 
action, which was unknown to the common law.\788\ The savings clause in 
that Act under which a state court may entertain actions by suitors 
seeking a common-law remedy preserves to the state tribunals the right 
to hear actions at law where a common-law remedy or a new remedy 
analogous to a common-law remedy exists.\789\ Concurrent jurisdiction 
thus exists for the adjudication of in personam maritime causes of 
action against the owner of the vessel, and a plaintiff may ordinarily 
choose whether to bring his action in a state court or a federal court.

        \787\G. Gilmore and C. Black, op. cit., n. 744, 30-33. There are 
no longer separate rules of procedure governing admiralty, unification 
of civil admiralty procedures being achieved in 1966. 7A J. Moore's 
Federal Practice (New York: 1971), Sec. .01 et seq.
        \788\The Moses Taylor, 4 Wall. (71 U.S.) 411 (1866); The Hine v. 
Trevor, 4 Wall. (71 U.S.) 555 (1867). But see Taylor v. Carryl, 20 How. 
(61 U.S.) 583 (1858). In Madruga v. Superior Court, 346 U.S. 556 (1954), 
the jurisdiction of a state court over a partition suit at the instance 
of the majority shipowners was upheld on the ground that the cause of 
action affected only the interest of the defendant minority shipowners 
and therefore was in personam. Justice Frankfurter's dissent argued: 
``If this is not an action against the thing, in the sense which that 
has meaning in the law, then the concepts of a res and an in rem 
proceeding have an esoteric meaning that I do not understand.'' Id., 
        \789\After conferring ``exclusive'' jurisdiction in admiralty 
and maritime cases on the federal courts, Sec. 9 of the Judiciary Act of 
1789, 1 Stat. 77, added ``saving to suitors, in all cases the right of a 
common law remedy, where the common law is competent to give it; . . .'' 
Fixing the concurrent federal-state line has frequently been a source of 
conflict within the court. Southern Pacific Co. v. Jensen, 244 U.S. 205 

        Forfeiture to the crown for violation of the laws of the 
sovereign was in English law an exception to the rule that admiralty has 
exclusive jurisdiction over in rem maritime actions and was

[[Page 736]]
thus considered a common-law remedy. Although the Supreme Court 
sometimes has used language that would confine all proceedings in rem to 
admiralty courts,\790\ such actions in state courts have been sustained 
in cases of forfeiture arising out of violations of state law.\791\

        \790\The Moses Taylor, 4 Wall. (71 U.S.) 411, 431 (1867).
        \791\C. J. Henry Co. v. Moore, 318 U.S. 133 (1943).

        Perhaps the most significant admiralty court difference in 
procedure from civil courts is the absence of a jury trial in admiralty 
actions, with the admiralty judge trying issues of fact as well as of 
law.\792\ Indeed, the absence of a jury in admiralty proceedings appears 
to have been one of the principal reasons why the English government 
vested a broad admiralty jurisdiction in the colonial vice-admiralty 
courts, since they provided a forum where the English authorities could 
enforce the Navigation Laws without ``the obstinate resistance of 
American juries.''\793\

        \792\The Vengeance, 3 Dall. (3 U.S.) 297 (1796); The Schooner 
Sally, 2 Cr. (6 U.S.) 406 (1805); The Schooner Betsy, 4 Cr. (8 U.S.) 443 
(1808); The Whelan, 7 Cr. (11 U.S.) 112 (1812); The Samuel, 1 Wheat. (14 
U.S.) 9 (1816). If diversity of citizenship and the requisite 
jurisdictional amounts are present, a suitor may sue on the ``law side'' 
of the federal court and obtain a jury. Romero v. International Terminal 
Operating Co. 358 U.S. 354, 362-363 (1959). Jones Act claims, 41 Stat. 
1007 (1920), 46 U.S.C. Sec. 688, may be brought on the ``law side'' with 
a jury, Panama R.R. Co. v. Johnson, 264 U.S. 375 (1924), and other 
admiralty claims joined with a Jones Act claim may be submitted to a 
jury. Romero v. International Terminal Operating Co., supra; Fitzgerald 
v. United States Lines Co., 374 U.S. 16 (1963). There is no 
constitutional barrier to congressional provision of jury trials in 
admiralty. Genessee Chief v. Fitzhugh, 12 How. (53 U.S.) 443 (1851); 
Fitzgerald v. United States Lines Co., supra, 20.
        \793\C. J. Henry Co. v. Moore, 318 U.S. 133, 141 (1943).

        Territorial Extent of Admiralty and Maritime Jurisdiction.--
Although he was a vigorous exponent of the expansion of admiralty 
jurisdiction, Justice Story for the Court in The Steamboat Thomas 
Jefferson\794\ adopted a restrictive English rule confining admiralty 
jurisdiction to the high seas and upon rivers as far as the ebb and flow 
of the tide extended.\795\ The demands of commerce on western waters led 
Congress to enact a statute extending admiralty jurisdiction over the 
Great Lakes and connecting waters,\796\ and in The Genessee Chief v. 
Fitzhugh\797\ Chief Justice Taney overruled The Thomas Jefferson and 
dropped the tidal ebb and flow requirement. This ruling laid the basis 
for subsequent judicial extension of jurisdiction over all waters, salt 
or fresh, tidal

[[Page 737]]
or not, which are navigable in fact.\798\ Some of the older cases 
contain language limiting jurisdiction to navigable waters which form 
some link in an interstate or international waterway or some link in 
commerce,\799\ but these date from the time when it was thought the 
commerce power furnished the support for congressional legislation in 
this field.

        \794\10 Wheat. (23 U.S.) 428 (1825). On the political background 
of this decision, see 1 C. Warren, op. cit., n.18, 633-635.
        \795\The tidal ebb and flow limitation was strained in some of 
its applications. Peyroux v. Howard, 7, Pet. (32 U.S.) 324 (1833); 
Waring v. Clarke, 5 How. (46 U.S.) 441 (1847).
        \796\5 Stat. 726 (1845).
        \797\12 How. (53 U.S.) 443 (1851).
        \798\Some of the early cases include The Magnolia, 20 How. (61 
U.S.) 296 (1857); The Eagle, 8 Wall. (75 U.S.) 15 (1868); The Daniel 
Ball, 10 Wall. (77 U.S.) 557 (1871). The fact that the body of water is 
artificial presents no barrier to admiralty jurisdiction. Ex parte 
Boyer, 109 U.S. 629 (1884); The Robert W. Parsons, 191 U.S. 17 (1903). 
In United States v. Apalachian Power Co., 311 U.S. 377 (1940), it was 
made clear that maritime jurisdiction extends to include waterways which 
by reasonable improvement can be made navigable. ``It has long been 
settled that the admiralty and maritime jurisdiction of the United 
States includes all navigable waters within the country.'' Southern S.S. 
Co. v. NLRB, 316 U.S. 31, 41 (1942).
        \799\E.g., The Daniel Ball, 10 Wall. (77 U.S.) 557, 563 (1870); 
The Montello, 20 Wall. (87 U.S.) 430, 441-442 (1874).

        Admiralty and Federalism.--Extension of admiralty and maritime 
jurisdiction to navigable waters within a State does not, however, of 
its own force include general or political powers of government. Thus, 
in the absence of legislation by Congress, the States through their 
courts may punish offenses upon their navigable waters and upon the sea 
within one marine league of the shore.\800\

        \800\United States v. Bevans, 3 Wheat. (16 U.S.) 336 (1818); 
Manchester v. Massachusetts, 139 U.S. 240 (1891).

        Determination of the boundaries of admiralty jurisdiction is a 
judicial function, and ``no State law can enlarge it, nor can an act of 
Congress or a rule of court make it broader than the judicial power may 
determine to be its true limits.''\801\ But, as with other jurisdictions 
of the federal courts, admiralty jurisdiction can only be exercised 
under acts of Congress vesting it in federal courts.\802\

        \801\The Steamer St. Lawrence, 1 Bl. (66 U.S.) 522, 527 (1862).
        \802\Janney v. Columbia Ins. Co., 10 Wheat. (23 U.S.) 411, 418 
(1825); The Lottawanna, 21 Wall. (88 U.S.) 558, 576 (1875).

        The boundaries of federal and state competence, both legislative 
and judicial, in this area remain imprecise, and federal judicial 
determinations have notably failed to supply definiteness. During the 
last century, the Supreme Court generally permitted two overlapping 
systems of law to coexist in an uneasy relationship. The federal courts 
in admiralty applied the general maritime law,\803\ supplemented in some 
instances by state law which created and defined certain causes of 
action.\804\ Because the Judiciary Act of 1789

[[Page 738]]
saved to suitors common-law remedies, persons suing in state courts or 
in federal courts in diversity of citizenship actions could look to 
common-law and statutory doctrines for relief in maritime-related cases 
in which the actions were noticeable.\805\ In Southern Pacific Co. v. 
Jensen,\806\ a sharply divided Court held that New York could not 
constitutionally apply its workmen's compensation system to employees 
injured or killed on navigable waters. For the Court, Justice McReynolds 
reasoned ``that the general maritime law, as accepted by the federal 
courts, constituted part of our national law, applicable to matters 
within the admiralty and maritime jurisdiction.''\807\ Recognizing that 
``it would be difficult, if not impossible, to define with exactness 
just how far the general maritime law may be changed, modified or 
affected by state legislation,'' still it was certain that ``no such 
legislation is valid if it works material prejudice to the 
characteristic features of the general maritime law, or interferes with 
the proper harmony or uniformity of that law in its international and 
interstate relations.''\808\ The ``savings to suitors'' clause was 
unavailing because the workmen's compensation statute created a remedy 
``of a character wholly unknown to the common law, incapable of 
enforcement by the ordinary process of any court, and is not saved to 
suitors from the grant of exclusive jurisdiction.''\809\

        \803\E.g., New Jersey Steam Navigation Co. v. Merchants' Bank of 
Boston, 6 How. (47 U.S.) 344 (1848); The Steamboat New York v. Rea, 18 
How. (59 U.S.) 223 (1856); The China, 7 Wall. (74 U.S.) 53 (1868); Ex 
parte McNiel, 13 Wall. (80 U.S.) 236 (1872); La Bourgogne, 210 U.S. 95 
        \804\The General Smith, 4 Wheat. (17 U.S.) 438 (1819); The 
Lottawanna, 21 Wall. (88 U.S.) 558 (1875) (enforcing state laws giving 
suppliers and repairmen liens on ships supplied and repaired). Another 
example concerns state created wrongful death actions. The Hamilton, 207 
U.S. 398 (1907).
        \805\E.g., Hazard's Administrator v. New England Marine Ins. 
Co., 8 Pet. (33 U.S.) 557 (1834); The Belfast, 7 Wall. (74 U.S.) 624 
(1869); American Steamboat Co. v. Chase, 16 Wall. (83 U.S.) 522 (1872); 
Quebec Steamship Co. v. Merchant, 133 U.S. 375 (1890); Belden v. Chase, 
150 U.S. 674 (1893); Homer Ramsdell Transp. Co. v. La Compagnie Gen. 
Transatlantique, 182 U.S. 406 (1901).
        \806\244 U.S. 205 (1917). The worker here had been killed, but 
the same result was reached in a case of nonfatal injury. Clyde S.S. 
Co., v. Walker, 244 U.S. 255 (1917). In Chelentis v. Luckenbach S.S. 
Co., 247 U.S. 372 (1918), the Jensen holding was applied to preclude 
recovery in a negligence action against the injured party's employer 
under state law. Under The Osceola, 189 U.S. 158 (1903), the employee 
had a maritime right to wages, maintenance, and cure.
        \807\Southern Pacific Co. v. Jensen, 244 U.S. 205, 215 (1917).
        \808\Id., 216.
        \809\Id., 218. There were four dissenters, Justices Holmes, 
Brandeis, Clarke, and Pitney. The Jensen dissent featured such Holmesian 
epigrams as: ``Judges do and must legislate, but they can do so only 
interstitially: they are confined from molar to molecular motions,'' 
id., 221, and the famous statement supporting the assertion that 
supplementation of maritime law had to come from state law inasmuch as 
``the common law is not a brooding omnipresence in the sky, but the 
articulate voice of some sovereign or quasi-sovereign that can be 
identified. It always is the law of some state.'' Id., 222.

        Congress required three opportunities to legislate to meet the 
problem created by the decision, the lack of remedy for maritime workers 
to recover for injuries resulting from the negligence of their 
employers. First, Congress enacted a statute saving to claim

[[Page 739]]
ants their rights and remedies under state workmen's compensation 
laws.\810\ The Court invalidated it as an unconstitutional delegation of 
legislative power to the States. ``The Constitution itself adopted and 
established, as part of the laws of the United States, approved rules of 
the general maritime law and empowered Congress to legislate in respect 
of them and other matters within the admiralty and maritime 
jurisdiction. Moreover, it took from the States all power, by 
legislation or judicial decision, to contravene the essential purposes 
of, or to work material injury to, characteristic features of such law 
or to interfere with its proper harmony and uniformity in its 
international and interstate relations.''\811\ Second, Congress 
reenacted the law but excluded masters and crew members of vessels from 
those who might claim compensation for maritime injuries.\812\

        \810\40 Stat. 395 (1917).
        \811\Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). 
The decision was again five-to-four with the same dissenters.
        \812\42 Stat. 634 (1922).

        The Court found this effort unconstitutional as well, since 
``the manifest purpose [of the statute] was to permit any state to alter 
the maritime law, and thereby introduce conflicting requirements.''\813\ 
Finally, Congress passed the Longshoremen's and Harbor Workers' 
Compensation Act, which provided accident compensation for injuries, 
including those resulting in death, sustained on navigable waters by 
employees, other than members of the crew, whenever ``recovery . . . may 
not validly be provided by State law.''\814\

        \813\Washington v. Dawson & Co., 264 U.S. 219, 228 (1924). 
Holmes and Brandeis remained of the four dissenters and again dissented.
        \814\44 Stat. 1424 (1927), as amended, 33 U.S.C. Sec. Sec. 901-

        With certain exceptions,\815\ the federal-state conflict since 
Jensen has taken place with regard to three areas: (1) the 
interpretation of federal and state bases of relief for injuries and 
death as affected by the Longshoremen's and Harbor Workers' Compensation 
Act; (2) the interpretation of federal and state bases of relief for 
personal injuries by maritime workers as affected by the Jones Act; and 
(3) the application of state law to permit recovery in mari

[[Page 740]]
time wrongful death cases in which until recently there was no federal 
maritime right to recover.\816\

        \815\E.g. Maryland Casualty Co. v. Cushing, 347 U.S. 409 (1954) 
(state direct action statute applies against insurers implicated in a 
marine accident); Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 
310 (1955) (state statute determines effect of breach of warranty in 
marine insurance contract); Southwestern Sugar & Molasses Co. v. River 
Terminals Corp., 360 U.S. 411 (1959); Bisso v. Inland Waterways Corp., 
349 U.S. 85 (1955) (federal rather than state law determines effect of 
exculpatory provisions in towage contracts); Kossick v. United Fruit 
Co., 365 U.S. 731 (1961) (state statute of frauds inapplicable to oral 
contract for medical care between seaman and employer).
        \816\Jensen, though much criticized, is still the touchstone of 
the decisional process in this area with its emphasis on the general 
maritime law. E.g., Pope & Talbot v. Hawn, 346 U.S. 406 (1953); Kermarec 
v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959). In Askew v. 
American Waterways Operators, 411 U.S. 325, 337-344 (1973), the Court, 
in holding that the States may constitutionally exercise their police 
powers respecting maritime activities concurrently with the Federal 
Government, such as by providing for liability for oil spill damages, 
noted that Jensen and its progeny, while still possessing vitality, have 
been confined to their facts; thus, it is only with regard ``to suits 
relating to the relationship of vessels, plying the high seas and our 
navigable waters, and to their crews'' that state law is proscribed. 
Id., 344. See also Sun Ship v. Pennsylvania, 447 U.S. 715 (1980).

        (1) The principal difficulty here was that after Jensen the 
Supreme Court did not maintain the line between permissible and 
impermissible state-authorized recovery at the water's edge but created 
a ``maritime but local'' exception, by which some injuries incurred in 
or on navigable waters could be compensated under state workmen's 
compensation laws or state negligence laws.\817\ ``The application of 
the State Workmen's Compensation Acts has been sustained where the work 
of the employee has been deemed to have no direct relation to navigation 
or commerce and the operation of the local law `would work no material 
prejudice to the essential features of the general maritime law.'''\818\ 
Because Congress provided in the Longshoremen's and Harbor Workers' 
Compensation Act for recovery under the Act ``if recovery . . . may not 
validly be provided by State law,''\819\ it was held that the ``maritime 
but local'' exception had been statutorily perpetuated,\820\ thus 
creating the danger for injured workers or their survivors that they 
might choose to seek relief by the wrong avenue to their prejudice. This 
danger was susequently removed by the Court when it recognized that 
there was a ``twilight zone,'' a ``shadowy area,'' in which recovery 
under either the federal law or a state law could be justified and 
forthwith held that in such a ``twilight zone'' the injured party should 
be enabled to recover under either.\821\ Then, in Calbeck v. Travel

[[Page 741]]
ers Ins. Co.,\822\ the Court virtually read out of the Act its 
inapplicability when compensation would be afforded by state law and 
held that Congress' intent in enacting the statute was to extend 
coverage to all workers who sustain injuries while on navigable waters 
of the United States whether or not a particular injury was also within 
the constitutional reach of a state workmen's compensation law or other 
law. By the 1972 amendments to the LHWCA, Congress extended the law 
shoreward by refining the tests of ``employee'' and ``navigable 
waters,'' so as to reach piers, wharfs, and the like in certain 

        \817\Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Grant-
Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922); State Industrial 
Comm. v. Nordenholt Corp., 259 U.S. 263 (1922); Miller's Indemnity 
Underwriters v. Braud, 270 U.S. 59 (1926). The exception continued to be 
applied following enactment of the Longshoremen's and Harbor Workers' 
Compensation Act. See cases cited in Davis v. Dept. of Labor and 
Industries, 317 U.S. 249, 253-254 (1942).
        \818\Crowell v. Benson, 285 U.S. 22, 39 n. 3 (1932). The 
internal quotation is from Western Fuel Co. v. Garcia, 257 U.S. 233, 242 
        \819\Sec. 3(a), 44 Stat. 1424 (1927), 33 U.S.C. Sec. 903(a).
        \820\Crowell v. Benson, 284 U.S. 22, 39, (1932); Davis v. Dept. 
of Labor and Industries, 317 U.S. 249, 252-253 (1942).
        \821\Davis v. Dept of Labor and Industries, 317 U.S. 249 (1942). 
The quoted phrases appear at id, 253, 256. See also Hahn v. Ross Island 
Sand & Gravel Co., 358 U.S. 272 (1959).
        \822\370 U.S. 114 (1962). In the 1972 amendments, Sec. 2, 86 
Stat. 1251, amending 33 U.S.C. Sec. 903(a), Congress ratified Calbeck by 
striking out ``if recovery . . . may not validly be provided by State 
        \823\86 Stat. 1251, Sec. 2, amending 33 U.S.C. Sec. 902. The 
Court had narrowly turned back an effort to achieve this result through 
construction in Nacierema Operating Co. v. Johnson, 396 U.S. 212 (1969). 
See also Victory Carriers v. Law, 404 U.S. 202 (1971). On the 
interpretation of the amendments, see Northeast Marine Terminal Co. v. 
Caputo, 432 U.S. 249 (1977); Director, Office of Workers Compensation 
Programs v. Perini, 459 U.S. 297 (1983).

        (2) The passage of the Jones Act\824\ gave seamen a statutory 
right of recovery for negligently inflicted injuries on which they could 
sue in state or federal courts. Because injured parties could obtain a 
jury trial in Jones Act suits, there was little attempted recourse under 
the savings clause\825\ to state law claims and thus no need to explore 
the line between applicable and inapplicable state law. But in the 1940s 
personal injury actions based on unseaworthiness\826\ were given new 
life by Court decisions for seamen,\827\ and the right was soon extended 
to longshoremen who were injured while on board ship or while working on 
the dock if the injury could be attributed either to the ship's gear or 
its cargo.\828\ While these actions could have been brought in state 
court, federal law supplanted state law even with regard to injuries

[[Page 742]]
sustained in state territorial waters.\829\ The 1972 LHWCA amendments, 
however, eliminated unseaworthiness recoveries by persons covered by the 
Act and substituted a recovery for injuries caused by negligence under 
the LHWCA itself.\830\

        \824\41 Stat. 1007 (1920), 46 U.S.C. Sec. 688. For the prior-
Jones Act law, see The Osceola, 189 U.S. 158 (1903)
        \825\Supra, pp.728-729; p.735, n.789.
        \826\Unseaworthiness ``is essentially a species of liability 
without fault, analogous to other well known instances in our law. 
Derived from and shaped to meet the hazards which performing the service 
imposes, the liability is neither limited by conceptions of negligence 
nor contractual in character. . . . [T]he owner's duty to furnish a 
seaworthy ship is absolute and completely independent of his duty under 
the Jones Act to exercise reasonable care.'' Mitchell v. Trawler Racer, 
362 U.S. 539, 549 (1960).
        \827\Mahnich v. Southern S.S. Co., 321 U.S. 96 (1944). See also 
Mitchell v. Trawler Racer, 362 U.S. 539 (1960); Michalic v. Cleveland 
Tankers, 364 U.S. 325 (1960); Waldron v. Moore-McCormack Lines, 386 U.S. 
724 (1967).
        \828\Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946); Pope & 
Talbot v. Hawn, 346 U.S. 406 (1953); Alaska S.S. Co. v. Patterson, 347 
U.S. 396 (1954); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963); 
But see Usner v. Luckenback Overseas Corp., 400 U.S. 494 (1971); Victory 
Carriers v. Law, 404 U.S. 202 (1971).
        \829\Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942); 
McAllister v. Magnolia Petroleum Co., 357 U.S. 221 (1958); Kermarec v. 
Compagnie Generale Transatlantique, 338 U.S. 625 (1959).
        \830\86 Stat. 1263, Sec. 18, amending 33 U.S.C. Sec. 905. On the 
negligence standards under the amendment, see Scindia Steam Navigation 
Co., v. De Los Santos, 451 U.S. 156 (1981).

        (3) In The Harrisburg,\831\ the Court held that maritime law did 
not afford an action for wrongful death, a position to which the Court 
adhered until quite recently.\832\ The Jones Act,\833\ the Death on the 
High Seas Act,\834\ and the Longshoremen's and Harbor Workers' 
Compensation Act\835\ created causes of action for wrongful death, but 
for cases not falling within one of these laws the federal courts looked 
to state wrongful death and survival statutes.\836\ Thus, in The Tungus 
v. Skovgaard,\837\ the Court held that a state wrongful death statute 
encompassed claims both for negligence and unseaworthiness in the 
instance of a land-based worker killed when on board ship in navigable 
water; the Court divided five-to-four, however, in holding that the 
standards of the duties to furnish a seaworthy vessel and to use due 
care were created by the state law as well and not furnished by general 
maritime con

[[Page 743]]
cepts.\838\ And in Hess v. United States,\839\ embracing a suit under 
the Federal Tort Claims Act for recovery for a death by drowning in a 
navigable Oregon river of an employee of a contractor engaged in 
repairing the federally-owned Bonneville Dam, a divided Court held that 
liability was to be measured by the standard of care expressed in state 
law, notwithstanding that the standard was higher than that required by 
maritime law. One area existed, however, in which beneficiaries of a 
deceased seaman were denied recovery.

        \831\119 U.S. 199 (1886). Subsequent cases are collected in 
Moragne v. States Marine Lines, 398 U.S. 375 (1970).
        \832\Moragne v. States Marine Lines, 398 U.S. 375 (1970).
        \833\41 Stat. 1007 (1920). 46 U.S.C. Sec. 688. Recovery could be 
had if death resulted from injuries because of negligence but not from 
        \834\41 Stat. 537 (1920), 46 U.S.C. Sec. 761 et seq. The Act 
applies to deaths caused by negligence occurring on the high seas beyond 
a marine league from the shore of any State. In Rodrique v. Aetna 
Casualty & Surety Co., 395 U.S. 352 (1969), a unanimous Court held that 
this Act did not apply in cases of deaths on the artificial islands 
created on the continental shelf for oil drilling purposes but that the 
Outer Continental Shelf Lands Act, 67 Stat. 462 (1953), 43 U.S.C. 
Sec. 1331 et seq., incorporated the laws of the adjacent State, so that 
Louisiana law governed. See also Chevron Oil Co. v. Huson, 404 U.S. 97 
(1971); Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981). 
However, in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986), 
the Court held that the Act is the exclusive wrongful death remedy in 
the case of OCS platform workers killed in a helicopter crash 35 miles 
off shore en route to shore from a platform.
        \835\44 Stat. 1424 (1927), as amended, 33 U.S.C. Sec. Sec. 901-
        \836\Western Fuel Co. v. Garcia, 257 U.S. 233 (1921); Just v. 
Chambers, 312 U.S. 383 (1941); Levinson v. Deupree. 345 U.S. 648 (1953).
        \837\358 U.S. 588 (1959).
        \838\Justice Brennan, joined by Chief Justice Warren and 
Justices Black and Douglas, argued that the extent of the duties owed 
the decedent while on board ship should be governed by federal maritime 
law, though the cause of action originated in a state statute, just as 
would have been the result had decedent survived his injuries. See also 
United N.Y. & N.J. Sandy Hooks Pilot Assn. v. Halecki, 358 U.S. 613 
        \839\361 U.S. 314 (1960). The four Tungus dissenters joined two 
of the Tungus majority solely ``under compulsion'' of the Tungus ruling; 
the other three majority Justices dissented on the ground that 
application of the state statute unacceptably disrupted the uniformity 
of maritime law.

        The Jones Act provided a remedy for wrongful death resulting 
from negligence but not for one caused by unseaworthiness alone; in 
Gillespie v. United States Steel Corp.,\840\ the Court held that the 
survivors of a seaman drowned while working on a ship docked in an Ohio 
port could not recover under the state wrongful death statute even 
though the act recognized unseaworthiness as a basis for recovery, the 
Jones Act having superseded state laws.

        \840\379 U.S. 148 (1964). The decision was based on dictum in 
Lindgren v. United States, 281 U.S. 38 (1930), to the effect that the 
Jones Act remedy was exclusive.

        Thus did matters stand until 1970 when the Court, in a unanimous 
opinion in Moragne v. States Marine Lines\841\ overruled its earlier 
cases and held that a right of recovery for wrongful death is sanctioned 
by general maritime law and that no statute is needed to bring the right 
into being. The Court was careful to note that the cause of action 
created in Moragne would not, like the state wrongful death statutes in 
Gillespie, be held precluded by the Jones Act, so that the survivor of a 
seaman killed in navigable waters within a State would have a cause of 
action for negligence under the Jones Act or for unseaworthiness under 
the general maritime law.\842\

        \841\398 U.S. 375 (1970).
        \842\Id., 396 n. 12. For development of the law under Moragne, 
see Sea-Land Services v. Gaudet, 414 U.S. 573 (1974); Miles v. Apex 
Marine Corp., 498 U.S. 19 (1990).
      Cases to Which the United States Is a Party

        Right of the United States to Sue.--In the first edition of his 
Treatise, Justice Story noted that while ``an express power is no where 
given in the constitution,'' the right of the United States to

[[Page 744]]
sue in its own courts ``is clearly implied in that part respecting the 
judicial power. . . . Indeed, all the usual incidents appertaining to a 
personal sovereign, in relation to contracts, and suing, and enforcing 
rights, so far as they are within the scope of the powers of the 
government, belong to the United States, as they do to other 
sovereigns.''\843\ As early as 1818, the Supreme Court ruled that the 
United States could sue in its own name in all cases of contract without 
congressional authorization of such suits.\844\ Later, this rule was 
extended to other types of actions. In the absence of statutory 
provisions to the contrary, such suits are initiated by the Attorney 
General in the name of the United States.\845\

        \843\3 J. Story, Commentaries on the Constitution of the United 
States (Boston: 1833), 1274 (emphasis in original).
        \844\Dugan v. United States, 3 Wheat. (16 U.S.) 172 (1818).
        \845\United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); 
United States v. Beebe, 127 U.S. 338 (1888); United States v. Bell 
Telephone Co., 128 U.S. 315 (1888). Whether without statutory 
authorization the United States may sue to protect the constitutional 
rights of its citizens has occasioned conflict. Compare United States v. 
Brand Jewelers, 318 F. Supp. 1293 (S.D.N.Y. 1970), and United States v. 
Brittain, 319 F. Supp. 1658 (S.D.Ala. 1970), with United States v. 
Mattson, 600 F.2d 1295 (9th Cir. 1979), and United States v. Solomon, 
563 F.2d 1121 (4th Cir. 1977). The result in Mattson and Solomon was 
altered by specific authorization in the Civil Rights of 
Institutionalized Persons Act, P.L. 96-247, 94 Stat. 349 (1980), 42 
U.S.C. Sec. 1997 et seq. And see United States v. City of Philadelphia, 
644 F.2d 187 (3d Cir. 1980) (no standing to sue to correct allegedly 
unconstitutional police practices).

        By the Judiciary Act of 1789, and subsequent amendments thereof, 
Congress has vested in the federal district courts jurisdiction to hear 
all suits of a civil nature at law or in equity brought by the United 
States as party plaintiff.\846\ As in other judicial proceedings, the 
United States, like any party plaintiff, must have an interest in the 
subject matter and a legal right to the remedy sought.\847\ Under the 
long settled principle that the courts have the power to abate public 
nuisances at the suit of the Government, the provision in Sec. 208(2) of 
the Labor Management Relations Act of 1949, authorizing federal courts 
to enjoin strikes which imperil national health or safety was upheld for 
the reason that the statute entrusts the courts with the determination 
of a ``case or controversy'' on which the judicial power can operate and 
does not impose any legislative, executive, or non-judicial function. 
Moreover, the fact that the rights sought to be protected were those of 
the public in unimpeded production in industries vital to public health, 
as distinguished from the private rights of labor and management,

[[Page 745]]
was held not to alter the adversary (``case or controversy'') nature of 
the litigation instituted by the United States as the guardian of the 
aforementioned rights.\848\ Also, by reason of the highest public 
interest in the fulfillment of all constitutional guarantees, 
``including those that bear . . . directly on private rights, . . . it 
[is] perfectly competent for Congress to authorize the United States to 
be the guardian of that public interest in a suit for injunctive 

        \846\28 U.S.C. Sec. 1345. By virtue of the fact that the 
original jurisdiction of the Supreme Court extends only to those cases 
enumerated in the Constitution, jurisdiction over suits brought by the 
United States against persons or corporation is vested in the lower 
federal courts. But suits by the United States against a State may be 
brought in the Supreme Court's original jurisdiction, 28 U.S.C. 
Sec. 1251(b)(2), but may as well be brought in the district court. Case 
v. Bowles, 327 U.S. 92, 97 (1946).
        \847\United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).
        \848\United Steelworkers v. United States, 361 U.S. 39, 43-44 
(1960), citing In re Debs, 158 U.S. 564 (1895).
        \849\United States v. Raines, 362 U.S. 17, 27 (1960), upholding 
jurisdiction of the federal court as to an action to enjoin state 
officials from discriminating against African-American citizens seeking 
to vote in state elections. See also Oregon v. Mitchell, 400 U.S. 112 
(1970), in which two of the four cases considered were actions by the 
United States to enjoin state compliance with the Voting Rights Act 
Amendments of 1970.

        Suits Against States.--Controversies to which the United States 
is a party include suits brought against States as party defendants. The 
first such suit occurred in United States v. North Carolina,\850\ which 
was an action by the United States to recover upon bonds issued by North 
Carolina. Although no question of jurisdiction was raised, in deciding 
the case on its merits in favor of the State, the Court tacitly assumed 
that it had jurisdiction of such cases. The issue of jurisdiction was 
directly raised by Texas a few years later in a bill in equity brought 
by the United States to determine the boundary between Texas and the 
Territory of Oklahoma, and the Court sustained its jurisdiction over 
strong arguments by Texas to the effect that it could not be sued by the 
United States without its consent and that the Supreme Court's original 
jurisdiction did not extend to cases to which the United States is a 
party.\851\ Stressing the inclusion within the judicial power of cases 
to which the United States and a State are parties, the elder Justice 
Harlan pointed out that the Constitution made no exception of suits 
brought by the United States. In effect, therefore, consent to be sued 
by the United States ``was given by Texas when admitted to the Union 
upon an equal footing in all respects with the other States.''\852\

        \850\136 U.S. 211 (1890).
        \851\United States v. Texas, 143 U.S. 621 (1892).
        \852\Id., 642-646. This suit, it may be noted, was specifically 
authorized by the Act of Congress of May 2, 1890, providing for a 
temporary government for the Oklahoma territory to determine the 
ownership of Greer County. 26 Stat. 81, 92, Sec. 25. See also United 
States v. Louisiana, 339 U.S. 699, 701-702 (1950).

        Suits brought by the United States have, however, been 
infrequent. All of them have arisen since 1889, and they have become 
somewhat more common since 1926. That year the Supreme Court decided a 
dispute between the United States and Minnesota over

[[Page 746]]
land patents issued to the State by the United States in breach of its 
trust obligations to the Indian.\853\ In United States v. West 
Virginia,\854\ the Court refused to take jurisdiction of a suit in 
equity brought by the United States to determine the navigability of the 
New and Kanawha Rivers on the ground that the jurisdiction in such suits 
is limited to cases and controversies and does not extend to the 
adjudication of mere differences of opinion between the officials of the 
two governments. A few years earlier, however, it had taken jurisdiction 
of a suit by the United States against Utah to quiet title to land 
forming the beds of certain sections of the Colorado River and its 
tributaries with the States.\855\ Similarly, it took jurisdiction of a 
suit brought by the United States against California to determine the 
ownership of and paramount rights over the submerged land and the oil 
and gas thereunder off the coast of California between the low-water 
mark and the three-mile limit.\856\ Like suits were decided against 
Louisiana and Texas in 1950.\857\

        \853\United States v. Minnesota, 270 U.S. 181 (1926). For an 
earlier suit against a State by the United States, see United States v. 
Michigan, 190 U.S. 379 (1903).
        \854\295 U.S. 463 (1935).
        \855\United States v. Utah, 283 U.S. 64 (1931).
        \856\United States v. California, 332 U.S. 19 (1947).
        \857\United States v. Louisiana, 339 U.S. 699 (1950); United 
States v. Texas, 339 U.S. 707 (1950). See also United States v. Maine, 
420 U.S. 515 (1975)

        Immunity of the United States From Suit.--Pursuant to the 
general rule that a sovereign cannot be sued in its own courts, it 
follows that the judicial power does not extend to suits against the 
United States unless Congress by general or special enactment consents 
to suits against the Government. This rule first emanated in embryo form 
in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where 
he indicated that a suit would not lie against the United States because 
``there is no power which the courts can call to their aid.''\858\ In 
Cohens v. Virginia,\859\ also by way of dictum, Chief Justice Marshal 
asserted, ``the universally received opinion is that no suit can be 
commenced or prosecuted against the United States.'' The issue was more 
directly in question in United States v. Clarke,\860\ where Chief 
Justice Marshall stated that as the United States is ``not suable of 
common right, the party who institutes such suit must bring his case 
within the authority of some act of Congress, or the court cannot 
exercise jurisdiction over it.'' He thereupon ruled that the act of May 
26, 1830, for the final settlement of land claims in Florida condoned 
the suit. The doctrine of the exemption of the United States from suit 
was repeated in various subsequent cases, without discussion or examina

[[Page 747]]
tion.\861\ Indeed, it was not until United States v. Lee\862\ that the 
Court examined the rule and the reasons for it, and limited its 
application accordingly.

        \858\2 Dall. (2 U.S.) 419, 478 (1793).
        \859\6 Wheat. (19 U.S.) 264, 412 (1821).
        \860\8 Pet. (33 U.S.) 436, 444 (1834).
        \861\United States v. McLemore, 4 How. (45 U.S.) 286 (1846); 
Hill v. United States, 9 How. (50 U.S.) 386, 389 (1850); De Groot v. 
United States, 5 Wall. (72 U.S.) 419, 431 (1867); United States v. 
Eckford, 6 Wall. (73 U.S.) 484, 488 (1868); The Siren, 7 Wall. (74 U.S.) 
152, 154 (1869); Nichols v. United States, 7 Wall. (74 U.S.) 122, 126 
(1869); The Davis, 10 Wall. (77 U.S.) 15, 20 (1870); Carr v. United 
States, 98 U.S. 433, 437-439 (1879). ``It is also clear that the Federal 
Government, in the absence of its consent, is not liable in tort for the 
negligence of its agents or employee. Gibbons v. United States, 8 Wall. 
(75 U.S.) 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 
(1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 
(1922). The reason for such immunity as stated by Mr. Justice Holmes in 
Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because `there 
can be no legal right as against the authority that makes the law on 
which the right depends.' See also the Western Maid, 257 U.S. 419, 433 
(1922). As the Housing Act does not purport to authorize suits against 
the United States as such, the question is whether the Authority--which 
is clearly an agency of the United States--partakes of this sovereign 
immunity. The answer must be sought in the intention of the Congress. 
Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549, 570 (1922). 
Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a 
consideration of the extent to which other Government-owned corporations 
have been held liable for their wrongful acts.'' 39 Ops. Atty. Gen. 559, 
562 (1938).
        \862\106 U.S. 196 (1882).

        Since suits against the United States can be maintained only by 
permission, it follows that they can be brought only in the manner 
prescribed by Congress and subject to the restrictions imposed.\863\ 
Only Congress can take the necessary steps to waive the immunity of the 
United States from liability for claims, and hence officers of the 
United States are powerless by their actions either to waive such 
immunity or to confer jurisdiction on a federal court.\864\ Even when 
authorized, suits can be brought only in designated courts.\865\ These 
rules apply equally to suits by States

[[Page 748]]
against the United States.\866\ Although an officer acting as a public 
instrumentality is liable for his own torts, Congress may grant or 
withhold immunity from suit on behalf of government corporations.\867\

        \863\Lonergan v. United States, 303 U.S. 33 (1938). Waivers of 
immunity must be express. Library of Congress v. Shaw, 461 U.S. 273 
(1983) (Civil Rights Act provision that ``the United States shall be 
liable for costs the same as a private person'' insufficient to waive 
immunity from awards of interest). The result in Shaw was overturned by 
a specific waiver. Civil Rights Act of 991, P.L. 102-166, 106 Stat. 
1079, Sec. 113, amending 42 U.S.C. Sec. 2000e-16. Immunity was waived, 
with limitations, for contracts and takings claims in the Tucker Act, 28 
U.S.C. Sec. 1346(a)(2). Immunity of the United States for the negligence 
of its employees was waived, again with limitations, in the Federal Tort 
Claims Act. 28 U.S.C. Sec. 1346(b). For recent waivers of sovereign 
immunity, see P.L. 94-574, Sec. 1, 90 Stat. 2721 (1976), amending 5 
U.S.C. Sec. 702(waiver for nonstatutory review in all cases save for 
suits for money damages); P.L. 87-748, Sec. 1(a), 76 Stat. 744 (1962), 
28 U.S.C. Sec. 1361(giving district courts jurisdiction of mandamus 
actions to compel an officer or employee of the United States to perform 
a duty owed to plaintiff); Westfall Act, 102 Stat. 4563, 28 U.S.C. 
Sec. 2679(d) (torts of federal employees acting officially).
        \864\United States v. New York Rayon Co., 329 U.S. 654 (1947).
        \865\United States v. Shaw, 309 U.S. 495 (1940). Any consent to 
be sued will not be held to embrace action in the federal courts unless 
the language giving consent is clear. Great Northern Life Ins. Co. v. 
Read, 322 U.S. 47 (1944).
        The earlier narrow interpretation of the exceptions to the 
waiver of immunity set forth in the Federal Tort Claims Act, 28 U.S.C. 
Sec. 1346(b), gradually has given way to a liberal construction. Compare 
Dalehite v. United States, 346 U.S. 15 (1953), with Indian Towing Co. v. 
United States, 350 U.S. 61 (1955).
        \866\Minnesota v. United States, 305 U.S. 382 (1939). The United 
States was held here to be an indispensable party defendant in a 
condemnation proceeding brought by a State to acquire a right of way 
over lands owned by the United States and held in trust for Indian 
allottees. See also Block v. North Dakota, 461 U.S. 273 (1983).
        \867\Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

        Suits Against United States Officials.--United States v. Lee, a 
five-to-four decision, qualified earlier holdings to the effect that 
where a judgment affected the property of the United States the suit was 
in effect against the United States, by ruling that title to the 
Arlington estate of the Lee family, then being used as a national 
cemetery, was not legally vested in the United States but was being held 
illegally by army officers under an unlawful order of the President. In 
its examination of the sources and application of the rule of sovereign 
immunity, the Court concluded that the rule ``if not absolutely limited 
to cases in which the United States are made defendants by name, is not 
permitted to interfere with the judicial enforcement of the rights of 
plaintiff when the United States is not a defendant or a necessary party 
to the suit.''\868\ Except, nevertheless, for an occasional case like 
Kansas v. United States,\869\ which held that a State cannot sue the 
United States, most of the cases involving sovereign immunity from suit 
since 1883 have been cases against officers, agencies, or corporations 
of the United States where the United States has not been named as a 
party defendant. Thus, it has been held that a suit against the 
Secretary of the Treasury to review his decision on the rate of duty to 
be exacted on imported sugar would disturb the whole revenue system of 
the Government and would in effect be a suit against the United 
States.\870\ Even more significant is Stanley v. Schwalby,\871\ which 
resembled without paralleling United States v. Lee, where it was held 
that an action of trespass against an army officer to try title in a 
parcel of land occupied by the United States as a military reservation 
was a suit against the United States because a judg

[[Page 749]]
ment in favor of the plaintiffs would have been a judgment against the 
United States.

        \868\United States v. Lee, 106 U.S. 196, 207-208 (1882). The 
Tucker Act, 20 U.S.C. Sec. 1346(a)(2), now displaces the specific rule 
of the case, inasmuch as it provides jurisdiction against the United 
States for takings claims.
        \869\204 U.S. 331 (1907).
        \870\Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).
        \871\162 U.S. 255 (1896). Justice Gray endeavored to distinguish 
between this case and Lee. Id., 271. It was Justice Gray who spoke for 
the dissenters in Lee.

        Subsequent cases repeat and reaffirm the rule of United States 
v. Lee that where the right to possession or enjoyment of property under 
general law is in issue, the fact that defendants claim the property as 
officers or agents of the United States does not make the action one 
against the United States until it is determined that they were acting 
within the scope of their lawful authority.\872\ Contrariwise, the rule 
that a suit in which the judgment would affect the United States or its 
property is a suit against the United States has also been repeatedly 
approved and reaffirmed.\873\ But, as the Court has pointed out, it is 
not ``an easy matter to reconcile all of the decisions of the court in 
this class of cases,''\874\ and, as Justice Frankfurter quite 
justifiably stated in a dissent, ``the subject is not free from 
casuistry.''\875\ Justice Douglas' characterization of Land v. Dollar, 
``this is the type of case where the question of jurisdiction is 
dependent on decision of the merits,''\876\ is frequently applicable.

        \872\Land v. Dollar, 330 U.S. 731, 737 (1947).
        \873\Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. 
Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); 
Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 
(1925); Minnesota v. United States, 305 U.S.. 382 (1939); Mine Safety 
Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 
185 U.S. 373 (1902).
        \874\Cunningham v. Macon & Brunswick R.R. Co., 109 U.S. 446, 451 
(1883), quoted by Chief Justice Vinson in the opinion of the Court in 
Larson v. Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).
        \875\Id., 708. Justice Frankfurter's dissent also contains a 
useful classification of immunity cases and an appendix listing them.
        \876\330 U.S. 731, 735 (1947) (emphasis added).

        The case of Larson v. Domestic & Foreign Corp.,\877\ illuminates 
these obscurities somewhat. A private company sought to enjoin the 
Administrator of the War Assets in his official capacity from selling 
surplus coal to others than the plaintiff who had originally bought the 
coal, only to have the sale cancelled by the Administrator because of 
the company's failure to make an advance payment. Chief Justice Vinson 
and a majority of the Court looked upon the suit as one brought against 
the Administrator in his official capacity, acting under a valid statute 
and therefore a suit against the United States. It held that although an 
officer in such a situation is not immune from suits for his own torts, 
yet his official action, though tortious, cannot be enjoined or 
diverted, since it is also the action of the sovereign.\878\ The Court 
then proceeded to repeat the rule that ``the action of an officer of the 
sovereign (be it holding, taking, or otherwise legally affecting the 
plaintiff's property) can be

[[Page 750]]
regarded as so individual only if it is not within the officer's 
statutory powers, or, if within those powers, only if the powers or 
their exercise in the particular case, are constitutionally void.''\879\ 
The Court rejected the contention that the doctrine of sovereign 
immunity should be relaxed as inapplicable to suits for specific relief 
as distinguished from damage suits, saying: ``The Government, as 
representative of the community as a whole, cannot be stopped in its 
tracks by any plaintiff who presents a disputed question of property or 
contract right.''\880\

        \877\337 U.S. 682 (1949).
        \878\Id., 689-697.
        \879\Id., 701-702. This rule was applied in Goldberg v. Daniels, 
231 U.S. 218 (1913), which also involved a sale of government surplus 
property. After the Secretary of the Navy rejected the highest bid, 
plaintiff sought mandamus to compel delivery. This suit was held to be 
against the United States. See also Perkins v. Lukens Steel Co., 310 
U.S. 113 (1940), which held that prospective bidders for contracts 
derive no enforceable rights against a federal official for an alleged 
misinterpretation of his government's authority on the ground that an 
agent is answerable only to his principal for misconstruction of 
instructions, given for the sole benefit of the principal. In the Larson 
case, the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 
(1926), but in effect overruled it. The Goltra case involved an attempt 
of the Government to repossess barges which it had leased under a 
contract reserving the right to repossess in certain circumstances. A 
suit to enjoin repossession was held not to be a suit against the United 
States on the ground that the actions were personal and in the nature of 
a trespass.
        Also decided in harmony with the Larson decision are the 
following, wherein the suit was barred as being against the United 
States: (1) Malone v. Bowdoin, 369 U.S. 643 (1962), a suit to eject a 
Forest Service Officer from land occupied by him in his official 
capacity under a claim of title from the United States; and (2) Hawaii 
v. Gordon, 373 U.S. 57 (1963), an original action by Hawaii against the 
Director of the Budget for an order directing him to determine whether a 
parcel of federal land could be conveyed to that State. In Dugan v. 
Rank, 372 U.S. 609 (1963), the Court ruled that inasmuch as the storing 
and diverting of water at the Friant Dam resulted, not in a trespass, 
but in a partial, although a casual day-by-day, taking of water rights 
of claimants along the San Joaquin River below the dam, a suit to enjoin 
such diversion by Federal Bureau of Reclamation officers was an action 
against the United States, for grant of the remedy sought would force 
abandonment of a portion of a project authorized and financed by 
Congress, and would prevent fulfillment of contracts between the United 
States and local Water Utility Districts. Damages were recoverable in a 
suit under the Tucker Act. 28 U.S.C. Sec. 1346.
        \880\Id., 337 U.S., 703-704. Justice Frankfurter, dissenting, 
would have applied the rule of the Lee case. See P.L. 94-574, 1, 90 
Stat. 2721 (1976), amending 5 U.S.C. Sec. 702 (action seeking relief, 
except for money damages, against officer, employee, or agency not to be 
dismissed as action against United States).

        Suits against officers involving the doctrine of sovereign 
immunity have been classified by Justice Frankfurter in a dissenting 
opinion into four general groups. First, there are those cases in which 
the plaintiff seeks an interest in property which belongs to the 
Government or calls ``for an assertion of what is unquestionably 
official authority.''\881\ Such suits, of course, cannot be 
maintained.\882\ Second, cases in which action adverse to the interests 

[[Page 751]]
a plaintiff is taken under an unconstitutional statute or one alleged to 
be so. In general these suits are maintainable.\883\ Third, cases 
involving injury to a plaintiff because the official has exceeded his 
statutory authority. In general these suits are maintainable.\884\ 
Fourth, cases in which an officer seeks immunity behind statutory 
authority or some other sovereign command for the commission of a common 
law tort.\885\ This category of cases presents the greatest difficulties 
since these suits can as readily be classified as falling into the first 
group if the action directly or indirectly is one for specific 
performance or if the judgment would affect the United States.

        \881\Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710 
        \882\Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. 
McAdoo, 234 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See 
also Belknap v. Schild, 161 U.S. 10 (1896); International Postal Supply 
Co. v. Bruce, 194 U.S. 601 (1904).
        \883\Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); 
Tennessee Power Co. v. TVA, 306 U.S. 118 (1939) (holding that one 
threatened with direct and special injury by the act of an agent of the 
Government under a statute may challenge the constitutionality of the 
statute in a suit against the agent).
        \884\Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. 
Macy, 246 U.S. 606 (1918).
        \885\United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 
271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 
330 U.S. 731 (1947). See also Barr v. Matteo, 360 U.S. 564 (1959); 
Howard v. Lyons, 360 U.S. 593 (1959). An emerging variant is the 
constitutional tort case, which springs from Bivens v. Six Unknown Named 
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 
which involves different standards of immunity for officers. Butz v. 
Economou, 438 U.S. 478 (1978); Carlson v. Green, 446 U.S. 14 (1980); 
Harlow v. Fitzgerald, 457 U.S. 800 (1982).

        Suits Against Government Corporations.--The multiplication of 
government corporations during periods of war and depression has 
provided one motivation for limiting the doctrine of sovereign immunity. 
In Keifer & Keifer v. RFC,\886\ the Court held that the Government does 
not become a conduit of its immunity in suits against its agents or 
instrumentalities merely because they do its work. Nor does the creation 
of a government corporation confer upon it legal immunity. Whether 
Congress endows a public corporation with governmental immunity in a 
specific instance is a matter of ascertaining the congressional will. 
Moreover, it has been held that waivers of governmental immunity in the 
case of federal instrumentalities and corporations should be construed 
liberally.\887\ On the other hand, Indian nations are exempt from suit 
without further congressional authorization; it is as though their 
former immunity as sovereigns passed to the United States for their 
benefit, as did their tribal properties.\888\

        \886\306 U.S. 381 (1939).
        \887\FHA v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court 
held that a congressional waiver of immunity in the case of a 
governmental corporation did not mean that funds or property of the 
United States can be levied on to pay a judgment obtained against such a 
corporation as the result of waiver of immunity.
        \888\United States v. United States Fidelity Co., 309 U.S. 506 

[[Page 752]]

      Suits Between Two or More States

        The extension of federal judicial power to controversies between 
States and the vesting of original jurisdiction in the Supreme Court of 
suits to which a State is a party had its origin in experience. Prior to 
independence, disputes between colonies claiming charter rights to 
territory were settled by the Privy Council. Under the Articles of 
Confederation, Congress was made ``the last resort on appeal'' to 
resolve ``all disputes and differences . . . between two or more States 
concerning boundary, jurisdiction, or any other cause whatever,'' and to 
constitute what in effect were ad hoc arbitral courts for determining 
such disputes and rendering a final judgment therein. When the 
Philadelphia Convention met in 1787, serious disputes over boundaries, 
lands, and river rights involved ten States.\889\ It is hardly 
surprising, therefore, that during its first sixty years the only state 
disputes coming to the Supreme Court were boundary disputes\890\ or that 
such disputes constitute the largest single number of suits between 
States. Since 1900, however, as the result of the increasing mobility of 
population and wealth and the effects of technology and 
industrialization, other types of cases have occurred with increasing 

        \889\Warren, The Supreme Court and Disputes Between States, 34 
Bull. of William and Mary, No. 4 (1940), 7-11. For a more comprehensive 
treatment of background as well as the general subject, see C. Warren, 
The Supreme Court and the Sovereign States (Boston: 1924).
        \890\Id., 13. However, only three such suits were brought in 
this period, 1789-1849. During the next 90 years, 1849-1939, at least 
twenty-nine such suits were brought. Id., 13, 14.

        Boundary Disputes: The Law Applied.--Of the earlier examples of 
suits between States, that between New Jersey and New York\891\ is 
significant for the application of the rule laid down earlier in 
Chisholm v. Georgia that the Supreme Court may proceed ex parte if a 
State refuses to appear when duly summoned. The long drawn out 
litigation between Rhode Island and Massachusetts is of even greater 
significance for its rulings, after the case had been pending for seven 
years, that though the Constitution does not extend the judicial power 
to all controversies between States, yet it does not exclude any,\892\ 
that a boundary dispute is a justiciable and not a political 
question,\893\ and that a prescribed rule of decision is unnecessary in 
such cases. On the last point, Justice Baldwin stated: ``The submission 
by the sovereigns, or states, to a court of law or equity, of a 
controversy between them, without prescribing any rule of decision, 
gives power to decide according to the

[[Page 753]]
appropriate law of the case (11 Ves. 294); which depends on the subject-
matter, the source and nature of the claims of the parties, and the law 
which governs them. From the time of such submission, the question 
ceases to be a political one, to be decided by the sic volo, sic jubeo, 
of political power; it comes to the court, to be decided by its 
judgment, legal discretion and solemn consideration of the rules of law 
appropriate to its nature as a judicial question depending on the 
exercise of judicial power; as it is bound to act by known and settled 
principles of national or municipal jurisprudence, as the case 

        \891\New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1931).
        \892\Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657, 721 
        \893\Id., 736-737.
        \894\Id., 737. Chief Justice Taney dissented because of his 
belief that the issue was not one of property in the soil, but of 
sovereignty and jurisdiction, and hence political. Id., 752-753. For 
different reasons, it should be noted, a suit between private parties 
respecting soil or jurisdiction of two States, to which neither State is 
a party does not come within the original jurisdiction of the Supreme 
Court. Fowler v. Lindsey, 3 Dall. (3 U.S.) 411 (1799). For recent 
boundary cases, see United States v. Maine (Rhode Island and New York 
Boundary Case), 469 U.S. 504 (1985); United States v. Louisiana (Alabama 
and Mississippi Boundary Case), 470 U.S. 93 (1985); United States v. 
Maine, 475 U.S. 89 (1986); Georgia v. South Carolina, 497 U.S. 336 
(1990); Mississippi v. Louisiana, 113 S.Ct. 549 (1992).

        Modern Types of Suits Between States.--Beginning with Missouri 
v. Illinois & Chicago District,\895\ which sustained jurisdiction to 
entertain an injunction suit to restrain the discharge of sewage into 
the Mississippi River, water rights, the use of water resources, and the 
like, have become an increasing source of suits between States. Such 
suits have been especially frequent in the western States, where water 
is even more of a treasure than elsewhere, but they have not been 
confined to any one region. In Kansas v. Colorado,\896\ the Court 
established the principle of the equitable division of river or water 
resources between conflicting state interests. In New Jersey v. New 
York,\897\ where New Jersey sought to enjoin the diversion of waters 
into the Hudson River watershed for New York in such a way as to 
diminish the flow of the Delaware River in New Jersey, injure its shad 
fisheries, and increase harmfully the saline contents of the Delaware, 
Justice Holmes stated for the Court: ``A river is more than an amenity, 
it is a treasure. It offers a necessity of life that must be rationed 
among those who have power over it. New York has the physical power to 
cut off all the water within its jurisdiction. But clearly the exercise 
of such a power to the destruction of the interest of lower States could 
not be tolerated. And, on the other hand, equally little could New 
Jersey be permitted to require New York to give up its power altogether 
in order that the river might come down to it undiminished.

[[Page 754]]
Both States have real and substantial interests in the river that must 
be reconciled as best they may be.''\898\

        \895\180 U.S. 208 (1901).
        \896\206 U.S. 46 (1907). See also Idaho ex rel. Evans v. Oregon 
and Washington, 444 U.S. 380 (1980).
        \897\283 U.S. 336 (1931).
        \898\Id., 342. See also Nebraska v. Wyoming, 325 U.S. 589 
(1945); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017 (1983). In Ohio v. 
Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court held it had 
jurisdiction of a suit by a State against citizens of other States to 
abate a nuisance allegedly caused by the dumping of mercury into streams 
that ultimately run into Lake Erie, but it declined to permit the filing 
because the presence of complex scientific issues made the case more 
appropriate for first resolution in a district court. See also Texas v. 
New Mexico, 462 U.S. 554 (1983); Nevada v. United States, 463 U.S. 110 

        Other types of interstate disputes of which the Court has taken 
jurisdiction include suits by a State as the donee of the bonds of 
another to collect thereon,\899\ by Virginia against West Virginia to 
determine the proportion of the public debt of the original State of 
Virginia which the latter owed the former,\900\ by Arkansas to enjoin 
Texas from interfering with the performance of a contract by a Texas 
foundation to contribute to the construction of a new hospital in the 
medical center of the University of Arkansas,\901\ of one State against 
another to enforce a contract between the two,\902\ of a suit in equity 
between States for the determination of a decedent's domicile for 
inheritance tax purposes,\903\ and of a suit by two States to restrain a 
third from enforcing a natural gas measure which purported to restrict 
the interstate flow of natural gas from the State in the event of a 

        \899\South Dakota v. North Carolina, 192 U.S. 286 (1904).
        \900\Virginia v. West Virginia, 220 U.S. 1 (1911).
        \901\Arkansas v. Texas, 346 U.S. 368 (1953).
        \902\Kentucky v. Indiana, 281 U.S. 163 (1930).
        \903\Texas v. Florida, 306 U.S. 398 (1939). In California v. 
Texas, 437 U.S. 601 (1978), the Court denied a State leave to file an 
original action against another State to determine the contested 
domicile of a decedent for death tax purposes, with several Justices of 
the view that Texas v. Florida had either been wrongly decided or was 
questionable. But after determining that an interpleader action by the 
administrator of the estate for a determination of domicile was barred 
by the Eleventh Amendment, Cory v. White, 457 U.S. 85 (1982), the Court 
over dissent permitted filing of the original action. California v. 
Texas, 457 U.S. 164 (1982).
        \904\Pennsylvania v. West Virginia, 262 U.S. 553 (1923). The 
Court, in Maryland v. Louisiana, 451 U.S. 725 (1981), over strong 
dissent, relied on this case in permitting suit contesting a tax imposed 
on natural gas, the incidence of which fell on the suing State's 
consuming citizens. And in Wyoming v. Oklahoma, 112 S.Ct. 789 (1992), 
the Court permitted a State to sue another to contest a law requiring 
that all in-state utilities burn a mixture containing at least 10% in-
state coal, the plaintiff State having previously supplied 100% of the 
coal to those utilities and thus suffering a loss of coal-severance tax 

        In Texas v. New Jersey,\905\ the Court adjudicated a multistate 
dispute about which State should be allowed to escheat intangible 
property consisting of uncollected small debts held by a corporation. 
Emphasizing that the States could not constitutionally provide a rule of 
settlement and that no federal statute governed the

[[Page 755]]
matter, the Court evaluated the possible rules and chose the one easiest 
to apply and least likely to lead to continuing disputes.

        \905\379 U.S. 674 (1965). See also Pennsylvania v. New York, 406 
U.S. 206 (1972).

        In general, in taking jurisdiction of these suits, along with 
those involving boundaries and the diversion or pollution of water 
resources, the Supreme Court proceeded upon the liberal construction of 
the term ``controversies between two or more States'' enunciated in 
Rhode Island v. Massachusetts,\906\ and fortified by Chief Justice 
Marshall's dictum in Cohens v. Virginia,\907\ concerning jurisdiction 
because of the parties to a case, that ``it is entirely unimportant, 
what may be the subject of controversy. Be it what it may, these parties 
have a constitutional right to come into the Courts of the Union.''\908\

        \906\12 Pet. (37 U.S.) 657 (1838).
        \907\6 Wheat. (19 U.S.) 264 (1821).
        \908\Id., 378. See Western Union Co. v. Pennsylvania, 368 U.S. 
71, 79-80 (1961); Texas v. New Jersey, 379 U.S. 674, 677 (1965); 
Pennsylvania v. New York, 407 U.S. 206 (1972).

        Cases of Which the Court Has Declined Jurisdiction.--In other 
cases, however, the Court, centering its attention upon the elements of 
a case or controversy, has declined jurisdiction. Thus, in Alabama v. 
Arizona,\909\ where Alabama sought to enjoin nineteen States from 
regulating or prohibiting the sale of convict-made goods, the Court went 
far beyond holding that it had no jurisdiction, and indicated that 
jurisdiction of suits between States will be exercised only when 
absolutely necessary, that the equity requirements in a suit between 
States are more exacting than in a suit between private persons, that 
the threatened injury to a plaintiff State must be of great magnitude 
and imminent, and that the burden on the plaintiff State to establish 
all the elements of a case is greater than that generally required by a 
petitioner seeking an injunction suit in cases between private parties.

        \909\291 U.S. 286 (1934). The Court in recent years, with a 
significant caseload problem, has been loath to permit filings of 
original actions where the parties might be able to resolve their 
disputes in other courts, even in cases in which the jurisdiction over 
the particular dispute is exclusively original. Arizona v. New Mexico, 
425 U.S. 794 (1976) (dispute subject of state court case brought by 
private parties); California v. West Virginia, 454 U.S. 1027 (1981).

        Pursuing a similar line of reasoning, the Court declined to take 
jurisdiction of a suit brought by Massachusetts against Missouri and 
certain of its citizens to prevent Missouri from levying inheritance 
taxes upon intangibles held in trust in Missouri by resident trustees. 
In holding that the complaint presented no justiciable controversy, the 
Court declared that to constitute such a controversy, the complainant 
State must show that it ``has suffered a wrong through the action of the 
other State, furnishing ground for judicial redress, or is asserting a 
right against the other State

[[Page 756]]
which is susceptible of judicial enforcement according to . . . the 
common law or equity systems of jurisprudence.''\910\ The fact that the 
trust property was sufficient to satisfy the claims of both States and 
that recovery by either would not impair any rights of the other 
distinguished the case from Texas v. Florida,\911\ where the contrary 
situation obtained. Furthermore, the Missouri statute providing for 
reciprocal privileges in levying inheritance taxes did not confer upon 
Massachusetts any contractual right. The Court then proceeded to 
reiterate its earlier rule that a State may not invoke the original 
jurisdiction of the Supreme Court for the benefit of its residents or to 
enforce the individual rights of its citizens.\912\ Moreover, 
Massachusetts could not invoke the original jurisdiction of the Court by 
the expedient of making citizens of Missouri parties to a suit not 
otherwise maintainable.\913\ Accordingly, Massachusetts was held not to 
be without an adequate remedy in Missouri's courts or in a federal 
district court in Missouri.

        \910\Massachusetts v. Missouri, 308 U.S. 1, 15-16, (1939), 
citing Florida v. Mellon, 273 U.S. 12 (1927).
        \911\306 U.S. 398 (1939).
        \912\Id., 308 U.S., 17, citing Oklahoma v. Atchison, T. & S.F. 
Ry., 220 U.S. 277 286, (1911), and Oklahoma ex rel Johnson v. Cook, 304 
U.S. 387, 394 (1938). See also New Hampshire v. Louisiana and New York 
v. Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a 
suit on behalf of its citizens to collect on bonds issued by another 
State, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a 
State cannot sue another to prevent maladministration of quarantine 
        \913\Id., 308 U.S., 17, 19.

        The Problem of Enforcement: Virginia v. West Virginia.--A very 
important issue that presents itself in interstate litigation is the 
enforcement of the Court's decree, once it has been entered. In some 
types of suits, this issue may not arise, and if it does, it may be 
easily met. Thus, a judgment putting a State in possession of disputed 
territory is ordinarily self-executing. But if the losing State should 
oppose execution, refractory state officials, as individuals, would be 
liable to civil suits or criminal prosecutions in the federal courts. 
Likewise an injunction may be enforced against state officials as 
individuals by civil or criminal proceedings. Those judgments, on the 
other hand, which require a State in its governmental capacity to 
perform some positive act present the issue of enforcement in more 
serious form. The issue arose directly in the long and much litigated 
case between Virginia and West Virginia over the proportion of the state 
debt of original Virginia owed by West Virginia after its separate 
admission to the Union under a compact which provided that West Virginia 
assume a share of the debt.

[[Page 757]]

        The suit was begun in 1906, and a judgment was rendered against 
West Virginia in 1915. Finally, in 1917, Virginia filed a suit against 
West Virginia to show cause why, in default of payment of the judgment, 
an order should not be entered directing the West Virginia legislature 
to levy a tax for payment of the judgment.\914\ Starting with the rule 
that the judicial power essentially involves the right to enforce the 
results of its exertion,\915\ the Court proceeded to hold that it 
applied with the same force to States as to other litigants\916\ and to 
consider appropriate remedies for the enforcement of its authority. In 
this connection, Chief Justice White declared: ``As the powers to render 
the judgment and to enforce it arise from the grant in the Constitution 
on that subject, looked at from a generic point of view, both are 
federal powers and, comprehensively considered, are sustained by every 
authority of the federal government, judicial, legislative, or 
executive, which may be appropriately exercised.''\917\ The Court, 
however, left open the question of its power to enforce the judgment 
under existing legislation and scheduled the case for reargument at the 
next term, but in the meantime West Virginia accepted the Court's 
judgment and entered into an agreement with Virginia to pay it.\918\

        \914\The various litigations of Virginia v. West Virginia are to 
be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 
222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 
202 (1915); 241 U.S.C. Sec. 531 (1916); 246 U.S. 565 (1918).
        \915\Id., 246 U.S., 591.
        \916\Id., 600.
        \917\Id., 601.
        \918\C. Warren, The Supreme Court and Sovereign States (Boston: 
1924), 78-79.
      Controversies Between a State and Citizens of Another State

        The decision in Chisholm v. Georgia\919\ that this category of 
cases included equally those where a State was a party defendant 
provoked the proposal and ratification of the Eleventh Amendment, and 
since then controversies between a State and citizens of another State 
have included only those cases where the State has been a party 
plaintiff or has consented to be sued.\920\ As a party plaintiff, a 
State may bring actions against citizens of other States to protect its 
legal rights or in some instances as parens patriae to protect the 
health and welfare of its citizens. In general, the Court has tended to 
construe strictly this grant of judicial power, which simultaneously 
comes within its original jurisdiction, by perhaps an even more rigorous 
application of the concepts of cases and con

[[Page 758]]
troversies than that in cases between private parties.\921\ This it does 
by holding rigorously to the rule that all the party defendants be 
citizens of other States\922\ and by adhering to congressional 
distribution of its original jurisdiction concurrently with that of 
other federal courts.\923\

        \919\2 Dall. (2 U.S.) 419 (1793).
        \920\See the discussion under the Eleventh Amendment.
        \921\Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. 
Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926).
        \922\Pennsylvania v. Quicksilver Company, 10 Wall. (77 U.S.) 553 
(1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); 
Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).
        \923\Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

        Jurisdiction Confined to Civil Cases.--In Cohens v. 
Virginia,\924\ there is a dictum to the effect that the original 
jurisdiction of the Supreme Court does not include suits between a State 
and its own citizens. Long afterwards, the Supreme Court dismissed an 
action for want of jurisdiction because the record did not show the 
corporation against which the suit was brought was chartered in another 
State.\925\ Subsequently, the Court has ruled that it will not entertain 
an action by a State to which its citizens are either parties of record 
or would have to be joined because of the effect of a judgment upon 
them.\926\ In his dictum in Cohens v. Virginia, Chief Justice Marshall 
also indicated that perhaps no jurisdiction existed over suits by States 
to enforce their penal laws.\927\ Sixty-seven years later, the Court 
wrote this dictum into law in Wisconsin v. Pelican Ins. Co.\928\ 
Wisconsin sued a Louisiana corporation to recover a judgment rendered in 
its favor by one of its own courts. Relying partly on the rule of 
international law that the courts of no country execute the penal laws 
of another, partly upon the 13th section of the Judiciary Act of 1789 
which vested the Supreme Court with exclusive jurisdiction of 
controversies of a civil nature where a State is a party, and partly on 
Justice Iredell's dissent in Chisholm v. Georgia,\929\ where he confined 
the term ``controversies'' to civil suits, Justice Gray ruled for the 
Court that for purposes of original jurisdiction, ``controversies 
between a State and citizens of another State'' are confined to civil 

        \924\6 Wheat. (19 U.S.) 264, 398-399 (1821).
        \925\Pennsylvania v. Quicksilver Mining Co., 10 Wall. (77 U.S.) 
553 (1871).
        \926\California v. Southern Pacific Co., 157 U.S. 229 (1895); 
Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).
        \927\Id., 6 Wheat. (19 U.S.), 398-399.
        \928\127 U.S. 265 (1888).
        \929\2 Dall. (2 U.S.) 419, 431-432 (1793).
        \930\Id., 127 U.S., 289-300.

        The State's Real Interest.--Ordinarily, a State may not sue in 
its name unless it is the real party in interest with real inter

[[Page 759]]
ests. It can sue to protect its own property interests,\931\ and if it 
sues for its own interest as owner of another State's bonds, rather than 
as an assignee for collection, jurisdiction exists.\932\ Where a State 
in order to avoid the limitation of the Eleventh Amendment by statute 
provided for suit in the name of the State to collect on the bonds of 
another State held by one of its citizens, it was refused the right to 
sue.\933\ Nor can a State sue on behalf of its own citizens the citizens 
of other States to collect claims.\934\

        \931\Pennsylvania v. Wheeling & B. Bridge Co., 13 How. (54 U.S.) 
518, 559 (1852); Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938); 
Georgia v. Evans, 316 U.S. 159 (1942).
        \932\South Dakota v. North Carolina, 192 U.S. 286 (1904).
        \933\New Hampshire v. Louisiana, 108 U.S. 76 (1883).
        \934\Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938).

        The State as Parens Patriae.--The distinction between suits 
brought by States to protect the welfare of its citizens as a whole and 
suits to protect the private interests of individual citizens is not 
easily drawn. Thus, in Oklahoma v. Atchison, T. & S.F. Ry.,\935\ the 
State was refused permission to sue to enjoin unreasonable rate charges 
by a railroad on the shipment of specified commodities, inasmuch as the 
State was not engaged in shipping these commodities and had no 
proprietary interest in them. But in Georgia v. Pennsylvania R. 
Co.,\936\ a closely divided Court accepted a suit by the State, suing as 
parens patriae and in its proprietary capacity, the latter being treated 
by the Court as something of a makeweight, seeking injunctive relief 
against twenty railroads on allegations that the rates were 
discriminatory against the State and its citizens and their economic 
interests and that the rates had been fixed through coercive action by 
the northern roads against the southern lines in violation of the 
Clayton Antitrust Act. For the Court, Justice Douglas observed that the 
interests of a State for purposes of invoking the original jurisdiction 
of the Court were not to be confined to those which are proprietary but 
to ``embrace the so called `quasi-sovereign' interests which . . . are 
`independent of and behind the titles of its citizens, in all the earth 
and air within its domain.'''\937\

        \935\220 U.S. 277 (1911).
        \936\324 U.S. 439 (1945).
        \937\Id., 447-448 (quoting from Georgia v. Tennessee Copper Co., 
206 U.S. 230, 237 (1907), in which the State was permitted to sue parens 
patriae to enjoin defendant from emitting noxious gases from its works 
in Tennessee which caused substantial damage in nearby areas of Georgia) 
In Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 
607-608 (1982), the Court attempted to enunciate the standards by which 
to recognize permissible parens patriae assertions. See also Maryland v. 
Louisiana, 451 U.S. 725, 737-739 (1981).

        Discriminatory freight rates, the Justice continued, may cause a 
blight no less serious than noxious gases in that they may arrest

[[Page 760]]
the development of a State and put it at a competitive disadvantage. 
``Georgia as a representative of the public is complaining of a wrong 
which, if proven, limits the opportunities of her people, shackles her 
industries, retards her development, and relegates her to an inferior 
economic position among her sister States. These are matters of grave 
public concern in which Georgia has an interest apart from that of 
particular individuals who may be affected. Georgia's interest is not 
remote; it is immediate. If we denied Georgia as parens patriae the 
right to invoke the original jurisdiction of the Court in a matter of 
that gravity, we would whittle the concept of justiciability down to the 
stature of minor or conventional controversies. There is no warrant for 
such a restriction.''\938\

        \938\Georgia v. Pennsylvania R. Co., 324 U.S. 439, 468 (1945). 
Chief Justice Stone and Justices Roberts, Frankfurter, and Jackson 

        The continuing vitality of this case is in some doubt, inasmuch 
as the Court has limited it in a similar case.\939\ But the ability of 
States to act as parens patriae for their citizens in environmental 
pollution cases seems established, although as a matter of the Supreme 
Court's original jurisdiction such suits are not in favor.\940\

        \939\In Hawaii v. Standard Oil Co., 405 U.S. 251 (1972), the 
Court, five-to-two, held that the State could not maintain an action for 
damages parens patriae under the Clayton Act and limited the previous 
case to instances in which injunctive relief is sought. Hawaii had 
brought its action in federal district court. The result in Hawaii was 
altered by P.L. 94-435, 90 Stat. 1383 (1976), 15 U.S.C. Sec. 15c et 
seq., but the decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 
(1977), reduced in importance the significance of the law.
        \940\Most of the cases, but see Georgia v. Tennessee Copper Co., 
206 U.S. 230 (1907), concern suits by one State against another. 
Missouri v. Illinois, 180 U.S. 208 (1901); New York v. New Jersey, 256 
U.S. 296 (1921); North Dakota v. Minnesota, 263 U.S. 365 (1923). While 
recognizing that original jurisdiction exists when a State sues a 
political subdivision of another State or a private party as parens 
patriae for its citizens and on its own proprietary interests to abate 
environmental pollution, the Court has held that because of the 
technical complexities of the issues and the inconvenience of 
adjudicating them on its original docket the cases should be brought in 
the federal district court under federal question jurisdiction founded 
on the federal common law. Illinois v. City of Milwaukee, 406 U.S. 91 
(1972); Washington v. General Motors Corp., 406 U.S. 109 (1972). The 
Court had earlier thought the cases must be brought in state court. Ohio 
v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971).

        One clear limitation had seemed to be solidly established until 
recent litigation cast doubt on its foundation. It is no part of a 
State's ``duty or power,'' said the Court in Massachusetts v. 
Mellon,\941\ ``to enforce [her citizens'] rights in respect to their 
relations with the Federal Government. In that field, it is the United 
States and not the State which represents them as parens patriae when 
such representation becomes appropriate; and to the former, and not to 
the latter, they must look for such protective measures as

[[Page 761]]
flow from that status.'' But in South Carolina v. Katzenbach,\942\ while 
holding that the State lacked standing under Massachusetts v. Mellon to 
attack the constitutionality of the Voting Rights Act of 1965 \943\ 
under the Fifth Amendment's due-process clause and under the bill-of-
attainder clause of Article I,\944\ the Court proceeded to decide on the 
merits the State's claim that Congress had exceeded its powers under the 
Fifteenth Amendment.\945\ Was the Court here sub silentio permitting it 
to assert its interest in the execution of its own laws, rather than 
those enacted by Congress, or its interest in having Congress enact only 
constitutional laws for application to its citizens, an assertion which 
is contrary to a number of supposedly venerated cases.\946\ Either 
alternative possibility would be significant in a number of 

        \941\262 U.S. 447, 486 (1923).
        \942\383 U.S. 301 (1966). The State sued the Attorney General of 
the United States as a citizen of New Jersey, thus creating the 
requisite jurisdiction, and avoiding the problem that the States may not 
sue the United States without its consent. Minnesota v. Hitchcock, 185 
U.S. 373 (1902); Oregon v. Hitchcock, 202 U.S. 60 (1906); Kansas v. 
United States, 204 U.S. 331 (1907). The expedient is, of course, the 
same device as is used to avoid the Eleventh Amendment prohibition 
against suing a State by suing its officers. Ex parte Young, 209 U.S. 
123 (1908).
        \943\79 Stat. 437 (1965), 42 U.S.C. Sec. 1973 et seq.
        \944\The Court first held that neither of these provisions were 
restraints on what the Federal Government might do with regard to a 
State. It then added: ``Nor does a State have standing as the parent of 
its citizens to invoke these constitutional provisions against the 
Federal Government, the ultimate parents patriae of every American 
citizen.'' South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).
        \945\The Court did not indicate on what basis South Carolina 
could raise the issue. At the beginning of its opinion, the Court did 
note the ``[o]riginal jurisdiction is founded on the presence of a 
controversy between a State and a citizen of another State under Art. 
III, Sec. 2, of the constitution. See Georgia v. Pennsylvania R. Co., 
324 U.S. 439.'' Id., 307 But surely this did not have reference to that 
case's parens patriae holding.
        \946\See Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida 
v. Mellon, 273 U.S. 12 (1927); Jones ex rel. Louisiana v. Bowles, 322 
U.S. 707 (1944). See especially Georgia v. Stanton, 6 Wall. (73 U.S.) 50 
(1867); Mississippi v. Johnson, 4 Wall. (71 U.S.) 475 (1867). In Oregon 
v. Mitchell, 400 U.S. 112 (1970), four original actions were 
consolidated and decided. Two were actions by the United States against 
States, but the other two were suits by States against the Attorney 
General, as a citizen of New York, seeking to have the Voting Rights Act 
Amendments of 1970 voided as unconstitutional. South Carolina v. 
Katzenbach was uniformly relied on by all parties as decisive of the 
jurisdictional question, and in announcing the judgment of the Court 
Justice Black simply noted that no one raised jurisdictional or 
justiciability questions. Id., 117 n. 1. And see id., 152 n. 1 (Justice 
Harlan concurring in part and dissenting in part). See also South 
Carolina v. Baker, 485 U.S. 505 (1988); South Carolina v. Regan, 465 
U.S. 367 (1984).
        \947\Bickel, The Voting Rights Cases, 1966 Sup. Ct. Rev. 79, 80-
      Controversies Between Citizens of Different States

        The records of the Federal Convention are silent with regard to 
the reasons the Framers included in the judiciary article jurisdiction 
in the federal courts of controversies between citizens of dif

[[Page 762]]
ferent States,\948\ but since the Judiciary Act of 1789 ``diversity 
jurisdiction'' has been bestowed statutorily on the federal courts.\949\ 
The traditional explanation remains that offered by Chief Justice 
Marshall. ``However true the fact may be, that the tribunals of the 
states will administer justice as impartially as those of the nation, to 
parties of every description, it is not less true that the Constitution 
itself either entertains apprehensions on this subject, or views with 
such indulgence the possible fears and apprehensions of suitors, that it 
has established national tribunals for the decision of controversies 
between aliens and a citizen, or between citizens of different 
states.''\950\ Other explanations have been offered and 
controverted,\951\ but diversity cases constitute a large bulk of cases 
on the dockets of the federal courts today, though serious proposals for 
restricting access to federal courts in such cases have been before 
Congress for some time.\952\ The essential difficulty with this type of 
jurisdiction is that it requires federal judges to decide issues of 
local import on the basis of their reading of how state judges would 
decide them, an oftentimes laborious process, which detracts from the 
time and labor needed to resolve issues of federal import.

        \948\Friendly, The Historic Basis of Diversity Jurisdiction, 41 
Harv. L. Rev. 483 (1928).
        \949\1 Stat. 78, Sec. 11. The statute also created alienage 
jurisdiction of suits between a citizen of a State and an alien. See 
Holt, The Origins of Alienage Jurisdiction, 14 Okla. City L. Rev. 547 
(1989). Subject to a jurisdictional amount, now $50,000, 28 U.S.C. 
Sec. 1332, the statute conferred diversity jurisdiction when the suit 
was between a citizen of the State in which the suit was brought and a 
citizen of another State. The Act of March 3, 1875, Sec. 1. 18 Stat. 
470, first established the language in the present statute, 28 U.S.C. 
Sec. 1332(a)(1), merely requiring diverse citizenship, so that a citizen 
of Maryland could sue a citizen of Delaware in federal court in New 
Jersey. Snyder v. Harris, 394 U.S. 332 (1969), held that in a class 
action in diversity the individual claims could not be aggregated to 
meet the jurisdictional amount. Zahn v. International Paper Co., 414 
U.S. 291 (1974), extended Snyder in holding that even though the named 
plaintiffs had claims of more than $10,000 they could not represent a 
class in which many of the members had claims for less than $10,000.
        \950\Bank of the United States v. Deveaux, 5 Cr. (9 U.S.) 61, 87 
        \951\Summarized and discussed in C. Wright, Handbook of the Law 
of Federal Courts (St. Paul: 4th ed. 1983), 23; American Law Institute, 
Study of the Division of Jurisdiction Between State and Federal Courts 
(Philadelphia: 1969), 99-110, 458-464.
        \952\The principal proposals are those of the American Law 
Institute. Id., 123-134.

        The Meaning of ``State'' and the District of Columbia Problem.--
In Hepburn v. Ellzey,\953\ Chief Justice Marshall for the Court confined 
the meaning of the word ``State'' as used in the Constitution to ``the 
members of the American confederacy'' and ruled that a citizen of the 
District of Columbia could not sue a citizen of Virginia on the basis of 
diversity of citizenship. Marshall noted

[[Page 763]]
that it was ``extraordinary that the courts of the United States, which 
are open to aliens, and to the citizens of every state in the union, 
should be closed upon them. But this is a subject for legislative, not 
for judicial consideration.''\954\ The same rule was subsequently 
applied to citizens of the territories of the United States.\955\

        \953\2 Cr. (6 U.S.) 445 (1805).
        \954\Id., 453.
        \955\City of New Orleans v. Winter, 1 Wheat. (14 U.S.) 91 

        Whether the Chief Justice had in mind a constitutional amendment 
or a statute when he spoke of legislative consideration remains unclear. 
Not until 1940, however, did Congress attempt to meet the problem by 
statutorily conferring on federal district courts jurisdiction of civil 
actions, not involving federal questions, ``between citizens of 
different States, or citizens of the District of Columbia, the Territory 
of Hawaii, or Alaska and any State or Territory.''\956\ In National 
Mutual Ins. Co. v. Tidewater Transfer Co.,\957\ this act was upheld in a 
five-to-four decision but for widely divergent reasons by a coalition of 
Justices. Two Justices thought that Chief Justice Marshall's 1804 
decision should be overruled, but the other seven Justices disagreed; 
however, three of the seven thought the statute could be sustained under 
Congress' power to enact legislation for the inhabitants of the District 
of Columbia, but the remaining four plus the other two rejected this 
theory. The statute was upheld because a total of five Justices voted to 
sustain it, although of the two theories relied on, seven Justices 
rejected one and six the other. The result, attributable to 
``conflicting minorities in combination,''\958\ means that Hepburn v. 
Ellzey is still good law insofar as it holds that the District of 
Columbia is not a State, but is overruled insofar as it holds that 
District citizens may not utilize federal diversity jurisdiction.\959\

        \956\54 Stat. 143 (1940), as revised, 28 U.S.C. Sec. 1332(d).
        \957\337 U.S. 582 (1948).
        \958\Id., 655 (Justice Frankfurter dissenting).
        \959\The statute's provision allowing citizens of Puerto Rico to 
sue in diversity was sustained in Americana of Puerto Rico v. Kaplus, 
368 F. 2d 431 (3d Cir., 1966), cert. den., 386 U.S. 943 (1967), under 
Congress' power to make rules and regulations for United States 
territories. Cf. Examining Board v. Flores de Otero, 426 U.S. 572, 580-
597 (1976) (discussing congressional acts with respect to Puerto Rico).

        Citizenship of Natural Persons.--For purposes of diversity 
jurisdiction, state citizenship is determined by the concept of 
domicile\960\ rather than of mere residence.\961\ That is, while the 
Court's definition has varied throughout the cases,\962\ a person is a 
citizen of the State in which he has his true, fixed, and permanent home

[[Page 764]]
and principal establishment and to which he intends to return whenever 
he is absent from it.\963\ Acts may disclose intention more clearly and 
decisively than declarations.\964\ One may change his domicile in an 
instant by taking up residence in the new place and by intending to 
remain there indefinitely and one may obtain the benefit of diversity 
jurisdiction by so changing for that reason alone,\965\ provided the 
change is more than a temporary expedient.\966\

        \960\Chicago & N.W.R. Co. v. Ohle, 117 U.S. 123 (1886).
        \961\Sun Printing & Pub. Assn. v. Edwards, 194 U.S. 377 (1904).
        \962\Knox v. Greenleaf, 4 Dall. (4 U.S.) 360 (1802); Shelton v. 
Tiffin, 6 How. (47 U.S.) 163 (1848); Williamson v. Osenton, 232 U.S. 619 
        \963\Stine v. Moore, 213 F. 2d 446, 448 (5th Cir. 1954).
        \964\Shelton v. Tiffin, 6 How. (47 U.S.) 163 (1848).
        \965\Williamson v. Osenton, 232 U.S. 619 (1914).
        \966\Jones v. League, 18 How. (59 U.S.) 76 (1855).

        If the plaintiff and the defendant are citizens of different 
States, diversity jurisdiction exists regardless of the State in which 
suit is brought.\967\ Chief Justice Marshall early established that in 
multiparty litigation, there must be complete diversity, that is, that 
no party on one side could be a citizen of any State of which any party 
on the other side was a citizen.\968\ It has now apparently been decided 
that this requirement flows from the statute on diversity rather than 
from the constitutional grant and that therefore minimal diversity is 
sufficient.\969\ The Court has also placed some issues beyond litigation 
in federal courts in diversity cases, apparently solely on policy 

        \967\28 U.S.C. Sec. 1332(a)(1).
        \968\Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806).
        \969\In State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 
530-531 (1967), holding that congressional provision in the interpleader 
statute of minimal diversity, 28 U.S.C. Sec. 1335(a)(1), was valid, the 
Court said of Strawbridge. ``Chief Justice Marshall there purported to 
construe only ``The words of the act of Congress,' not the Constitution 
itself. And in a variety of contexts this Court and the lower courts 
have concluded that Article III poses no obstacle to the legislative 
extension of federal jurisdiction, founded on diversity, so long as any 
two adverse parties are not co-citizens.'' Of course, the diversity 
jurisdictional statute not having been changed, complete diversity of 
citizenship, outside the interpleader situation, is still required. In 
class actions, only the citizenship of the named representatives is 
considered and other members of the class can be citizens of the same 
State as one or more of the parties on the other side. Supreme Tribe of 
Ben-Hur v. Cauble, 255 U.S. 356 (1921); Snyder v. Harris, 394 U.S. 332, 
340 (1969).
        \970\In domestic relations cases and probate matters, the 
federal courts will not act, though diversity exists. Barber v. Barber, 
21 How. (62 U.S.) 582 (1858); Ex parte Burrus, 136 U.S. 586 (1890); In 
re Broderick's Will, 21 Wall. (88 U.S.) 503 (1875). These cases merely 
enunciated the rule, without justifying it; when the Court squarely 
faced the issue quite recently, it adhered to the rule, citing 
justifications. Ankenbrandt v. Richards, 112 S.Ct. 2206 (1992).

        Citizenship of Corporations.--In Bank of the United States v. 
Deveaux,\971\ Chief Justice Marshall declared: ``That invisible, 
intangible, and artificial being, that mere legal entity, a corporation 
aggregate, is certainly not a citizen; and consequently cannot sue or be 
sued in the courts of the United States, unless the rights of

[[Page 765]]
the members, in this respect, can be exercised in their corporate 
name.'' The Court upheld diversity jurisdiction because the members of 
the bank as a corporation were citizens of one State and Deveaux was a 
citizen of another. The holding was reaffirmed a generation later,\972\ 
but the pressures were building for change, because of the increased 
economic role of the corporation and because the Strawbridge rule\973\ 
would have soon closed the doors of the federal courts to the larger 
corporations with stockholders in many States.

        \971\5 Cr. (9 U.S.) 61, 86 (1809).
        \972\Commercial & Railroad Bank v. Slocomb, 14 Pet. (39 U.S.) 60 
        \973\Strawbridge v. Curtiss, 3 Cr. (7 U.S.) 267 (1806).

        Deveaux was overruled in 1844, when after elaborate argument a 
divided Court held that ``a corporation created by and doing business in 
a particular State, is to be deemed to all intents and purposes as a 
person, although an artificial person, an inhabitant of the same State, 
for the purposes of its incorporation, capable of being treated as a 
citizen of that State, as much as a natural person.''\974\ Ten years 
later, the Court abandoned this rationale, but it achieved the same 
result by creating a conclusive presumption that all of the stockholders 
of a corporation are citizens of the State of incorporation.\975\ 
Through this fiction, substantially unchanged today,\976\ the Court was 
able to hold that a corporation cannot be a citizen for diversity 
purposes and that the citizenship of its stockholders controls but to 
provide corporations access to federal courts in diversity in every 
State except the one in which it is incorporated.\977\ The right of 
foreign corporations to resort to federal courts in diversity is not one 
which the States may condition as a qualification for doing business in 
the State.\978\

        \974\Louisville, C. & C.R. Co. v. Letson, 2 How. (43 U.S.) 497, 
558 (1844).
        \975\Marshall v. Baltimore & Ohio R. Co., 16 How, (57 U.S.) 314 
(1854). See Muller v. Dows, 94 U.S. 444 (1877); St. Louis & S.F. Ry. Co. 
v. James, 161 U.S. 545 (1896). The Court has more than once pronounced 
that the Marshall position is settled. E.g., United Steelworkers of 
America v. R. H. Bouligny, Inc., 382 U.S. 272, 273 (1965); Carden v. 
Arkoma Associates, 494 U.S. 185, 189 (1990).
        \976\Sec. 2, 72 Stat. 415 (1958), amending 28 U.S.C. 
Sec. 1332(c), provided that a corporation is to be deemed a citizen of 
any State in which it has been incorporated and of the State in which it 
has its principal place of business. 78 Stat. 445 (1964), amending 28 
U.S.C. Sec. 1332(c), was enacted to correct the problem revealed by 
Lumbermen's Mutual Casualty Co. v. Elbert, 348 U.S. 48 (1954).
        \977\See United Steelworkers v. R.H. Bouligny, 382 U.S. 145, 148 
        \978\In Terral v. Burke Construction Co., 257 U.S. 529 (1922), 
the Court resolved two conflicting lines of cases and voided a state 
statute which required the cancellation of the license of a foreign 
corporation to do business in the State upon notice that the corporation 
had removed a case to a federal court.

        Unincorporated associations, such as partnerships, joint stock 
companies, labor unions, governing boards of institutions, and the like, 
do not enjoy the same privilege as a corporation; the actual

[[Page 766]]
citizenship of each of its members must be considered in determining 
whether diversity exists.\979\

        \979\Great Southern Fire Proof Hotel Co. v. Jones, 177 U.S. 449 
(1900); Chapman v. Barney, 129 U.S. 677 (1889); Thomas v. Board of 
Trustees, 195 U.S. 207 (1904); United Steelworkers v. R.H. Bouligny, 382 
U.S. 145 (1965); Carden v. Arkoma Associates, 494 U.S. 185 (1990). But 
compare Navarro Savings Assn. v. Lee, 446 U.S. 458 (1980), distinguished 
in Carden, supra, 195-197.

        Manufactured Diversity.--One who because of diversity of 
citizenship can choose whether to sue in state or federal court will 
properly consider where the advantages and disadvantages balance; one 
who perceives the balance clearly favoring the federal forum where no 
diversity exists will no doubt often attempt to create diversity. In the 
Judiciary Act of 1789, Congress exempted from diversity jurisdiction 
suits on choses of action in favor of an assignee unless the suit could 
have been brought in federal court if no assignment had been made.\980\ 
One could create diversity by a bona fide change of domicile even with 
the sole motive of creating domicile.\981\ Similarly, one could create 
diversity, or defeat it, by choosing a personal representative of the 
requisite citizenship.\982\ By far, the greatest number of attempts to 
manufacture or create diversity has concerned corporations. A 
corporation cannot get into federal court by transferring its claim to a 
subsidiary incorporated in another State,\983\ and for a time the 
Supreme Court tended to look askance at collusory incorporations and the 
creation of dummy corporations for purposes of creating diversity.\984\ 
But in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & 
Transfer Co.,\985\ it became highly important to the plaintiff company 
to bring its suit in federal court rather than in a state court. Thus, 
Black & White, a Kentucky corporation, dissolved itself and obtained a 
charter as a Tennessee corporation; the only change made was the State 
of incorporation, the name, officers, shareholders, and location of the 
business remaining the same. A majority of the Court, over a strong 
dissent by Justice Holmes,\986\ saw no collusion

[[Page 767]]
and upheld diversity, meaning that the company won whereas it would have 
lost had it sued in the state court. Black & White Taxicab probably more 
than anything led to a reexamination of the decision on the choice of 
law to be applied in diversity litigation.

        \980\Sec. 11, 1 Stat. 78, sustained in Turner v. Bank of North 
America, 4 Dall, (4 U.S.) 8 (1799), and Sheldon v. Sill, 8 How, (49 
U.S.) 441 (1850). The present statute, 28 U.S.C. Sec. 1359, provides 
that no jurisdiction exists in a civil action ``in which any party, by 
assignment or otherwise, has been improperly or collusively made or 
joined to invoke the jurisdiction of such court.'' See Kramer v. 
Carribean Mills, 394 U.S. 823 (1969).
        \981\Williamson v. Osenton, 232 U.S. 619 (1914); Morris v. 
Gilmer, 129 U.S. 315 (1889).
        \982\Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183 (1931).
        \983\Miller & Lux v. East Side Canal & Irrigation Co., 211 U.S. 
293 (1908).
        \984\E.g., Southern Realty Co. v. Walker, 211 U.S. 603 (1909).
        \985\276 U.S. 518 (1928).
        \986\Id., 276 U.S., 532 (joined by Justices Brandeis and Stone). 
Justice Holmes here presented his view that Swift v. Tyson, 16 Pet. (41 
U.S.) 1 (1842), had been wrongly decided, but he preferred not to 
overrule it, merely ``not allow it to spread . . . into new fields.'' 
Id. 535.

        The Law Applied in Diversity Cases.--By virtue of Sec. 34 of the 
Judiciary Act of 1789,\987\ state law expressed in constitutional and 
statutory form was regularly applied in federal courts in diversity 
actions to govern the disposition of such cases. But in Swift v. 
Tyson,\988\ Justice Story for the Court ruled that state court decisions 
were not laws within the meaning of Sec. 34 and though entitled to 
respect were not binding on federal judges, except with regard to 
matters of a ``local nature,'' such as statutes and interpretations 
thereof pertaining to real estate and other immovables, in contrast to 
questions of general commercial law as to which the answers were 
dependent not on ``the decisions of the local tribunals, but in the 
general principles and doctrines of commercial jurisprudence.''\989\ The 
course of decision over the period of almost one hundred years was 
toward an expansion of the areas in which federal judges were free to 
construct a federal common law and a concomitant contraction of the 
definition of ``local'' laws.\990\ Although

[[Page 768]]
dissatisfaction with Swift v. Tyson was almost always present, within 
and without the Court,\991\ it was the Court's decision in Black & White 
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,\992\ 
which brought disagreement to the strongest point and perhaps 
precipitated the overruling of Swift v. Tyson in Erie Railroad Co. v. 

        \987\The section provided that ``the laws of the several states, 
except where the constitution, treaties, or statutes of the United 
States shall otherwise require or provide, shall be regarded as rules of 
decision in trials at common law in the courts of the United States in 
cases where they apply.'' 1 Stat. 92. With only insubstantial changes, 
the section now appears as 28 U.S.C. Sec. 1652. For a concise review of 
the entire issue, see C. Wright, Handbook of the Law of Federal Courts 
(St. Paul; 4th ed. 1983), ch. 9.
        \988\16 Pet. (41 U.S.) 1 (1842). The issue in the case was 
whether a pre-existing debt was good consideration for an indorsement of 
a bill of exchange so that the endorsee would be a holder in due course.
        \989\Id., 19. The Justice concluded this portion of the opinion: 
``The law respecting negotiable instruments may be truly declared in the 
language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. 
R. 883, 887, to be in great measure, not the law of a single country 
only, but of the commercial world. Nun erit alia lex Romae, alia 
Athenis; alia munc, alia posthac, sed et apud omnes gentes, et omni 
tempore una eademque lex obtenebit.'' Ibid. The thought that the same 
law should prevail in Rome as in Athens was used by Justice Story in 
DeLovia v. Boit, 7 Fed. Cas. 418, 443 (No. 3776) (C.C.D. Mass. 1815). 
For a modern utilization, see United States v. Jefferson County Board of 
Education, 372 F. 2d 836, 861 (5th Cir. 1966); id., 380 F. 2d 385, 398 
(5th Cir. 1967) (dissenting opinion).
        \990\The expansions included: Lane v. Vick, 3 How. (44 U.S.) 464 
(1845) (wills); City of Chicago v. Robbins, 2 Bl. (67 U.S.) 418 (1862), 
and Baltimore & Ohio R. Co. v. Baugh 149 U.S. 368 (1893) (torts); Yates 
v. City of Milwaukee, 10 Wall. (77 U.S.) 497 (1870) (real estate titles 
and rights of riparian owners); Kuhn v. Fairmont Coal Co., 215 U.S. 349 
(1910) (mineral conveyances); Rowan v. Runnels, 5 How. (46 U.S.) 134 
(1847) (contracts); Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101 
(1893). It was strongly contended that uniformity, the goal of Justice 
Story's formulation, was not being achieved, in great part because state 
courts followed their own rules of decision even when prior federal 
decisions were contrary. Frankfurter, Distribution of Judicial Power 
Between Federal and State Courts, 13 Corn. L.Q. 499, 529 n. 150 (1928). 
Moreover, the Court held that while state court interpretations of state 
statutes or constitutions were to be followed, federal courts could 
ignore them if they conflicted with earlier federal constructions of the 
same statute or constitutional provision, Rowan v. Runnels, 5 How. (46 
U.S.) 134 (1847), or if they had been rendered after the case had been 
tried in federal court, Burgess v. Seligman, 107 U.S. 20 (1883), thus 
promoting lack of uniformity. See also Gelpcke v. City of Debuque, 1 
Wall. (68 U.S.) 175 (1865); Williamson v. Berry, 8 How. (49 U.S.) 495 
(1850); Pease v. Peck, 18 How. (59 U.S.) 595 (1856); Watson v. Tarpley, 
18 How. (59 U.S.) 517 (1856).
        \991\Extensions of the scope of Tyson frequently were rendered 
by a divided Court over the strong protests of dissenters. E.g., Gelpcke 
v. City of Debuque, 1 Wall. (68 U.S.) 175 (1865); Lane v. Vick, 3 How. 
(44 U.S.) 463 (1845); Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910). In 
Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401-404 (1893), Justice 
Field dissented in an opinion in which he expressed the view that 
Supreme Court disregarding of state court decisions was 
unconstitutional, a view endorsed by Justice Holmes in Black & White 
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 
U.S. 518, 533 (1928) (dissenting opinion), and adopted by the Court in 
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Numerous proposals 
were introduced in Congress to change the rule.
        \992\276 U.S. 518 (1928). B. & W. had contracted with a railroad 
to provide exclusive taxi service at its station. B. & Y. began 
operating taxis at the same station and B. & W. wanted to enjoin the 
operation, but it was a settled rule by judicial decision in Kentucky 
courts that such exclusive contracts were contrary to public policy and 
were unenforceable in court. Therefore, B. & W. dissolved itself in 
Kentucky and reincorporated in Tennessee, solely in order to create 
diversity of citizenship and enable itself to sue in federal court. It 
was successful and the Supreme Court ruled that diversity was present 
and that the injunction should issue. In Mutual Life Ins. Co. v. 
Johnson, 293 U.S. 335 (1934), the Court, in an opinion by Justice 
Cardozo, appeared to retreat somewhat from its extensions of Tyson, 
holding that state law should be applied, through a ``benign and prudent 
comity,'' in a case ``balanced with doubt,'' a concept first used by 
Justice Bradley in Burgess v. Seligman, 107 U.S. 20 (1883).
        \993\304 U.S. 64 (1938). Judge Friendly has written: ``Having 
served as the Justice's [Brandeis's] law clerk the year Black & White 
Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. came 
before the Court, I have little doubt he was waiting for an opportunity 
to give Swift v. Tyson the happy dispatch he thought it deserved.'' H. 
Friendly, Benchmarks (Chicago: 1967), 20.

        ``It is impossible to overstate the importance of the Erie 
decision. It announces no technical doctrine of procedure or 
jursidiction, but goes to the heart of the relations between the federal 
government and the states, and returns to the states a power that had 
for nearly a century been exercised by the federal government.''\994\ 
Erie was remarkable in a number of ways aside from the doctrine it 
announced. It reversed a 96-year-old precedent, which counsel had 
specifically not questioned, it reached a constitutional

[[Page 769]]
decision when a statutory interpretation was available though perhaps 
less desirable, and it marked the only time in United States 
constitutional history when the Court has held that it had undertaken an 
unconstitutional action.\995\

        \994\C. Wright, Handbook of the Law of Federal Courts (4th ed. 
1983), 355. See Judge Friendly's exposition, In Praise of Erie--And of 
the New Federal Common Law, in H. Friendly, Benchmarks (Chicago: 1967), 
        \995\Id., 304 U.S., 157-164, 171 n. 71.

        Tompkins was injured by defendant's train while he was walking 
along the tracks. He was a citizen of Pennsylvania, and the railroad was 
incorporated in New York. Had he sued in a Pennsylvania court, state 
decisional law was to the effect that inasmuch as he was a trespasser, 
the defendant owned him only a duty not to injure him through wanton or 
willful misconduct;\996\ the general federal law treated him as a 
licensee who could recover for negligence. Tompkins sued and recovered 
in federal court in New York and the railroad presented the issue to the 
Supreme Court as one covered by ``local'' law within the meaning of 
Swift v. Tyson. Justice Brandeis for himself and four other Justices, 
however, choose to overrule the early case.

        \996\This result was obtained in retrial in federal court on the 
basis of Pennsylvania law. Tompkins v. Erie Railroad Co., 98 F. 49 (3d 
Cir.), cert. den. 305 U.S. 637 (1938).

        First, it was argued that Tyson had failed to bring uniformity 
of decision about and that its application discriminated against 
citizens of a State by noncitizens. Justice Brandeis cited recent 
researches\997\ indicating that Sec. 34 of the 1789 Act included court 
decisions in the phrase ``laws of the several States.'' ``If only a 
question of statutory construction were involved we should not be 
prepared to abandon a doctrine so widely applied throughout nearly a 
century. But the unconstitutionality of the course pursued has now been 
made clear, and compels us to do so.''\998\ For a number of reasons, it 
would not have been wise to have overruled Tyson on the basis of 
arguable new discoveries.\999\ Second, then, the decision

[[Page 770]]
turned on the lack of power vested in Congress to have prescribed rules 
for federal courts in state cases. ``There is no federal general common 
law. Congress has no power to declare substantive rules of common law 
applicable in a State whether they be local in their nature or 
`general,' be they commercial law or a part of the law of torts. No 
clause in the Constitution purports to confer such a power upon the 
federal courts.''\1000\ But having said this, Justice Brandeis made it 
clear that the unconstitutional assumption of power had been made not by 
Congress but by the Court itself. ``[W]e do not hold unconstitutional 
Sec. 34 of the Federal Judiciary Act of 1789 or any other Act of 
Congress. We merely declare that in applying the doctrine this Court and 
the lower courts have invaded rights which in our opinion are reserved 
by the Constitution to the several States.''\1001\

        \997\Erie Railroad Co. v. Tompkins, 304 U.S. 64, 72-73 (1938), 
citing Warren, New Light on the History of the Federal Judiciary Act of 
1789, 37 Harv. L. Rev. 49 84-88 (1923). See C. Wright, Handbook of the 
Law of Federal Courts (4th ed. 1983), 353.
        \998\Id., 304 U.S., 77-78 (footnote citations omitted).
        \999\Congress had re-enacted Sec. 34 as Sec. 721 of the Revised 
Statutes, citing Swift v. Tyson in its annotation, thus presumably 
accepting the gloss placed on the words by that ruling. But note that 
Justice Brandeis did not think even the re-enacted statute was 
unconstitutional. Infra, text at n. 1001. See H. Friendly, Benchmarks 
(Chicago: 1967), 161-163. Perhaps a more compelling reason of policy was 
that stated by Justice Frankfurter rejecting for the Court a claim that 
the general grant of federal question jurisdiction to the federal courts 
in 1875 made maritime suits cognizable on the law side of the federal 
courts. ``Petitioner now asks us to hold that no student of the 
jurisdiction of the federal courts or of admiralty, no judge, and none 
of the learned and alert members of the admiralty bar were able, for 
seventy-five years, to discern the drastic change now asserted to have 
been contrived in admiralty jurisdiction by the Act of 1875. In light of 
such impressive testimony from the past the claim of a sudden discovery 
of a hidden latent meaning in an old technical phrase is surely suspect.
        ``The history of archeology is replete with the unearthing of 
riches buried for centuries. Our legal history does not, however, offer 
a single archeological discovery of new, revolutionary meaning in 
reading an old judiciary enactment. [Here, the Justice footnotes: `For 
reasons that would take us too far afield to discuss, Erie R. Co. v. 
Tompkins, 304 U.S. 64, is no exception.'] The presumption is powerful 
that such a far-reaching, dislocating construction as petitioner would 
now have us find in the Act of 1875 was not uncovered by judges, lawyers 
or scholars for seventy-five years because it is not there.'' Romero v. 
International Terminal Operating Co., 358 U.S. 354, 370-371 (1959).
        \1000\Id., 304 U.S., 78. Justice Brandeis does not argue the 
constitutional issue and does not cite either provisions of the 
Constitution or precedent beyond the views of Justices Holmes and Field. 
Id., 78-79. Justice Reed thought that Article III and the necessary and 
proper clause might contain authority. Id., 91-92 (Justice Reed 
concurring in the result). For a formulation of the constitutional 
argument in favor of the Brandeis position, see H. Friendly, Benchmarks 
(Chicago: 1967), 167-171. See also Bernhardt v. Polygraphic Co. of 
America, 350 U.S. 198, 202, 208 (1956); Hanna v. Plumer, 380 U.S. 460, 
471-472 (1965).
        \1001\Id., 304 U.S., 79-80.

        Third, the rule of Erie replacing Tyson is that ``[e]xcept in 
matters governed by the Federal Constitution or by Acts of Congress, the 
law to be applied in any case is the law of the State. Whether the law 
of the State shall be declared by its Legislature in a statute or by its 
highest court in a decision is not a matter of federal concern.''\1002\

        \1002\Id., 78. Erie applies in equity as well as in law. Ruhlin 
v. New York Life Ins. Co., 304 U.S. 202 (1938).

        Since 1938, the effect of Erie has first increased and then 
diminished, as the nature of the problems presented changed. Thus, the 
Court at first indicated that not only the decision of the highest court 
of a State were binding on a federal court in diversity but as well 
intermediate appellate courts\1003\ and courts of first in

[[Page 771]]
stance,\1004\ even where the decisions bound no other state judge except 
as they were persuasive on their merits. It has now retreated from this 
position to the extent that federal judges are to give careful 
consideration to lower state court decisions and to old, perhaps 
outmoded decisions, but they must find for themselves the state law 
where the State's highest court has not spoken definitively and within a 
period which would raise no questions about the continued viability of 
the decision.\1005\ In the event of a state supreme court reversal of an 
earlier decision, the federal courts are, of course, bound by the later 
decision, and a judgment of a federal district court, correct when 
rendered, must be reversed on appeal if the State's highest court in the 
meantime has changed the applicable law.\1006\ In diversity cases which 
present conflicts of law problems, the Court has reiterated that the 
district court is to apply the law of the State in which it sits, so 
that in a case in State A in which the law of State B is applicable, 
perhaps because a contract was made there or a tort was committed there, 
the federal court is to apply State A's conception of State B's 

        \1003\West v. American Tel. & Tel. Co., 311 U.S. 223 (1940); Six 
Companies of California v. Joint Highway District, 311 U.S. 180 (1940); 
Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940).
        \1004\Fidelity Union Trust Co., v. Field, 311 U.S. 169 (1940).
        \1005\King v. Order of Commercial Travelers of America, 333 U.S. 
153 (1948); Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 205 
(1956) (1910 decision must be followed in absence of confusion in state 
decisions since, ``no developing line of authorities that cast a shadow 
over established ones, no dicta, doubts or ambiguities . . . , no 
legislative development that promises to undermine the judicial rule''). 
See also Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967).
        \1006\Vanderbark v. Owens-Illinois Glass Co., 311 U.S. 538 
(1941); Huddleston v. Dwyer, 322 U.S. 232 (1944); Nolan v. Transocean 
Air Lines, 365 U.S. 293 (1961).
        \1007\Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 
(1941); Griffin v. McCoach, 313 U.S. 498 (1941); Wells v. Simonds 
Abrasive Co., 345 U.S. 514 (1953); Nolan v. Transocean Air Lines, 365 
U.S. 293 (1961).

        The greatest difficulty in applying the Erie doctrine has been 
in cases in which issues of procedure were important.\1008\ The process 
was initiated in 1945 when the Court held that a state statute of 
limitations, which would have barred suit in state court, would bar it 
in federal court, although as a matter of federal law the case still 
could have been brought in federal court.\1009\ The Court regarded the 
substance-procedure distinction as immaterial. ``[S]ince a federal court 
adjudicating a state-created right solely because of

[[Page 772]]
the diversity of citizenship of the parties is for that purpose, in 
effect, only another court of the State, it cannot afford recovery if 
the right to recover is made unavailable by the State nor can it 
substantially affect the enforcement of the right as given by the 
State.''\1010\ The standard to be applied was compelled by the 
``intent'' of the Erie decision, which ``was to insure that, in all 
cases where a federal court is exercising jurisdication solely because 
of the diversity of citizenship of the parties, the outcome of the 
litigation in the federal court should be substantially the same, so far 
as legal rules determine the outcome of a litigation, as it would be if 
tried in a State court.''\1011\ The Court's application of this standard 
created substantial doubt that the Federal Rules of Civil Procedure had 
any validity in diversity cases.\1012\

        \1008\Interestingly enough, 1938 marked what seemed to be a 
switching of positions vis-a-vis federal and state courts of substantive 
law and procedural law. Under Tyson, federal courts in diversity actions 
were free to formulate a federal common law, while they were required by 
the Conformity Act, Sec. 5, 17 Stat. 196 (1872), to conform their 
procedure to that of the State in which the court sat. Erie then ruled 
that state substantive law was to control in federal court diversity 
actions, while by implication matters of procedure in federal court were 
subject to congressional governance. Congress authorized the Court to 
promulgate rules of civil procedure, 48 Stat. 1064 (1934), which it did 
in 1938, a few months after Erie was decided. 302 U.S. 783.
        \1009\Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
        \1010\Id., 108-109.
        \1011\Id., 109.
        \1012\Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 
(1949) (state rule making unsuccessful plaintiffs liable for all 
expenses and requiring security for such expenses as a condition of 
proceeding applicable in federal court); Woods v. Interstate Realty Co., 
337 U.S. 535 (1949) (state statute barring foreign corporation not 
qualified to do business in State applicable in federal court); Ragan v. 
Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949) (state rule 
determinative when an action is begun for purposes of statute of 
limitations applicable in federal court although a Federal Rule of Civil 
Procedure states a different rule).

        But in two later cases, the Court contracted the application of 
Erie in matters governed by the Federal Rules. Thus, in the earlier 
case, the Court said that ``outcome'' was no longer the sole determinant 
and countervailing considerations expressed in federal policy on the 
conduct of federal trials should be considered; a state rule making it a 
question for the judge rather than a jury of a particular defense in a 
tort action had to yield to a federal policy enunciated through the 
Seventh Amendment of favoring juries.\1013\ The latter ruling simplified 
the matter greatly. Erie is not to be the proper test when the question 
is the application of one of the Rules of Civil Procedure; if the rule 
is valid when measured against the Enabling Act and the Constitution, it 
is to be applied regardless of state law to the contrary.\1014\

        \1013\Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 
525 (1958).
        \1014\Hanna v. Plumer, 380 U.S. 460 (1965).

        Although it seems clear that Erie applies in nondiversity cases 
in which the source of the right sued upon is state law,\1015\ it is 
equally clear that Erie is not applicable always in diversity cases 
whether the nature of the issue be substantive or procedural. Thus,

[[Page 773]]
it may be that there is an overriding federal interest which compels 
national uniformity of rules, such as a case in which the issue is the 
appropriate rule for determining the liability of a bank which had 
guaranteed a forged federal check,\1016\ in which the issue is the 
appropriate rule for determining whether a tortfeasor is liable to the 
United States for hospitalization of a soldier and loss of his 
services,\1017\ and in which the issue is the appropriate rule for 
determining the validity of a defense raised by a federal officer sued 
for having libeled one in the course of his official duties.\1018\ In 
such cases, when the issue is found to be controlled by federal law, 
common or otherwise, the result is binding on state courts as well as on 
federal.\1019\ Despite, then, Justice Brandeis' assurance that there is 
no ``federal general common law,'' there is a common law existing and 
developing in the federal courts, even in diversity cases, which will 
sometimes control decision.\1020\

        \1015\Maternally Yours v. Your Maternity Shop, 234 F. 2d 538, 
540 n. 1 (2d Cir. 1956). The contrary view was implied in Levinson v. 
Deupree, 345 U.S. 648, 651 (1953), and by Justice Jackson in D'Oench, 
Duhme & Co. v. FDIC, 315 U.S. 447, 466-467, 471-472 (1942) (concurring 
opinion). See Wichita Royalty Co. v. City National Bank, 306 U.S. 103 
        \1016\Clearfield Trust Co. v. United States, 318 U.S. 363 
(1943). See also National Metropolitan Bank v. United States, 323 U.S. 
454 (1945); D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942); United 
States v. Standard Rice Co., 323 U.S. 106 (1944); United States v. Acri, 
348 U.S. 211 (1955); Ivanhoe Irrigation District v. McCracken, 357 U.S. 
275 (1958); Bank of America National Trust & Savings Assn. v. Parnell, 
352 U.S. 29 (1956). But see United States v. Yazell, 382 U.S. 341 
        \1017\United States v. Standard Oil Co., 332 U.S. 301 (1947). 
Federal law applies in maritime tort cases brought on the ``law side'' 
of the federal courts in diversity cases. Pope & Talbot v. Hawn, 346 
U.S. 406 (1953).
        \1018\Howard v. Lyons, 360 U.S. 593 (1959). Matters concerned 
with our foreign relations also are governed by federal law in 
diversity. Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964). 
Federal common law also governs a government contractor defense in 
certain cases. Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
        \1019\Free v. Bland, 369 U.S. 663 (1962); Yiatchos v. Yiatchos, 
376 U.S. 306 (1964).
        \1020\The quoted Brandeis phrase is in Erie Railroad Co. v. 
Tompkins 304 U.S. 64, 78 (1938). On the same day Erie was decided, the 
Court, in an opinion by Justice Brandeis, held that the issue of 
apportionment of the waters of an interstate stream between two States 
``is a question of `federal common law.''' Hinderlider v. La Plata River 
& Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938). On the matter, see 
Illinois v. City of Milwaukee, 406 U.S. 91 (1972).
      Controversies Between Citizens of the Same State Claiming Land 
        Under Grants of Different States

        The genesis of this clause was in the report of the Committee of 
Detail which vested the power to resolve such land disputes in the 
Senate,\1021\ but this proposal was defeated in the Convention,\1022\ 
which then added this clause to the jurisdiction of the federal 
judiciary without reported debate.\1023\ The motivation for this clause 
was the existence of boundary disputes affecting ten States at the time 
the Convention met. With the adoption of the North

[[Page 774]]
west Ordinance of 1787, the ultimate settlement of the boundary 
disputes, and the passing of land grants by the States, this clause, 
never productive of many cases, became obsolete.\1024\

        \1021\2 M. Farrand, op. cit., n. 1, 162, 171, 184.
        \1022\Id., 400-401.
        \1023\Id., 431.
        \1024\See Pawlet v. Clark, 9 Cr. (13 U.S.) 292 (1815). Cf. City 
of Trenton v. New Jersey, 262 U.S. 182 (1923).
      Controversies Between a State, or the Citizens Thereof, and 
        Foreign States, Citizens, or Subjects

        The scope of this jurisdiction has been limited both by judicial 
decisions and the Eleventh Amendment. By judicial application of the law 
of nations, a foreign state is immune from suit in the federal courts 
without its consent,\1025\ an immunity which extends to suits brought by 
States of the American Union.\1026\ Conversely, the Eleventh Amendment 
has been construed to bar suits by foreign states against a State of the 
United States.\1027\ Consequently, the jurisdiction conferred by this 
clause comprehends only suits brought by a State against citizens or 
subjects of foreign states, by foreign states against American citizens, 
citizens of a State against the citizens or subjects of a foreign state, 
and by aliens against citizens of a State.\1028\

        \1025\The Schooner Exchange v. McFaddon, 7 Cr. (11 U.S.) 116 
(1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania 
Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. 
United States, 304 U.S. 126, 134 (1938).
        \1026\Principality of Monaco v. Mississippi, 292 U.S. 313, 330 
        \1028\But in the absence of a federal question, there is no 
basis for jurisdiction between the subjects of a foreign State. Romero 
v. International Terminal Operating Co., 358 U.S. 354 (1959). The 
Foreign Sovereign Immunities Act of 1976, P.L. 94-538, 90 Stat. 2891, 
amending various sections of title 28 U.S.C., comprehensively provided 
jurisdictional bases for suits by and against foreign states and appears 
as well to comprehend suits by an alien against a foreign state which 
would be beyond the constitutional grant. However, in the only case in 
which that matter has been an issue before it, the Court has construed 
the Act as creating a species of federal question jurisdiction. 
Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983).

        Suits by Foreign States.--The privilege of a recognized foreign 
state to sue in the courts of another state upon the principle of comity 
is recognized by both international law and American constitutional 
law.\1029\ To deny a sovereign this privilege ``would manifest a want of 
comity and friendly feeling.''\1030\ Although national sovereignty is 
continuous, a suit in behalf of a national sovereign can be maintained 
in the courts of the United States only by a government which has been 
recognized by the political branches of our own government as the 
authorized government of

[[Page 775]]
the foreign state.\1031\ As the responsible agency for the conduct of 
foreign affairs, the State Department is the normal means of suggesting 
to the courts that a sovereign be granted immunity from a particular 
suit.\1032\ Once a foreign government avails itself of the privilege of 
suing in the courts of the United States, it subjects itself to the 
procedure and rules of decision governing those courts and accepts 
whatever liabilities the court may decide to be a reasonable incident of 
bringing the suit.\1033\ The rule that a foreign nation instituting a 
suit in a federal district court cannot invoke sovereign immunity as a 
defense to a counterclaim growing out of the same transaction has been 
extended to deny a claim of immunity as a defense to a counterclaim 
extrinsic to the subject matter of the suit but limited to the amount of 
the sovereign's claim.\1034\ Moreover, certain of the benefits extending 
to a domestic sovereign do not extend to a foreign sovereign suing in 
the courts of the United States. A foreign state does not receive the 
benefit of the rule which exempts the United States and its member 
States from the operation of the statute of limitations, because those 
considerations of public policy back of the rule are regarded as absent 
in the case of the foreign sovereign.\1035\

        \1029\The Sapphire, 11 Wall. (78 U.S.) 164, 167 (1871).
        \1030\Ibid. This case also held that a change in the person of 
the sovereign does not affect the continuity or rights of national 
sovereignty, including the right to bring suit or to continue one that 
has been brought.
        \1031\Guaranty Trust Co. v. United States, 304 U.S. 126, 137 
(1938), citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter 
of Lehigh Valley Railroad Company, 265 U.S. 573 (1924). Whether a 
government is to be regarded as the legal representative of a foreign 
state is, of course, a political question.
        \1032\Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing 
Compania Espanola v. The Navemar, 303 U.S. 68 (1938), which held that 
where the Executive Department neither recognizes nor disallows the 
claim of immunity, the court is free to examine that question for 
itself. Under the latter circumstances, however, a claim that a foreign 
vessel is a public ship and immune from suit must be substantiated to 
the satisfaction of the federal court.
        \1033\Guaranty Trust Co. v. United States, 304 U.S. 126, 134 
(1938). Among other benefits which the Court cited as not extending to 
foreign states as litigant included exemption from costs and from giving 
discovery. Decisions were also cited to the effect that a sovereign 
plaintiff ``should so far as the thing can be done, be put in the same 
position as a body corporate.''
        \1034\National Bank v. Republic of China, 348 U.S. 356, 361 
(1955), citing 26 Dept. State Bull. 984 (1952), wherein the Department 
``has pronounced broadly against recognizing sovereign immunity for the 
commercial operations of a foreign government.''
        \1035\Guaranty Trust Co. v. United States, 304 U.S. 126, 135, 
137 (1938), citing precedents to the effect that a sovereign plaintiff 
``should be put in the same position as a body corporate.''

        Indian Tribes.--Within the terms of Article III, an Indian tribe 
is not a foreign state and hence cannot sue in the courts of the United 
States. This rule was applied in the case of Cherokee Nation v. 
Georgia,\1036\ where Chief Justice Marshall conceded that the Cherokee 
Nation was a state, but not a foreign state, being a part of the United 
States and dependent upon it. Other passages

[[Page 776]]
of the opinion specify the elements essential of a foreign state for 
purposes of jurisdiction, such as sovereignty and independence.

        \1036\5 Pet. (30 U.S.) 1, 16-20 (1831).

        Narrow Construction of the Jurisdiction.--As in cases of 
diversity jurisdiction, suits brought to the federal courts under this 
category must clearly state in the record the nature of the parties. As 
early as 1809, the Supreme Court ruled that a federal court could not 
take jurisdiction of a cause where the defendants were described in the 
record as ``late of the district of Maryland,'' but were not designated 
as citizens of Maryland, and plaintiffs were described as aliens and 
subjects of the United Kingdom.\1037\ The meticulous care manifested in 
this case appeared twenty years later when the Court narrowly construed 
Sec. 11 of the Judiciary Act of 1789, vesting the federal courts with 
jurisdiction when an alien was a party, in order to keep it within the 
limits of this clause. The judicial power was further held not to extend 
to private suits in which an alien is a party, unless a citizen is the 
adverse party.\1038\ This interpretation was extended in 1870 by a 
holding that if there is more than one plaintiff or defendant, each 
plaintiff or defendant must be competent to sue or liable to suit.\1039\ 
These rules, however, do not preclude a suit between citizens of the 
same State if the plaintiffs are merely nominal parties and are suing on 
behalf of an alien.\1040\

        \1037\Hodgson & Thompson v. Bowerbank, 5 Cr. (9 U.S.) 303 
        \1038\Jackson v. Twentyman, 2 Pet. (27 U.S.) 136 (1829); Romero 
v. International Terminal Operating Co., 358 U.S. 354 (1959).
        \1039\Coal Co. v. Blatchford, 11 Wall. (78 U.S.) 172 (1871). 
See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held 
that a lower federal court had jurisdiction over a proceeding to impeach 
its former decree, although the parties were new and were both aliens.
        \1040\Browne v. Strode, 5 Cr. (9 U.S.) 303 (1809).

                               ARTICLE III

                           JUDICIAL DEPARTMENT

               Section 2. Judicial Power and Jurisdiction

  Clause 2. In all Cases affecting Ambassadors, other public Ministers 
and Consuls, and those in which a State shall be a Party, the Supreme 
Court shall have original Jurisdiction. In all other Cases before 
mentioned, the Supreme Court shall have appellate Jurisdiction, both as 
to Law and Fact, with such Exceptions, and under such Regulations as the 
Congress shall make.


        From the beginning, the Supreme Court has assumed that its 
original jurisdiction flows directly from the Constitution and is

[[Page 777]]
therefore self-executing without further action by Congress.\1041\ In 
Chisholm v. Georgia,\1042\ the Court entertained an action of assumpsit 
against Georgia by a citizen of another State. Congress in Sec. 3 of the 
Judiciary Act of 1789\1043\ purported to invest the Court with original 
jurisdiction in suits between a State and citizens of another State, but 
it did not authorize actions of assumpsit in such cases nor did it 
prescribe forms of process for the exercise of original jurisdiction. 
Over the dissent of Justice Iredell, the Court, in opinions by Chief 
Justice Jay and Justices Blair, Wilson, and Cushing, sustained its 
jurisdiction and its power to provide forms of process and rules of 
procedure in the absence of congressional enactments. The backlash of 
state sovereignty sentiment resulted in the proposal and ratification of 
the Eleventh Amendment, which did not, however, affect the direct flow 
of original jurisdiction to the Court, although those cases to which 
States were parties were now limited to States as party plaintiffs, to 
two or more States disputing, or to United States suits against 

        \1041\But in Sec. 13 of the Judiciary Act of 1789, 1 Stat. 80, 
Congress did so purport to convey the jurisdiction and the statutory 
conveyance exists today. 28 U.S.C. Sec. 1251. It does not, however, 
exhaust the listing of the Constitution.
        \1042\Dall. (2 U.S.) 419 (1793). In an earlier case, the point 
of jurisdiction was not raised. Georgia v. Brailsford, 2 Dall. (2 U.S.) 
402 (1792).
        \1043\1 Stat. 80.
        \1044\On the Eleventh Amendment, see infra. On suits involving 
States as parties, see supra.

        By 1861, Chief Justice Taney could confidently enunciate, after 
review of the precedents, that in all cases where original jusrisdiction 
is given by the Constitution, the Supreme Court has authority ``to 
exercise it without further act of Congress to regulate its powers or 
confer jurisdiction, and that the court may regulate and mould the 
process it uses in such manner as in its judgment will best promote the 
purposes of justice.''\1045\

        \1045\Kentucky v. Dennison, 24 How. (65 U.S.) 66, 98 (1861).

        Although Chief Justice Marshall apparently assumed the Court had 
exclusive jurisdiction of cases within its original jurisdiction,\1046\ 
Congress from 1789 on gave the inferior federal courts concurrent 
jurisdiction in some classes of such cases.\1047\ Sustained in the early 
years on circuit,\1048\ this concurrent jurisdiction was finally 
approved by the Court itself.\1049\ The Court has also relied on the 
first Congress' interpretation of the meaning of Article III

[[Page 778]]
in declining original jurisdiction of an action by a State to enforce a 
judgment for a precuniary penalty awarded by one of its own 
courts.\1050\ Noting that Sec. 13 of the Judiciary Act had referred to 
``controversies of a civil nature,'' Justice Gray declared that it ``was 
passed by the first Congress assembled under the Constitution, many of 
whose members had taken part in framing that instrument, and is 
contemporaneous and weighty evidence of its true meaning.''\1051\

        \1046\Marbury v. Madison, 1 Cr. (5 U.S.) 137, 174 (1803).
        \1047\In Sec. 3 of the 1789 Act. The present division is in 28 
U.S.C. Sec. 1251.
        \1048\United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C.Pa. 
        \1049\Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657 
(1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. 
Johnson, 111 U.S. 449 (1884). Such suits could be brought and maintained 
in state courts as well, the parties willing. Plaquemines Tropical Fruit 
Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Poporici v. Alger, 
280 U.S. 379 (1930).
        \1050\Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
        \1051\Id., 297. See also the dictum in Cohens v. Virginia, 6 
Wheat. (19 U.S.) 264, 398-399 (1821); Chisholm v. Georgia, 2 Dall. (2 
U.S.) 419, 431-432 (1793).

        However, another clause of Sec. 13 of the Judiciary Act of 1789 
was not accorded the same presumption by Chief Justice Marshall, who, 
interpreting it as giving the Court power to issue a writ of mandamus on 
an original proceeding, declared that as Congress could not restrict the 
original jurisdiction neither could it enlarge it and pronounced the 
clause void.\1052\ While the Chief Justice's interpretation of the 
meaning of the clause may be questioned, no one has questioned the 
constitutional principle thereby proclaimed. Although the rule deprives 
Congress of power to expand or contract the jurisdiction, it allows a 
considerable latitude of interpretation to the Court itself. In some 
cases, as in Missouri v. Holland,\1053\ the Court has manifested a 
tendency toward a liberal construction of its original jurisdiction, but 
the more usual view is that ``our original jurisdiction should be 
invoked sparingly.''\1054\ Original jurisdiction ``is limited and 
manifestly to be sparingly exercised, and should not be expanded by 
construction.''\1055\ Exercise of its original jurisdiction is not 
obligatory on the Court but discretionary, to be determined on a case-
by-case basis on grounds of practical necessity.\1056\ It is to be 
honored ``only in appropriate cases. And the

[[Page 779]]
question of what is appropriate concerns of course the seriousness and 
dignity of the claim; yet beyond that it necessarily involves the 
availability of another forum where there is jurisdiction over the named 
parties, where the issues tendered may be litigated, and where 
appropriate relief may be had. We incline to a sparing use of our 
original jurisdiction so that our increasing duties with the appellate 
docket will not suffer.''\1057\ But where claims are of sufficient 
``seriousness and dignity,'' in which resolution by the judiciary is of 
substantial concern, the Court will hear them.\1058\

        \1052\Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803). The Chief 
Justice declared that ``a negative or exclusive sense'' had to be given 
to the affirmative enunciation of the cases to which original 
jurisdiction extends. Id., 174. This exclusive interpretation has been 
since followed. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807); New Jersey 
v. New York, 5 Pet. (30 U.S.) 284 (1831); Ex parte Barry, 2 How, (43 
U.S.) 65 (1844); Ex parte Vallandigham, 1 Wall. (68 U.S.) 243, 252 
(1864); Ex parte Yerger, 8 Wall. (75 U.S.) 85, 98 (1869). In the curious 
case of Ex parte Levitt, 302 U.S. 633 (1937), the Court was asked to 
unseat Justice Black on the ground that his appointment violated Article 
I. Sec. 6, cl.2. Although it rejected petitioner's application, the 
Court did not point out that it was being asked to assume original 
jurisdiction in violation of Marbury v. Madison.
        \1053\252 U.S. 416 (1920). See also South Carolina v. 
Katzenbach, 383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 112 
        \1054\Utah v. United States, 394 U.S. 89, 95 (1968).
        \1055\California v. Southern Pacific Co., 157 U.S. 229, 261 
(1895). Indeed, the use of the word ``sparingly'' in this context is all 
but ubiquitous. E.g., Wyoming v. Oklahoma, 112 S.Ct. 789, 798-800 
(1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); United States 
v. Nevada, 412 U.S. 534, 538 (1973).
        \1056\Texas v. New Mexico, 462 U.S. 554, 570 (1983).
        \1057\Illinois v. City of Milwaukee, 406 U.S. 91, 93-94 (1972). 
In this case, and in Washington v. General Motors Corp., 406 U.S. 109 
(1972), and Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the 
Court declined to permit adjudication of environmental pollution cases 
manifestly within its original jurisdiction because the nature of the 
cases required the resolution of complex, novel, and technical factual 
questions not suitable for resolution at the Court's level as a matter 
of initial decision but which could be brought in the lower federal 
courts. Not all such cases, however, were barred. Vermont v. New York 
406 U.S. 186 (1972) (granting leave to file complaint). In other 
instances, notably involving ``political questions,'' cf. Massachusetts 
v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission 
for parties to file bills of complaint without hearing them on the issue 
or producing an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886 
(1970) (constitutionality of United States action in Indochina); 
Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of 
electoral college under one-man, one-vote rule).
        \1058\Wyoming v. Oklahoma, 112 S.Ct. 789, 798-799 (1982). The 
principles are the same whether the Court's jurisdiction is exclusive or 
concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West 
Virginia, 454 U.S. 1027 (1981); Arizona v. New Mexico, 425 U.S. 794 
                  Cl 2.--Power of Congress to Control the Federal Courts


      The Theory of Plenary Congressional Control

        Unlike its original jurisdiction, the appellate jurisdiction of 
the Supreme Court is subject to ``exceptions and regulations'' 
prescribed by Congress, and the jurisdiction of the inferior federal 
courts is subject to congressional prescription. Additionally, Congress 
has power to regulate modes and practices of proceeding on the part of 
the inferior federal courts. Whether there are limitations to the 
exercise of these congressional powers, and what the limitations may be, 
are matters that have vexed scholarly and judicial interpretation over 
the years, inasmuch as congressional displeasure with judicial decisions 
has sometimes led to successful efforts to ``curb'' the courts and more 
frequently to proposed but unsuccessful curbs.\1059\ Supreme Court 
holdings establish clearly the

[[Page 780]]
breadth of congressional power, and numerous dicta assert an even 
broader power, but that Congress may through the exercise of its powers 
vitiate and overturn constitutional decisions and restrain the exercise 
of constitutional rights is an assertion often made but not sustained by 
any decision of the Court.

        \1059\A classic but now dated study is Warren, Legislative and 
Judicial Attacks on the Supreme Court of the United States--A History of 
the Twenty-Fifth Section of the Judiciary Act, 47 Am. L. Rev. 1, 161 
(1913). The most comprehensive consideration of the constitutional issue 
is Hart, The Power of Congress to Limit the Jurisdiction of Federal 
Courts: An Exercise in Dialectic, 66 Harv, L. Rev. 1362 (1953), 
reprinted in Hart & Wechsler, op. cit., n.250, 393.

        Appellate Jurisdiction.--In Wiscart v. D'Auchy,\1060\ the issue 
was whether the statutory authorization for the Supreme Court to review 
on writ of error circuit court decisions in ``civil actions'' gave it 
power to review admiralty cases.\1061\ A majority of the Court decided 
that admiralty cases were ``civil actions'' and thus reviewable; in the 
course of decision, it was said that ``[i]f Congress had provided no 
rule to regulate our proceedings, we cannot exercise an appellate 
jurisdiction; and if the rule is provided, we cannot depart from 
it.''\1062\ Much the same thought was soon to be expressed by Chief 
Justice Marshall, although he seems to have felt that in the absence of 
congressional authorization, the Court's appellate jurisdiction would 
have been measured by the constitutional grant. ``Had the judicial act 
created the supreme court, without defining or limiting its 
jurisdiction, it must have been considered as possessing all the 
jurisdiction which the constitution assigns to it. The legislature would 
have exercised the power it possessed of creating a supreme court, as 
ordained by the constitution; and in omitting to exercise the right of 
excepting from its constitutional powers, would have necessarily left 
those powers undiminished.

        \1060\3 Dall. (3 U.S) 321 (1796).
        \1061\Judiciary Act of 1789, Sec. 22, 1 Stat. 84.
        \1062\Wiscart v. D'Auchy, 3 Dall. (3 U.S.) 321, 327 (1796). The 
dissent thought that admiralty cases were not ``civil actions'' and thus 
that there was no appellate review. Id., 326-327. See also Clarke v. 
Bazadone, 1 Cr. (5 U.S.) 212 (1803); Turner v. Bank of North America, 4 
Dall. (4 U.S.) 8 (1799).

        ``The appellate powers of this court are not given by the 
judicial act. They are given by the constitution. But they are limited 
and regulated by the judicial act, and by such other acts as have been 
passed on the subject.''\1063\ Later Justices viewed the matter 
differently than had Marshall. ``By the constitution of the United 
States,'' it was said in one opinion, ``the Supreme Court possesses no 
appellate power in any case, unless conferred upon it by act of 
Congress.''\1064\ In order for a case to come within its appellate 
jurisdiction, the Court has said, ``two things must concur: the Con

[[Page 781]]
stitution must give the capacity to take it, and an act of Congress must 
supply the requisite authority.'' Moreover, ``it is for Congress to 
determine how far, within the limits of the capacity of this court to 
take, appellate jurisdiction shall be given, and when conferred, it can 
be exercised only to the extent and in the manner prescribed by law. In 
these respects it is wholly the creature of legislation.''\1065\

        \1063\Durousseau v. United States, 6 Cr. (10 U.S.) 307, 313-314 
(1810). ``Courts which are created by written law, and whose 
jurisdiction is defined by written law, cannot transcend that 
jurisdiction.'' Ex parte Bollman, 4 Cr. (4 U.S.) 75, 93 (1807) (Chief 
Justice Marshall). Marshall had earlier expressed his Durousseau 
thoughts in United States v. More, 3 Cr. (7 U.S.) 159 (1805).
        \1064\Barry v. Mercein, 5 How. (46 U.S.) 103, 119 (1847) (case 
held nonreviewable because minimum jurisdictional amount not alleged).
        \1065\Daniels v. Railroad Co., 3 Wall. (70 U.S.) 250, 254 (1865) 
(case held nonreviewable because certificate of division in circuit did 
not set forth questions in dispute as provided by statute.)

        This congressional power, conferred by the language of Article 
III, Sec. 2, cl. 2, which provides that all jurisdiction not original is 
to be appellate, ``with such Exceptions, and under such Regulations as 
the Congress shall make,'' has been utilized to forestall a decision 
which the congressional majority assumed would be adverse to its course 
of action. In Ex parte McCardle,\1066\ the Court accepted review on 
certiorari of a denial of a petition for a writ of habeas corpus by the 
circuit court; the petition was by a civilian convicted by a military 
commission of acts obstructing Reconstruction. Anticipating that the 
Court might void, or at least undermine, congressional reconstruction of 
the Confederate States, Congress enacted over the President's veto a 
provision repealing the act which authorized the appeal McCardle had 
taken.\1067\ Although the Court had already heard argument on the 
merits, it then dismissed for want of jurisdiction.\1068\ ``We are not 
at liberty to inquire into the motives of the legislature. We can only 
examine into its power under the Constitution; and the power to make 
exceptions to the appellate jurisdiction of this court is given by 
express words.

        \1066\6 Wall. (73 U.S.) 318 (1868). That Congress' apprehensions 
might have had a basis in fact, see C. Fairman, History of the Supreme 
Court of the United States: Vol. VI, Pt. I--Reconstruction and Reunion 
1864-88 (New York: 1971), 493-495. McCardle is fully reviewed in id., 
        \1067\By the Act of February 5, 1867, Sec. 1, 14 Stat. 386, 
Congress had authorized appeals to the Supreme Court from circuit court 
decisions denying habeas corpus. Previous to this statute, the Court's 
jurisdiction to review habeas corpus decisions, based in Sec. 14 of the 
Judiciary Act of 1789, 1 Stat. 81, was somewhat fuzzily conceived. 
Compare United States v. Hamilton, 3 Dall. (3 U.S.) 17 (1795), and Ex 
parte Burford, 3 Cr. (7 U.S.) 448 (1806), with Ex parte Bollman, 4 Cr. 
(8 U.S.) 75 (1807). The repealing statute was the Act of March 27, 1868, 
15 Stat. 44. The repealed act was reenacted March 3, 1885. 23 Stat. 437.
        \1068\Ex parte McCardle, 7 Wall. (74 U.S.) 506 (1869). In the 
course of the opinion, Chief Justice Chase speculated about the Court's 
power in the absence of any legislation in tones reminiscent of 
Marshall's comments. Id., 513.

        ``What, then, is the effect of the repealing act upon the case 
before us? We cannot doubt as to this. Without jurisdiction the court 
cannot proceed at all in any cause. Jurisdiction is power to declare the 
law, and when it ceases to exist, the only function remaining to the 
court is that of announcing the fact and dismissing the

[[Page 782]]
cause.''\1069\ Although McCardle grew out of the stresses of 
Reconstruction, the principle there applied has been similarly affirmed 
and applied in later cases.\1070\

        \1069\Id., 514.
        \1070\Thus, see Justice Frankfurter's remarks in National Mutual 
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1948) 
(dissenting): ``Congress need not give this Court any appellate power; 
it may withdraw appellate jurisdiction once conferred and it may do so 
even while a case is sub judice.'' In The Francis Wright, 105 U.S. 381, 
385-386 (1882), upholding Congress' power to confine Supreme Court 
review in admiralty cases to questions of law, the Court said: ``[W]hile 
the appellate power of this court under the Constitution extends to all 
cases within the judicial power of the United States, actual 
jurisdiction under the power is confined within such limits as Congress 
sees fit to prescribe. . . . What those powers shall be, and to what 
extent they shall be exercised, are, and always have been, proper 
subjects of legislative control. Authority to limit the jurisdiction 
necessarily carries with it authority to limit the use of the 
jurisdiction. Not only may whole classes of cases be kept out of the 
jurisdiction altogether, but particular classes of questions may be 
subjected to reexamination and review, while others are not.'' See also 
Luckenbuch S. S. Co. v. United States, 272 U.S. 533, 537 (1926); 
American Construction Co. v. Jacksonville, T. & K.W. RY., 148 U.S. 372, 
378 (1893); United States v. Bitty, 208 U.S. 393 (1908); United States 
v. Young, 94 U.S. 258 (1876). Numerous restrictions on the exercise of 
appellate jurisdiction have been upheld. E.g., Congress for a hundred 
years did not provide for a right of appeal to the Supreme Court in 
criminal cases, except upon a certification of division by the circuit 
court: at first appeal was provided in capital cases and then in others. 
F. Frankfurter & J. Landis, op. cit., n. 12, 79, 109-120. Other 
limitations noted heretofore include minimum jurisdictional amounts, 
restrictions of review to questions of law and to questions certified 
from the circuits, and the scope of review of state court decisions of 
federal constitutional questions. See Walker v. Taylor, 5 How. (46 U.S.) 
64 (1847). Though McCardle is the only case in which Congress 
successfully forestalled an expected decision by shutting off 
jurisdiction, other cases have been cut off while pending on appeal, 
either inadvertently, Insurance Co. v. Ritchie, 5 Wall. (72 U.S.) 541 
(1866), or intentionally, Railroad Co. v. Grant, 98 U.S. 398 (1878), by 
raising the requirements for jurisdiction without a reservation for 
pending cases. See also Bruner v. United States, 343 U.S. 112 (1952); 
District of Columbia v. Eslin, 183 U.S. 62 (1901).

        Jurisdiction of the Inferior Federal Courts.--The Framers, as we 
have seen,\1071\ divided with regard to the necessity of courts inferior 
to the Supreme Court, simply authorized Congress to create such courts, 
in which, then, judicial power ``shall be vested'' and to which nine 
classes of cases and controversies ``shall extend.''\1072\ While Justice 
Story deemed it imperative of Congress to create inferior federal courts 
and, when they had been created, to vest them with all the jurisdiction 
they were capable of receiving,\1073\ the First Congress acted upon a 
wholly different theory. Inferior courts were created, but jurisdiction 
generally over cases involving the Constitution, laws, and treaties of 
the United States was not given them, diversity jurisdiction was limited 
by a minimal jurisdictional

[[Page 783]]
amount requirement and by a prohibition on creation of diversity through 
assignments, equity jurisdiction was limited to those cases where a 
``plain, adequate, and complete remedy'' could not be had at law.\1074\ 
This care for detail in conferring jurisdiction upon the inferior 
federal courts bespoke a conviction by Members of Congress that it was 
within their power to confer or to withhold jurisdiction at their 
discretion. The cases have generally sustained this view.

        \1071\Supra, pp.597-598, 599-600.
        \1072\Article III, Sec. 1, 2.
        \1073\Martin v. Hunter's Lessee. 1 Wheat. (14 U.S.) 304, 374 
(1816). For an effort to reframe Justice Story's position in modern 
analytical terms, see the writings of Professors Amar and Clinton, 
supra, n.134; infra, n.1098.
        \1074\Judiciary Act of 1789, 1 Stat. 73. See Warren, New Light 
on the History of the Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923). 
A modern study of the first Judiciary Act that demonstrates the 
congressional belief in discretion to structure jurisdiction is Casto, 
The First Congress's Understanding of Its Authority over the Federal 
Courts' Jurisdiction, 26 B. C. L. Rev. 1101 (1985).

        Thus, in Turner v. Bank of North America,\1075\ the issue was 
the jurisdiction of the federal courts in a suit to recover on a 
promissory note between two citizens of the same State but in which the 
note had been assigned to a citizen of a second State so that suit could 
be brought in federal court under its diversity jurisdiction, a course 
of action prohibited by Sec. 11 of the Judiciary Act of 1789.\1076\ 
Counsel for the bank argued that the grant of judicial power by the 
Constitution was a direct grant of jurisdiction, provoking from Chief 
Justice Ellsworth a considered doubt\1077\ and from Justice Chase a firm 
rejection. ``The notion has frequently been entertained, that the 
federal courts derive their judicial power immediately from the 
constitution: but the political truth is, that the disposal of the 
judicial power (except in a few specified instances) belongs to 
Congress. If Congress has given the power to this Court, we possess it, 
not otherwise: and if Congress has not given the power to us, or to any 
other Court, it still remains at the legislative disposal. Besides, 
Congress is not bound, and it would, perhaps, be inexpedient, to enlarge 
the jurisdiction of the federal courts, to every subject, in every form, 
which the constitution might warrant.''\1078\ Applying Sec. 11, the 
Court held that the circuit court had lacked jurisdiction.

        \1075\4 Dall. (4 U.S.) 8 (1799).
        \1076\"``N]or shall any district or circuit court have 
cognizance of any suit to recover the contents of any promissory note or 
other chose in action in favour of an assignee, unless a suit might have 
been prosecuted in such court to recover the said contents if no 
assignment had been made, except in cases of foreign bills of 
exchange.'' 1 Stat. 79.
        \1077\Turner v. Bank of North America, 4 Dall. (4 U.S.) 8, 10 

        Chief Justice Marshall himself soon made similar 
assertions,\1079\ and the early decisions of the Court continued to be

[[Page 784]]
sprinkled with assumptions that the power of Congress to create inferior 
federal courts necessarily implied ``the power to limit jurisdiction of 
those Courts to particular objects.''\1080\ In Cary v. Curtis,\1081\ a 
statute making final the decision of the Secretary of the Treasury in 
certain tax disputes was challenged as an unconstitutional deprivation 
of the judicial power of the courts. The Court decided otherwise. 
``[T]he judicial power of the United States, although it has its origin 
in the Constitution, is (except in enumerated instances applicable 
exclusively to this court), dependent for its distribution and 
organization, and for the modes of its exercise, entirely upon the 
action of Congress, who possess the sole power of creating tribunals 
(inferior to the Supreme Court), for the exercise of the judicial power, 
and of investing them with jurisdiction either limited, concurrent, or 
exclusive, and of withholding jurisdiction from them in the exact 
degrees and character which to Congress may seem proper for the public 
good.''\1082\ Five years later, the validity of the assignee clause of 
the Judiciary Act of 1789\1083\ was placed in issue in Sheldon v. 
Sill,\1084\ in which diversity of citizenship had been created by 
assignment of a negotiable instrument. It was argued that inasmuch as 
the right of a citizen of any State to sue citizens of another flowed 
directly from Article III, Congress could not restrict that right. 
Unanimously, the Court rejected these contentions and held that because 
the Constitution did not create inferior federal courts but rather 
authorized Congress to create them, Congress was also empowered to 
define their jurisdiction and to withhold jurisdiction of any of the 
enumerated cases and controversies in Article III. The case and the 
principle has been cited and reaffirmed numerous times,\1085\ and has 
been quite recently applied.\1086\

        \1079\In Ex parte Bollman, 4 Cr. (8 U.S.) 75, 93 (1807), 
Marshall observed that ``courts which are created by written law, and 
whose jurisdiction is defined by written law, cannot transcend that 
        \1080\United States v. Hudson & Goodwin, 7 Cr. (11 U.S.) 32, 33 
(1812). Justice Johnson continued: ``All other Courts [beside the 
Supreme Court] created by the general Government possess no jurisdiction 
but what is given them by the power that creates them, and can be vested 
with none but what the power ceded to the general Government will 
authorize them to confer.'' See also Rhode Island v. Massachusetts, 12 
Pet. (37 U.S.) 657, 721-722 (1838).
        \1081\3 How. (44 U.S.) 236 (1845).
        \1082\Id., 244-245. Justices McLean and Story dissented, arguing 
that the right to construe the law in all matters of controversy is of 
the essence of judicial power, Id., 264.
        \1083\Supra, n.1076.
        \1084\8 How. (49 U.S.) 441 (1850).
        \1085\E.g., Kline v. Burke Construction Co., 260 U.S. 226, 233-
234 (1922); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); 
Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Kentucky v. 
Powers, 201 U.S. 1, 24 (1906); Stevenson v. Fain, 195 U.S. 165, 167 
(1904); Plaquemines Fruit Co. v. Henderson, 170 U.S. 511, 513-521 
(1898); The Mayor v. Cooper, 6 Wall, (73 U.S.) 247, 251-252 (1868).
        \1086\By the Voting Rights Act of 1965, Congress required 
covered States that wished to be relieved of coverage to bring actions 
to this effect in the District Court of the District of Columbia. In 
South Carolina v. Katzenbach, 383 U.S. 301, 331 (1966), Chief Justice 
Warren for the Court said: ``Despite South Carolina's argument to the 
contrary, Congress might appropriately limit litigation under this 
provision to a single court in the District of Columbia, pursuant to its 
constitutional power under Art. III, Sec. 1, to `ordain and establish' 
inferior federal tribunals.'' See also Palmore v. United States, 411 
U.S. 389, 400-402 (1973); Swain v. Pressley, 430 U.S. 372 (1977). And 
see Taylor v. St. Vincent's Hosp., 369 F. Supp. 948 (D. Mont. 1973), 
affd., 523 F.2d 75 (9th Cir.), cert. den., 424 U.S. 948 (1976).


[[Page 785]]

        Congressional Control Over Writs and Processes.--The Judiciary 
Act of 1789 contained numerous provisions relating to the times and 
places for holding court, even of the Supreme Court, to times of 
adjournment, appointment of officers, issuance of writs, citations for 
contempt, and many other matters which it might be supposed courts had 
some authority of their own to regulate.\1087\ The power to enjoin 
governmental and private action has frequently been curbed by Congress, 
especially as the action has involved the power of taxation at either 
the federal or state level.\1088\ Though the courts have variously 
interpreted these restrictions,\1089\ they have not denied the power to 
impose them.

        \1087\1 Stat. 73. For a comprehensive discussion with 
itemization, see Frankfurter & Landis, Power of Congress over Procedure 
in Criminal Contempts in `Inferior' Federal Courts--A Study in 
Separation of Powers, 37 Harv. L. Rev. 1010 (1924).
        \1088\The Act of March 2, 1867, 10, 14 Stat. 475, as amended, 
now 26 U.S.C. Sec. 7421 (federal taxes): Act of August 21, 1937, 50 
Stat. 738, 28 U.S.C. Sec. 1341 (state taxes). See also Act of May 14, 
1934, 48 Stat. 775, 28 U.S.C. Sec. 1342 (state rate-making).
        \1089\Compare Snyder v. Marks, 109 U.S. 189 (1883), with Dodge 
v. Brady, 240 U.S. 122 (1916); with Allen v. Regents, 304 U.S. 439 

        Reacting to judicial abuse of injunctions in labor 
disputes,\1090\ Congress in 1932 enacted the Norris-La Guardia Act which 
forbade the issuance of injunctions in labor disputes except through 
compliance with a lengthy hearing and fact-finding process which 
required the district judge to determine that only through the 
injunctive process could irremediable harm through illegal conduct be 
prevented.\1091\ The Court seemingly experienced no difficulty upholding 
the Act,\1092\ and it has liberally applied it through the years.\1093\

        \1090\F. Frankfurter & I. Greene, The Labor Injunction (New 
York: 1930).
        \1091\47 Stat. 70 (1932), 29 U.S.C. Sec. Sec. 101-115.
        \1092\In Lauf v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938), 
the Court simply declared: ``There can be no question of the power of 
Congress thus to define and limit the jurisdiction of the inferior 
courts of the United States.''
        \1093\E.g., New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 
552 (1938); Brotherhood of Railroad Trainmen v. Chicago River & Indiana 
R.R. Co., 353 U.S. 30 (1957); Boys Market v. Retail Clerks Union, 398 
U.S. 235 (1970).

        Congress' power to confer, withhold, and restrict jurisdiction 
is clearly revealed in the Emergency Price Control Act of 1942\1094\ and 
in the cases arising from it. Fearful that the price control pro

[[Page 786]]
gram might be nullified by injunctions, Congress provided for a special 
court in which persons could challenge the validity of price regulations 
issued by the Government with appeal from the Emergency Court of Appeals 
to the Supreme Court. The basic consitutionality of the Act was 
sustained in Lockerty v. Phillips.\1095\ In Yakus v. United 
States,\1096\ the Court upheld the provision of the Act which conferred 
exclusive jurisdiction on the special court to hear challenges to any 
order or regulation and foreclosed a plea of invalidity of any such 
regulation or order as a defense to a criminal proceeding under the Act 
in the regular district courts. Although Justice Rutledge protested in 
dissent that this provision conferred jurisdiction on district courts 
from which essential elements of the judicial power had been 
abstracted,\1097\ Chief Justice Stone for the Court declared that the 
provision presented no novel constitutional issue.

        \1094\56 Stat. 23 (1942).
        \1095\319 U.S. 182 (1943).
        \1096\321 U.S. 414 (1944).
        \1097\Id., 468. In United States v. Mendoza-Lopez, 481 U.S. 828 
(1987), purportedly in reliance on Yakus and other cases, the Court held 
that a collateral challenge must be permitted to the use of a 
deportation proceeding as an element of a criminal offense where 
effective judicial review of the deportation order had been denied. A 
statutory scheme similar to that in Yakus was before the Court in Adamo 
Wrecking Co. v. United States, 434 U.S. 275 (1978), but statutory 
construction enabled the Court to pass by constitutional issues that 
were not perceived to be insignificant. See esp. id., 289 (Justice 
Powell concurring). See also Harrison v. PPG Industries, 446 U.S. 578 
(1980), and id., 594 (Justice Powell concurring).
      The Theory Reconsidered

        Despite the breadth of the language of many of the previously 
cited cases, the actual holdings constitute something less than an 
affirmance of plenary congressional power to do anything desired by 
manipulation of jurisdiction and indeed the cases reflect certain 
limitations. Setting to one side various formulations, such as mandatory 
vesting of jurisdiction,\1098\ inherent judicial power,\1099\ and

[[Page 787]]
a theory, variously expressed, that the Supreme Court has ``essential 
constitutional functions'' of judicial review that Congress may not 
impair through jurisdictional limitations,\1100\ which lack textual and 
subsequent judicial support, one can see nonetheless the possibilities 
of restrictions on congressional power flowing from such basic 
constitutional underpinnings as express prohibitions, separation of 
powers, and the nature of the judicial function.\1101\ Whether because 
of the plethora of scholarly writing contesting the existence of 
unlimited congressional power or because of another reason, the Court of 
late has taken to noting constitutional reservations about legislative 
denials of jurisdiction for judicial review of constitutional issues and 
construing statutes so as not to deny jurisdiction.\1102\

        \1098\This was Justice Story's theory propounded in Martin v. 
Hunter's Lessee, 1 Wheat. (14 U.S.) 304, 329-336 (1816). Nevertheless, 
Story apparently did not believe that the constitutional bestowal of 
jurisdiction was self-executing and accepted the necessity of statutory 
conferral. White v. Fenner, 29 Fed. Cas. 1015 (No. 17,547) (C.C.D.R.I. 
1818) (Justice Story). In the present day, it has been argued that the 
presence in the jurisdictional-grant provisions of Article III of the 
word ``all'' before the subject-matter grants - federal question, 
admiralty. public ambassadors - mandates federal court review at some 
level of these cases, whereas congressional discretion exists with 
respect to party-defined jurisdiction - such as diversity. Amar, A Neo-
Federalist View of Article III: Separating the Two-Tiers of Federal 
Jurisdiction, 65 B. U. L. Rev. 205 (1985); Amar, The Two-Tiered 
Structure of the Judiciary Act of 1789, 138 U. Pa. L. Rev. 1499 (1990). 
Rebuttal articles include Meltzer, The History and Structure of Article 
III, id., 1569; Redish, Text, Structure, and Common Sense in the 
Interpretation of Article III, id., 1633; and a response by Amar, id., 
1651. An approach similar to Professor Amar's is Clinton, A Mandatory 
View of Federal Jurisdiction: A Guided Quest for the Original 
Understanding of Article III, 132 U. Pa. L. Rev. 741 (1984); Clinton, 
Early Implementation and Departures from the Constitutional Plan, 86 
Colum. L. Rev. 1515 (1986). Though perhaps persuasive as an original 
interpretation, both theories confront a large number of holdings and 
dicta as well as the understandings of the early Congresses revealed in 
their actions. See Casto, supra, n.1074.
        \1099\Justice Brewer in his opinion for the Court in United 
States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), came 
close to asserting an independent, inherent power of the federal courts, 
at least in equity. See also Paine Lumber Co. v. Neal, 244 U.S. 459, 
473, 475-476 (1917) (Justice Pitney dissenting). The acceptance by the 
Court of the limitations of the Norris-LaGuardia Act, among other 
decisions, contradicts these assertions.
        \1100\The theory was apparently first developed in Ratner, 
Congressional Power Over the Appellate Jurisdiction of the Supreme 
Court, 109 U. Pa. L. rev. 157 (1960). See also Ratner, Majoritarian 
Constraints on Judicial Review: Congressional Control of Supreme Court 
Jurisdiction, 27 Vill. L. Rev. 929 (1981-82). The theory was endorsed by 
Attorney General William French Smith as the view of the Department of 
Justice. 128 Cong. Rec. 9093-9097 (1982) (Letter to Hon. Strom 
        \1101\An extraordinary amount of writing has been addressed to 
the issue, only a fraction of which is touched on here. See Hart & 
Wechsler, op. cit., n.250, 362-424.
        \1102\Johnson v. Robison, 415 U.S. 361, 366-367 (1974); 
Weinberger v. Salfi, 422 U.S. 749, 762 (1975); Bowen v. Michigan Academy 
of Family Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe, 
486 U.S. 592, 603 (1988). In the last cited case, Justice Scalia 
attacked the reservation and argued for nearly complete congressional 
discretion. Id., 611-615 (concurring).

        Ex parte McCardle\1103\ marks the furtherest advance of 
congressional imposition of its will on the federal courts, and it is 
significant because the curb related to the availability of the writ of 
habeas corpus, which is marked out with special recognition by the 

        \1103\7 Wall (74 U.S.) 506 (1869). For the definitive analysis 
of the case, see Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 
Ariz. L. Rev. 229 (1973).
        \1104\Article I, Sec. 9, cl. 2.

        But how far did McCardle actually reach? In concluding its 
opinion, the Court carefully observed: ``Counsel seem to have supposed, 
if effect be given to the repealing act in question, that the whole 
appellate power of the court, in cases of habeas corpus, is de

[[Page 788]]
nied. But this is an error. The act of 1868 does not exempt from that 
jurisdiction any cases but appeals from Circuit Courts under the act of 
1867. It does not affect the jurisdiction which was previously 
exercised.''\1105\ A year later, in Ex parte Yerger,\1106\ the Court 
held that it did have authority under the Judiciary Act of 1789 to 
review on certiorari a denial by a circuit court of a petition for writ 
of habeas corpus on behalf of one held by the military in the South. It 
thus remains unclear whether the Court would have followed its language 
suggesting plenary congressional control if the effect had been to deny 
absolutely an appeal from a denial of a writ of habeas corpus.\1107\

        \1105\Ex parte McCardle, 7 Wall, (74 U.S.) 506, 515 (1869).
        \1106\8 Wall. (75 U.S.) 85 (1869). Yerger is fully reviewed in 
C. Fairman, History of the Supreme Court of the United States: Vol. VI, 
Pt. I--Reconstruction and Reunion, 1864-88 (New York: 1971), 558-618.
        \1107\Cf. Eisentrager v. Forrestal, 174 F. 2d 961, 966 (D.C.Cir. 
1949), revd. on other grounds sub nom. Johnson v. Eisentrager, 339 U.S. 
763 (1950). Justice Douglas, with whom Justice Black joined, said in 
Glidden Co. v. Zdanok, 370 U.S. 530, 605 n. 11 (1962) (dissenting 
opinion): ``There is a serious question whether the McCardle case could 
command a majority view today.'' Justice Harlan, however, cited McCardle 
with apparent approval of its holding, id., 567-568, while noting that 
Congress' ``authority is not, of course, unlimited.'' Id., 568. McCardle 
was cited approvingly in Bruner v. United States, 343 U.S. 112, 117 n. 8 
(1952), as illustrating the rule ``that when a law conferring 
jurisdiction is repealed without any reservation as to pending cases, 
all cases fall with the law. . . .''

        Another Reconstruction Congress attempt to curb the judiciary 
failed in United States v. Klein,\1108\ in which a statute, couched in 
jurisdictional terms, which attempted to set aside both the effect of a 
presidential pardon and the judicial effectuation of such a pardon was 
voided.\1109\ The statute declared that no pardon was to be admissible 
in evidence in support of any claim against the United States in the 
Court of Claims for the return of confiscated property of Confederates 
nor, if already put in evidence in a pending case, should it be 
considered on behalf of the claimant by the Court of

[[Page 789]]
Claims or by the Supreme Court on appeal. Proof of loyalty was required 
to be made according to provisions of certain congressional enactments 
and when judgment had already been rendered on other proof of loyalty 
the Supreme Court on appeal should have no further jurisdiction and 
should dismiss for want of jurisdiction. Moreover, it was provided that 
the recitation in any pardon which had been received that the claimant 
had taken part in the rebellion was to be taken as conclusive evidence 
that the claimant had been disloyal and was not entitled to regain his 

        \1108\13 Wall. (80 U.S.) 128 (1872). See C. Fairman, History of 
the Supreme Court of the United States: Vol. VI, Pt. I--Reconstruction 
and Reunion 1864-88 (New York: 1971), 558-618. The seminal discussion of 
Klein may be found in Young, Congressional Regulation of Federal Courts' 
Jurisdiction and Processes: United States v. Klein Revisited, 1981 Wisc. 
L. Rev. 1189. While he granted that Klein is limited insofar as its 
bearing on jurisdictional limitation per se is concerned, he cited an 
ambiguous holding in Armstron v. United States, 13 Wall. (80 U.S.) 154 
(1872), as in fact a judicial invalidation of a jurisdictional 
limitation. Young, id., 1222-1223 n. 179.
        \1109\Congress by the Act of July 17, 1862, Sec. Sec. 5, 13, 
authorized the confiscation of property of those persons in rebellion 
and authorized the President to issue pardons on such conditions as he 
deemed expedient, the latter provision being unnecessary in light of 
Article II, Sec. 2, cl. 1. The President's pardons all provided for 
restoration of property, except slaves, and in United States v. 
Padelford, 9 Wall, (76 U.S.) 531 (1870), the Court held the claimant 
entitled to the return of his property on the basis of his pardon. 
Congress thereupon enacted the legislation in question. 16 Stat. 235 

        The Court began by reaffirming that Congress controlled the 
existence of the inferior federal courts and the jurisdiction vested in 
them and the appellate jurisdiction of the Supreme Court. ``But the 
language of this provision shows plainly that it does not intend to 
withhold appellate jurisdiction except as a means to an end. . . . It is 
evident . . . that the denial of jurisdiction to this court, as well as 
to the Court of Claims, is founded solely on the application of a rule 
of decision, in causes pending, prescribed by Congress. The Court has 
jurisdiction of the cause to a given point; but when it ascertains that 
a certain state of things exists, its jurisdiction is to cease and it is 
required to dismiss the cause for want of jurisdiction.

        ``It seems to us that this is not an exercise of the 
acknowledged power of Congress to make exceptions and prescribe 
regulations to the appellate power.''\1110\ The statute was void for two 
reasons; it ``infring[ed] the constitutional power of the 
Executive,''\1111\ and it ``prescrib[ed] a rule for the decision of a 
cause in a particular way.''\1112\ Klein thus stands for the proposition 
that Congress may not violate the principle of separation of 
powers\1113\ and that it may not accomplish certain forbidden 
substantive acts by casting them in jurisdictional terms.\1114\

        \1110\United States v. Klein, 13 Wall. (80 U.S.) 128, 145-146 
        \1111\Id., 147.
        \1112\Id., 146.
        \1113\Id., 147. For an extensive discussion of Klein, see United 
States v. Sioux Nation, 448 U.S. 371, 391-405 (1980), and id., 424, 427-
434 (Justice Rehnquist dissenting). See also Pope v. United States, 323 
U.S. 1, 8-9 (1944); Glidden Co. v. Zdanok, 370 U.S. 530, 568 (1962) 
(Justice Harlan). In Robertson v. Seattle Audubon Society, 112 S.Ct. 
1407 (1992), the 9th Circuit had held unconstitutional under Klein a 
statute that it construed to deny the federal courts power to construe 
the law, but the Supreme Court held that Congress had changed the law 
that the courts were to apply. The Court declined to consider whether 
Klein was properly to be read as voiding a law ``because it directed 
decisions in pending cases without amending any law.'' Id., 1414.
        \1114\United States v. Klein, 13 Wall. (80 U.S.) 128, 147 

        Other restraints on congressional power over the federal courts 
may be gleaned from the opinion in the much-disputed Crowell v.

[[Page 790]]
Benson.\1115\ In an 1856 case, the Court distinguished between matters 
of private right which from their nature were the subject of a suit at 
the common law, equity, or admiralty and which cannot be withdrawn from 
judicial cognizance and those matters of public right which, though 
susceptible of judicial determination, did not require it and which 
might or might not be brought within judicial cognizance.\1116\ What 
this might mean was elaborated in Crowell v. Benson,\1117\ involving the 
finality to be accorded administrative findings of jurisdictional facts 
in compensation cases. In holding that an employer was entitled to a 
trial de novo of the constitutional jurisdictional facts of the matter 
of the employer-employee relationship and of the occurrence of the 
injury in interstate commerce, Chief Justice Hughes fused the due 
process clause of the Fifth Amendment and Article III but emphasized 
that the issue ultimately was ``rather a question of the appropriate 
maintenance of the Federal judicial power'' and ``whether the Congress 
may substitute for constitutional courts, in which the judicial power of 
the United States is vested, an administrative agency . . . for the 
final determination of the existence of the facts upon which the 
enforcement of the constitutional rights of the citizen depend.'' The 
answer was stated broadly. ``In cases brought to enforce constitutional 
rights, the judicial power of the United States necessarily extends to 
the independent determination of all questions, both of law and fact, 
necessary to the performance of that supreme function. . . . We think 
that the essential independence of the exercise of the judicial power of 
the United States in the enforcement of constitutional rights requires 
that the Federal court should determine such an issue upon its own 
record and the facts elicited before it.''\1118\

        \1115\285 U.S. 22 (1932). See also Ng Fung Ho v. White, 259 U.S. 
276 (1922); Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287 
(1920); St. Joseph Stock Yard Co. v. United States, 298 U.S. 38 (1936).
        \1116\Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 
(59 U.S.) 272 (1856).
        \1117\285 U.S. 22 (1932). Justices Brandeis, Stone, and Roberts 
        \1118\Id., 56, 60, 64.

        It is not at all clear that, in this respect, Crowell v. Benson 
remains good law. It has never been overruled, and it has been cited

[[Page 791]]
by several Justices approvingly,\1119\ but the Court has never applied 
the principle to control another case.\1120\

        \1119\See Northern Pipeline Const. Co. v. Marathon Pipe Line 
Co., 458 U.S. 50, 76-87 (1982) (plurality opinion), and id., 100-103, 
109-111 (Justice White dissenting) (discussing the due process/Article 
III basis of Crowell). Both the plurality and the dissent agreed that 
later cases had ``undermined'' the constitutional/jurisdictional fact 
analysis. Id., 82, n. 34; 110 n. 12. For other discussions, see 
Jacobellis v. Ohio, 378 U.S. 184, 190 (1964) (Justice Brennan announcing 
judgment of the Court, joined by Justice Goldberg); Pickering v. Board 
of Education, 391 U.S. 563, 578-579 (1968); Agosto v. INS, 436 U.S. 748, 
753 (1978); United States v. Raddatz, 447 U.S. 667, 682-684 (1980), and 
id., 707-712 (Justice Marshall dissenting).
        \1120\Compare Permian Basin Area Rate Cases, 390 U.S. 747, 767, 
792 (1968); Cordillo v. Liberty Mutual Ins. Co., 330 U.S. 469 (1947); 
South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251 (1940). Justice 
Frankfurter was extremely critical of Crowell. Estep v. United States, 
327 U.S. 114, 142 (1946); City of Yonkers v. United States, 320 U.S. 685 

        Express Constitutional Restrictions on Congress.--``[T]he 
Constitution is filled with provisions that grant Congress or the States 
specific power to legislate in certain areas;'' Justice Black said in a 
different context, ``these granted powers are always subject to the 
limitations that they may not be exercised in a way that violates other 
specific provisions of the Constitution.''\1121\ The Supreme Court has 
had no occasion to deal with this principle in the context of Congress' 
power over its jurisdiction and the jurisdiction of the inferior federal 
courts, but the passage of the Portal-to-Portal Act\1122\ presented the 
lower courts such an opportunity. The Act extinguished back-pay claims 
growing out of several Supreme Court interpretations of the Fair Labor 
Standards Act; it also provided that no court should have jurisdiction 
to enforce any claim arising from these decisions. While some district 
courts sustained the Act on the basis of the withdrawal of jurisdiction, 
this action was disapproved by the Courts of Appeals which indicated 
that the withdrawal of jurisdiction would be ineffective if the 
extinguishment of the claims as a substantive matter was invalid. ``We 
think . . . that the exercise by Congress of its control over 
jurisdiction is subject to compliance with at least the requirements of 
the Fifth Amendment. That is to say, while Congress has the undoubted 
power to give, withhold, and restrict the jurisdiction of the courts 
other than the Supreme Court, it must not so exercise that power as to 
deprive any person of life, liberty, or property without due

[[Page 792]]
process of law or to take private property without just 

        \1121\Williams v. Rhodes, 393 U.S. 23, 29 (1968) (opinion of the 
Court.) The elder Justice Harlan perhaps had the same thought in mind 
when he said that, with regard to Congress' power over jurisdiction, 
``what such exceptions and regulations should be it is for Congress, in 
its wisdom to establish, having of course due regard to all the 
Constitution.'' United States v. Bitty, 208 U.S. 393, 399-400 (1908).
        \1122\52 Stat. 1060, 29 U.S.C. Sec. 201.
        \1123\Battaglia v. General Motors Corp., 169 F. 2d 254, 257 (2d 
Cir.), cert. den. 335 U.S. 887 (1948) (Judge Chase). See also Seese v. 
Bethlehem Steel Co., 168 F. 2d 58, 65 (4th Cir. 1948) (Chief Judge 
Parker). For recent dicta, see Johnson v. Robison, 415 U.S. 361, 366-367 
(1974); Weinberger v. Salfi, 422 U.S. 749, 761-762 (1975); Territory of 
Guam v. Olsen, 431 U.S. 195, 201-202, 204 (1977); Adamo Wrecking Co. v. 
United States, 434 U.S. 275 (1978); Bowen v. Michigan Academy of Family 
Physicians, 476 U.S. 667, 681 n. 12 (1986); Webster v. Doe, 486 U.S. 
592, 603 (1988); but see id., 611-615 (Justice Scalia dissenting). Note 
the relevance of United States v. Mendoza-Lopez, 481 U.S. 828 (1987).

        Conclusion.--There thus remains a measure of doubt that 
Congress' power over the federal courts is as plenary as some of the 
Court's language suggests it is. Congress has a vast amount of 
discretion in conferring and withdrawing and structuring the original 
and appellate jurisdiction of the inferior federal courts and the 
appellate jurisdiction of the Supreme Court; so much is clear from the 
practice since 1789 and the holdings of many Court decisions. That its 
power extends to accomplishing by means of its control over jurisdiction 
actions which it could not do directly by substantive enactment is by no 
means clear from the text of the Constitution nor from the cases.


      Problems Raised by Concurrency

        The Constitution established a system of government in which 
total power, sovereignty, was not unequivocally lodged in one level of 
government. In Chief Justice Marshall's words, ``our complex system 
[presents] the rare and difficult scheme of one general government, 
whose actions extend over the whole, but which possesses only certain 
enumerated powers, and of numerous state governments, which retain and 
exercise all powers not delegated to the Union. . . .'' Naturally, in 
such a system, ``contests respecting power must arise.''\1124\ Contests 
respecting power may frequently arise in a federal system with dual 
structures of courts exercising concurrent jurisdiction in a number of 
classes of cases. Too, the possibilities of frictions grow out of the 
facts that one set of courts may interfere directly or indirectly with 
the other through injunctive and declaratory processes, through the use 
of habeas corpus and removal to release persons from the custody of the 
other set, and through the refusal by state courts to be bound by 
decisions of the United States Supreme Court. The relations between 
federal and state courts are governed in part by constitutional law, 
with respect, say, to state court interference with federal courts and

[[Page 793]]
state court refusal to comply with the judgments of federal tribunals, 
in part by statutes, with respect to the federal law generally enjoining 
federal-court interference with pending state court proceedings, and in 
part by self-imposed rules of comity and restraint, such as the 
abstention doctrine, all applied to avoid unseemly conflicts, which, 
however, have at times occurred.

        \1124\Gibbons v. Ogden. 9 Wheat. (22 U.S.) 1.204-205 (1824).

        Subject to congressional provision to the contrary, state courts 
have concurrent jurisdiction over all the classes of cases and 
controversies enumerated in Article III, except suits between States, 
those to which the United States is a party, those to which a foreign 
state is a party, and those within the traditional admiralty 
jurisdiction.\1125\ Even within this last category, however, state 
courts, though unable to prejudice the harmonious operation and 
uniformity of general maritime law,\1126\ have concurrent jurisdiction 
over cases that occur within the maritime jurisdiction when such 
litigation assumes the form of a suit at common law.\1127\ Review of 
state court decisions by the United States Supreme Court is intended to 
protect the federal interest and promote uniformity of law and decision 
relating to the federal interest.\1128\ The first category of conflict 
surfaces here. The second broader category arises from the fact that 
state interests, actions, and wishes, all of which may at times be 
effectuated through state courts, are variously subject to restraint by 
federal courts. Although the possibility always existed,\1129\ it became 
much more significant and likely when, in the wake of the Civil War, 
Congress bestowed general fed

[[Page 794]]
eral question jurisdiction on the federal courts,\1130\ enacted a series 
of civil rights statutes and conferred jurisdiction on the federal 
courts to enforce them,\1131\ and most important of all proposed and saw 
to the ratification of the three constitutional amendments, especially 
the Fourteenth, which made subject to federal scrutiny an ever-
increasing number of state actions.\1132\

        \1125\See 28 U.S.C. Sec. Sec. 1251, 1331 et seq. Indeed, the 
presumption is that states courts enjoy concurrent jurisdiction, and 
Congress must explicity or implicitly confine jurisdiction to the 
federal courts to oust the state courts. See Gulf Offshore Co. v. Mobil 
Oil Corp., 453 U.S. 473, 477-484 (1981); Tafflin v. Levitt, 493 U.S. 455 
(1990); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990). 
Federal courts have exclusive jurisdiction of the federal antitrust 
laws, even though Congress has not spoken expressly or impliedly. See 
General Investment Co. v. Lake Shore & Michigan Southern R. Co., 260 
U.S. 261, 287 (1922). Justice Scalia has argued that, inasmuch as state 
courts have jurisdiction generally because federal law is law for them, 
Congress can provide exclusive federal jurisdiction only by explicit and 
affirmative statement in the text of the statute, Tafflin v. Levitt, 
supra, 469, but as can be seen that is not now the rule.
        \1126\Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).
        \1127\Through the ``saving to suitors'' clause. 28 U.S.C. 
Sec. 1333(1). See Madruga v. Superior Court, 346 U.S. 556, 560-561 
        \1128\Supra, pp.597-598, 701-703. See 28 U.S.C. Sec. 1257.
        \1129\E.g., by a suit against a State by a citizen of another 
State directly in the Supreme Court, Chisholm v. Georgia, 2 Dall. (2 
U.S.) 419 (1793), which was overturned by the Eleventh Amendment; by 
suits in diversity or removal from state courts where diversity existed, 
1 Stat. 78, 79; by suits by aliens on treaties, 1 Stat. 77, and, 
subsequently, by removal from state courts of certain actions. 3 Stat. 
198. And for some unknown reason, Congress passed in 1793 a statute 
prohibiting federal court injunctions against state court proceedings. 
See Toucey v. New York Life Ins. Co., 314 U.S. 118, 120-132 (1941).
        \1130\Act of March 3, 1875, 18 Stat. 470.
        \1131\Civil Rights Act of 1871, Sec. 1, 17 Stat. 13. The 
authorization for equitable relief is now 42 U.S.C. Sec. 1983, while 
jurisdiction is granted by 28 U.S.C. Sec. 1343.
        \1132\See H. Wechsler, The Nationalization of Civil Liberties 
and Civil Rights (Austin: 1969).
      The Autonomy of State Courts

        Noncompliance With and Disobedience of Supreme Court Orders by 
State Courts.--The United States Supreme Court when deciding cases on 
review from the state courts usually remands the case to the state court 
when it reverses for ``proceedings not inconsistent'' with the Court's 
opinion. This disposition leaves open the possibility that unresolved 
issues of state law will be decided adversely to the party prevailing in 
the Supreme Court or that the state court will so interpret the facts or 
the Court's opinion to the detriment of the party prevailing in the 
Supreme Court.\1133\ When it is alleged that the state court has 
deviated from the Supreme Court's mandate, the party losing below may 
appeal again\1134\ or she may presumably apply for mandamus to compel 
compliance.\1135\ Statutorily, the Court may attempt to overcome state 
recalcitrance by a variety of specific forms of judgment.\1136\

[[Page 795]]
If, however, the state courts simply defy the mandate of the Court, 
difficult problems face the Court, extending to the possibility of 
contempt citations.\1137\

        \1133\Hart & Wechsler, op. cit., n. 250, 518-521. Notable 
examples include Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 
(1816); Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 (1821); Ableman v. 
Booth, 21 How. (62 U.S.) 506 (1859). For studies, see Note, Final 
Disposition of State Court Decisions Reversed and Remanded by the 
Supreme Court, October Term 1931 to October Term 1940, 55 Harv. L. Rev. 
1357 (1942); Note, Evasion of Supreme Court Mandates in Cases Remanded 
to State Courts Since 1941, 67 Harv. L. Rev. 1251 (1954); Schneider, 
State Court Evasion of United States Supreme Court Mandates: A 
Reconsideration of the Evidence, 7 Valp. L. Rev. 191 (1973).
        \1134\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816). 
See 2 W. Crosskey, Politics and the Constitution in the History of the 
United States (Chicago: 1953), 785-817; 1 C. Warren, The Supreme Court 
in United States History (Boston: 1926), 442-453. For recent examples, 
see NAACP v. Alabama, 360 U.S. 240, 245 (1959); NAACP v. Alabama ex rel. 
Flowers, 377 U.S. 288 (1964), after remand, 277 Ala. 89, 167 So. 2d 171 
(1964); Stanton v. Stanton, 429 U.S. 501 (1977); General Atomic Co. v. 
Felter, 436 U.S. 493 (1978).
        \1135\It does not appear that mandamus has ever actually issued. 
See In re Blake, 175 U.S. 114 (1899); Ex parte Texas, 315 U.S. 8 (1942); 
Fisher v. Hurst, 333 U.S. 147 (1948); Lavender v. Clark, 329 U.S. 674 
(1946); General Atomic Co. v. Felter, 436 U.S. 493 (1978).
        \1136\Martin v. Hunter's Lessee, 1 Wheat. (14 U.S.) 304 (1816); 
McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 437 (1819); Gibbons v. 
Ogden, 9 Wheat. (22 U.S.) 1, 239 (1824); Williams v. Bruffy, 102 U.S. 
248 (1880) (entry of judgment); Tyler v. Maguire, 17 Wall. (84 U.S.) 253 
(1873) (award of execution); Stanley v. Schwalby, 162 U.S. 255 (1896); 
Poindexter v. Greenhow, 114 U.S. 270 (1885) (remand with direction to 
enter a specific judgment). See 28 U.S.C. Sec. 1651(a), 2106.
        \1137\See 18 U.S.C. Sec. 401. In United States v. Shipp, 203 
U.S. 563 (1906), 214 U.S. 386 (1909); 215 U.S. 580 (1909), on action by 
the Attorney General, the Court appointed a commissioner to take 
testimony, rendered judgment of conviction, and imposed sentence on a 
state sheriff who had conspired with others to cause the lynching of a 
prisoner in his custody after the Court had allowed an appeal from a 
circuit court's denial of a petition for a writ of habeas corpus. A 
question whether a probate judge was guilty of contempt of an order of 
the Court in failing to place certain candidates on the ballot was 
certified to the district court, over the objections of Justices Douglas 
and Harlan, who wished to follow the Shipp practice. In re Herndon, 394 
U.S. 399 (1969). See In re Herndon, 325 F. Supp. 779 (M.D. Ala. 1971).

        The most spectacular disobedience of federal authority arose out 
of the conflict between the Cherokees and the State of Georgia, which 
was seeking to remove them and seize their lands, with the active 
support of President Jackson.\1138\ In the first instance, after the 
Court had issued a writ of error to the Georgia Supreme Court to review 
the murder conviction of a Cherokee, Corn Tassel, and after the writ was 
served, Corn Tassel was executed on the day set for the event, contrary 
to the federal law that a writ of error superseded sentence until the 
appeal was decided.\1139\ Two years later, Georgia again defied the 
Court when in Worcester v. Georgia,\1140\ it set aside the conviction of 
two missionaries for residing among the Indians without a license. 
Despite the issuance of a special mandate to a local court to discharge 
the missionaries, they were not released, and the State's governor 
loudly proclaimed resistance. Consequently, the two remained in jail 
until they agreed to abandon further efforts for their discharge by 
federal authority and to leave the State, whereupon the governor 
pardoned them.

        \1138\1 C. Warren, The Supreme Court in United States History 
(Boston: 1926), 729-779.
        \1139\Id., 732-736.
        \1140\6 Pet. (31 U.S.) 515 (1832).

        Use of State Courts in Enforcement of Federal Law.--Although the 
states-rights proponents in the Convention and in the First Congress 
wished to leave to the state courts the enforcement of federal law and 
rights rather than to create inferior federal courts,\1141\ it was not 
long before they or their successors began to argue that state courts 
could not be required to adjudicate cases based on federal law. The 
practice in the early years was to make the jurisdiction of federal 
courts generally concurrent with that of state courts,\1142\ and early 
Congresses imposed positive duties on

[[Page 796]]
state courts to enforce federal laws.\1143\ Reaction set in out of 
hostility to the Embargo Acts, the Fugitive Slave Law, and other 
measures,\1144\ and in Prigg v. Pennsylvania,\1145\ involving the 
Fugitive Slave Law, the Court indicated that the States could not be 
compelled to enforce federal law. After a long period, however, Congress 
resumed its former practice,\1146\ which the Court sustained,\1147\ and 
it went even further in the Federal Employers' Liability Act by not only 
giving state courts concurrent jurisdiction but also by prohibiting the 
removal of cases begun in state courts to the federal courts.\1148\

        \1141\Supra, pp.597-598.
        \1142\Judiciary Act of 1789, Sec. Sec. 9, 11, 1 Stat. 76, 78, 
and see id., Sec. 25, 1 Stat. 85.
        \1143\E.g., Carriage Tax Act, 1 Stat. 373 (1794); License Tax on 
Wine & Spirits Act, 1 Stat. 376 (1794): Fugitive Slave Act, 1 Stat. 302 
(1794); Naturalization Act of 1795, 1 Stat. 414; Alien Enemies Act of 
1798, 1 Stat. 577. State courts in 1799 were vested with jurisdiction to 
try criminal offenses against the postal laws. 1 Stat. 733, 28. The Act 
of March 3, 1815, 3 Stat. 244, vested state courts with jurisdiction of 
complaints, suits, and prosecutions for taxes, duties, fines, penalties, 
and forfeitures. See Warren, Federal Criminal Laws and State Courts, 38 
Harv. L. Rev. 545, 577-581 (1925).
        \1144\Embargo Acts, 2 Stat. 453, 473, 499, 506, 528, 550, 605, 
707 (1808-1812); 3 Stat. 88 (1813); Fugitive Slave Act, 1 Stat. 302 
        \1145\16 Pet. (41 U.S.) 539, 615 (1842), See also Houston v. 
Moore, 5 Wheat. (18 U.S.) 1, 69 (1820) (Justice Story dissenting); 
United States v. Bailey, 9 Pet. (34 U.S.) 238, 259 (1835) (Justice 
McLean dissenting). However, it was held that States could exercise 
concurrent jurisdiction if they wished. Claflin v. Houseman, 93 U.S. 130 
(1876), and cases cited.
        \1146\E.g., Act of June 8, 1872, 17 Stat. 323.
        \1147\Claflin v. Houseman, 93 U.S. 130 (1876).
        \1148\35 Stat. 65 (1908), as amended, 45 U.S.C. Sec. Sec. 51-60.

        When Connecticut courts refused to enforce an FELA claim on the 
ground that to do so was contrary to the public policy of the State, the 
Court held on the basis of the supremacy clause that when Congress 
enacts a law and declares a national policy, that policy is as much 
Connecticut's and every other State's as it is of the collective United 
States.\1149\ The Court's suggestion that the Act could be enforced ``as 
of right, in the courts of the States when their jurisdiction, as 
prescribed by local laws, is adequate to the occasion,''\1150\ leaving 
the impression that state practice might in some instances preclude 
enforcement in state courts, was given body when the Court upheld New 
York's refusal to adjudicate an FELA claim which fell in a class of 
cases in which claims under state law would not be entertained.\1151\ 
``[T]here is nothing in the Act of Congress that purports to force a 
duty upon such Courts as against an otherwise valid excuse.''\1152\ 
However, ``[a]n excuse that

[[Page 797]]
is inconsistent with or violates federal law is not a valid excuse. 
. . .''\1153\

        \1149\Second Employers' Liability Cases (Mondou v. New York, 
N.H. & H. R. Co.), 223 U.S. 1 (1912).
        \1150\Id., 59.
        \1151\Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929).
        \1152\Id., 388. For what constitutes a valid excuse, compare 
Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950), with 
McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230 (1934). It appears 
that generally state procedure must yield to federal when it would make 
a difference in outcome. Compare Brown v. Western Ry. of Alabama, 338 
U.S. 294 (1949), and Dice v. Akron, C. & Y. R. Co., 342 U.S. 359 (1952), 
with Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211 (1916).
        \1153\Howlett by Howlett v. Rose, 496 U.S. 356, 371 (1990). See 
also Felder v. Casey, 487 U.S. 131 (1988).

        In Testa v. Katt,\1154\ the Court unanimously held that state 
courts, at least in regard to claims and cases analogous to claims and 
cases enforceable in those courts under state law, are as required to 
enforce penal laws of the United States as they are to enforce remedial 
laws. Respecting Rhode Island's claim that one sovereign cannot enforce 
the penal laws of another, Justice Black observed that the assumption 
underlying this claim flew ``in the face of the fact that the States of 
the Union constitute a nation'' and the fact of the existence of the 
supremacy clause.\1155\

        \1154\330 U.S. 386 (1947).
        \1155\Id., 389. See, for a discussion as well as an extension of 
Testa, FERC v. Mississippi, 456 U.S. 742 (1982). Cases since Testa 
requiring state court enforcement of federal rights have generally 
concerned federal remedial laws. E.g., Charles Dowd Box Co. v. Courtney, 
368 U.S. 502 (1962); Sullivan v. Little Hunting Park, 396 U.S. 229 
(1969). The Court has approved state court adjudication under 42 U.S.C. 
Sec. 1983, Maine v. Thiboutot, 448 U.S. 1, 3 n. 1 (1980), but curiously 
in Martinez v. California, 444 U.S. 277, 283 n. 7 (1980) (emphasis by 
Court), it noted that it has ``never considered . . . the question 
whether a State must entertain a claim under 1983.'' See also Arkansas 
Writers' Project, inc. v. Ragland, 481 U.S. 221, 234 n. 7 (1987) 
(continuing to reserve question). But with Felder v. Casey, 487 U.S. 131 
(1988), and Howlett by Howlett v. Rose, 496 U.S. 356 (1990), it seems 
dubious that state courts could refuse. Enforcement is not limited to 
federal statutory law; federal common law must similarly be enforced. 
Free v. Brand, 369 U.S. 663 (1962).

        State Interference with Federal Jurisdiction.--It seems settled, 
though not without dissent, that state courts have no power to enjoin 
proceedings\1156\ or effectuation of judgments\1157\ of the federal 
courts, with the exception of cases in which a state court has custody 
of property in proceedings in rem or quasi in rem, where the state court 
has exclusive jurisdiction to proceed and may enjoin parties from 
further action in federal court.\1158\

        \1156\Donovan v. City of Dallas, 377 U.S. 408 (1964), and cases 
cited. Justices Harlan, Clark, and Stewart dissented, arguing that a 
State should have power to enjoin vexatious, duplicative litigation 
which would have the effect of thwarting a state-court judgment already 
entered. See also Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 56 
(1941) (Justice Frankfurter dissenting). In Riggs v. Johnson County, 6 
Wall. (73 U.S.) 166 (1868), the general rule was attributed to the 
complete independence of state and federal courts in their spheres of 
action, but federal courts, of course may under certain circumstances 
enjoin actions in state courts.
        \1157\McKim v. Voorhies, 7 Cr. (11 U.S.) 279 (1812); Riggs v. 
Johnson County, 6 Wall. (73 U.S.) 166 (1868).
        \1158\Princess Lida v. Thompson, 305 U.S. 456 (1939). Nor do 
state courts have any power to release by habeas corpus persons in 
custody pursuant to federal authority. Ableman v. Booth, 21 How. (62 
U.S.) 506 (1859); Tarble's Case, 13 Wall. (80 U.S.) 397 (1872).


[[Page 798]]
      Conflicts of Jurisdiction: Rules of Accommodation

        Federal courts primarily interfere with state courts in three 
ways: by enjoining proceedings in them, by issuing writs of habeas 
corpus to set aside convictions obtained in them, and by adjudicating 
cases removed from them. With regard to all three but particularly with 
regard to the first, there have been developed certain rules plus a 
statutory limitation designed to minimize needless conflict.

        Comity.--``[T]he notion of `comity,''' Justice Black asserted, 
is composed of ``a proper respect for state functions, a recognition of 
the fact that the entire country is made up of a Union of separate state 
governments, and a continuance of the belief that the National 
Government will fare best if the States and their institutions are left 
free to perform their separate functions in their separate ways. This, 
perhaps for lack of a better and clearer way to describe it, is referred 
to by many as `Our Federalism'. . . .''\1159\ Comity is a self-imposed 
rule of judicial restraint whereby independent tribunals of concurrent 
or coordinate jurisdiction act to moderate the stresses of coexistence 
and to avoid collisions of authority. It is not a rule of law but ``one 
of practice, convenience, and expediency''\1160\ which persuades but 
does not command.

        \1159\Younger v. Harris, 401 U.S. 37, 44 (1971). Compare Fair 
Assessment in Real Estate Assn. v. McNary, 454 U.S. 100 (1981), with 
id., 119-125 (Justice Brennan concurring, joined by three other 
        \1160\Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 
458, 488 (1900). Recent decisions emphasize comity as the primary reason 
for restraint in federal court actions tending to interfere with state 
courts. E.g., O'Shea v. Littleton, 414 U.S. 488, 499-504 (1974); Huffman 
v. Pursue, Ltd., 420 U.S. 592, 599-603 (1975); Trainor v. Hernandez, 431 
U.S. 434, 441 (1977); Moore v. Sims, 442 U.S. 415, 430 (1979). The Court 
has also cited comity as a reason to restrict access to federal habeas 
corpus. Francis v. Henderson, 425 U.S. 536, 541 and n. 31 (1976); 
Wainwright v. Sykes, 433 U.S. 72, 83, 88, 90 (1977); Engle v. Isaac, 456 
U.S. 107, 128-129 (1982). See also Rosewell v. LaSalle National Bank, 
450 U.S. 503 (1981); Fair Assessment in Real Estate Assn. v. McNary, 454 
U.S. 100 (1981) (comity limits federal court interference with state tax 
systems). And see Missouri v. Jenkins, 495 U.S. 33 (1990).

        Abstention.--Perhaps the fullest expression of the concept of 
comity may be found in the abstention doctrine. The abstention doctrine 
instructs federal courts to abstain from exercising jurisdiction if 
applicable state law, which would be dispositive of the controversy, is 
unclear and a state court interpretation of the state law question might 
obviate the necessity of deciding a federal constitutional issue.\1161\ 
Abstention is not proper, however, where the rel

[[Page 799]]
evant state law is settled,\1162\ nor where it is clear that the state 
statute or action challenged is unconstitutional no matter how the state 
court construes state law.\1163\ Federal jurisdiction is not ousted by 
abstention; rather it is postponed.\1164\ Federal-state tensions would 
be ameliorated through federal-court deference to the concept that state 
courts are as adequate a protector of constitutional liberties as the 
federal courts and through the minimization of the likelihood that state 
programs would be thwarted by federal intercession. Federal courts would 
benefit because time and effort would not be expended in decision of 
difficult constitutional issues which might not require decision.\1165\

        \1161\C. Wright, Handbook of the Law of Federal Courts (St. 
Paul: 4th ed. 1983), 13. The basic doctrine was formulated by Justice 
Frankfurter for the Court in Railroad Comm. v. Pullman Co., 312 U.S. 496 
(1941). Other strands of the doctrine are that a federal court should 
refrain from exercising jurisdiction in order to avoid needless conflict 
with the administration by a State of its own affairs, Burford v. Sun 
Oil Co., 319 U.S. 315 (1943); Alabama Pubic Service Comm. v. Southern 
Ry., 341 U.S. 341 (1951); Great Lakes Dredge & Dock Co. v. Huffman, 319 
U.S. 293 (1943); Martin v. Creasy, 360 U.S. 219 (1959); Moses H. Cone 
Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983); New Orleans Public 
Service, Inc. v. Council of the City of New Orleans, 491 U.S. 350 (1989) 
(carefully reviewing the scope of the doctrine), especially where state 
law is unsettled. Meredith v. City of Winter Haven, 320 U.S. 228 (1943); 
County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959); Louisiana 
Power & Light Co. v. City of Thiobodaux, 360 U.S. 25 (1959). See also 
Clay v. Sun Insurance Office Ltd., 363 U.S. 207 (1960). Also, while 
pendency of an action in state court will not ordinarily cause a federal 
court to abstain, there are ``exceptional'' circumstances in which it 
should. Colorado River Water Conservation Dist. v. United States, 424 
U.S. 800 (1976); Will v. Calvert Fire Insurance Co., 437 U.S. 655 
(1978); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).
        \1162\City of Chicago v. Atchison, T. & S.F.R. Co., 357 U.S. 77 
(1958); Zwickler v. Koota, 389 U.S. 241, 249-251 (1967). See Babbitt v. 
United Farm Workers Nat. Union, 442 U.S. 289, 306 (1979) (quoting Harman 
v. Forssenius, 380 U.S. 528, 534-535 (1965)).
        \1163\Harman v. Forssenius, 380 U.S. 528, 534-535 (1965); 
Babbitt v. United Farm Workers, 442 U.S. 289, 305-312 (1979). Abstention 
is not proper simply to afford a state court the opportunity to hold 
that a state law violates the federal Constitution. Wisconsin v. 
Constanineau, 400 U.S. 433 (1971); Zablocki v. Redhail, 434 U.S. 374, 
379 n. 5 (1978); Douglas v. Seacoast Products, 431 U.S. 265, 271 n. 4 
(1977); City of Houston v. Hill, 482 U.S. 451 (1987) (``A federal court 
may not properly ask a state court if it would care in effect to rewrite 
a statute''). But if the statute is clear and there is a reasonable 
possibility that the state court would find it in violation of a 
distinct or specialized state constitutional provision, abstention may 
be proper, Harris County Comrs. Court v. Moore, 420 U.S. 77 (1975); 
Reetz v. Bozanich, 397 U.S. 82 (1970), although not if the state and 
federal constitutional provisions are alike. Examining Bd. v. Flores de 
Otero, 426 U.S. 572, 598 (1976).
        \1164\American Trial Lawyers Assn. v. New Jersey Supreme Court, 
409 U.S. 467, 469 (1973); Harrison v. NAACP, 360 U.S. 167 (1959). 
Dismissal may be necessary if the state court will not accept 
jurisdiction while the case is pending in federal court. Harris County 
Comrs. v. Moore, 420 U.S. 77, 88 n. 14 (1975).
        \1165\E.g., Spector Motor Service v. McLaughlin, 323 U.S. 101 
(1944); Louisiana Power & Light Co. v. City of Thiobodaux, 360 U.S. 25 
(1959); Harrison v. NAACP, 360 U.S. 167 (1959).

        During the 1960s, the abstention doctrine was in disfavor with 
the Supreme Court, suffering rejection in numerous cases, most of them 
civil rights and civil liberties cases.\1166\ Time-consuming

[[Page 800]]
delays\1167\ and piecemeal resolution of important questions\1168\ were 
cited as a too-costly consequence of the doctrine. Actions brought under 
the civil rights statutes seem not to have been wholly subject to the 
doctrine,\1169\ and for awhile cases involving First Amendment 
expression guarantees seemed to be sheltered as well, but this is no 
longer the rule.\1170\ Abstention developed robustly with Younger v. 
Harris,\1171\ and its progeny.

        \1166\McNeese v. Board of Education, 373 U.S. 668 (1963); 
Griffin v. School Board, 377 U.S. 218 (1964); Hostetter v. Idlewild Bon 
Voyage Liquor Corp., 377 U.S. 324 (1964); Baggett v. Bullitt, 377 U.S. 
360 (1964); Davis v. Mann, 377 U.S. 678 (1964); Dombrowski v. Pfister, 
380 U.S. 479 (1965); Harman v. Forssenius, 380 U.S. 528 (1965); Zwickler 
v. Koota, 389 U.S. 241 (1967); Wisconsin v. Constanineau, 400 U.S. 433 
        \1167\England v. Louisiana State Bd. of Medical Examiners, 375 
U.S. 411, 426 (1964) (Justice Douglas concurring). See C. Wright, 
Handbook of the Law of Federal Courts (St. Paul: 4th ed. 1983), 305.
        \1168\Baggett v. Bullitt, 377 U.S. 360, 378-379 (1964). Both 
consequences may be alleviated substantially by state adoption of 
procedures by which federal courts may certify to the State's highest 
court questions of unsettled state law which would be dispositive of the 
federal court action. The Supreme Court has actively encouraged resort 
to certification where it exists. Clay v. Sun Insurance Office Ltd., 363 
U.S. 207 (1960); Lehman Brothers v. Schein, 416 U.S. 386 (1974); 
Bellotti v. Baird, 428 U.S. 132, 151 (1976).
        \1169\Compare Harrison v. NAACP, 360 U.S. 167 (1959), with 
McNeese v. Board of Education, 373 U.S. 668 (1963).
        \1170\Compare Baggett v. Bullitt, 377 U.S. 360 (1964), and 
Dombrowski v. Pfister, 380 U.S. 479 (1965), with Younger v. Harris, 401 
U.S. 37 (1971), and Samuels v. Mackell, 401 U.S. 66 (1971). See Babbitt 
v. United Farm Workers, 442 U.S. 289, 305-312 (1979).
        \1171\401 U.S. 37 (1971). There is room to argue whether the 
Younger line of cases represents the abstention doctrine at all, but the 
Court continues to refer to it in those terms. E.g., Ankenbrandt v. 
Richards, 112 S.Ct. 2206, 2215 (1992).

        Exhaustion of State Remedies.--A complainant will ordinarily be 
required, as a matter of comity, to exhaust all his state legislative 
and administrative remedies before seeking relief in federal court where 
such remedies are, of course, available.\1172\ To do so may make 
unnecessary federal-court adjudication. The complainant will ordinarily 
not be required, however, to exhaust his state judicial remedies, 
inasmuch as it is a litigant's choice to proceed in either state or 
federal courts when the alternatives exist and a question for judicial 
adjudication is present.\1173\ But when a litigant is suing for 
protection of federally-guaranteed civil rights, he need not exhaust any 
kind of state remedy.\1174\

        \1172\The rule was formulated in Prentis v. Atlantic Coast Line 
Co., 211 U.S. 210 (1908), and Bacon v. Rutland R. Co., 232 U.S. 134 
        \1173\City Bank Farmers' Trust Co. v. Schnader, 291 U.S. 24 
(1934); Lane v. Wilson, 307 U.S. 268 (1939). But see Alabama Public 
Service Comm. v. Southern Ry. Co., 341 U.S. 341 (1951). Exhaustion of 
state court remedies is required in habeas corpus cases and usually in 
suits to restrain state court proceedings.
        \1174\Patsy v. Board of Regents, 457 U.S. 496 (1982). Where 
there are pending administrative proceedings that fall within the 
Younger rule, a litigant must exhaust. Younger v. Harris, 401 U.S. 37 
(1971), as explicated in Ohio Civil Rights Comm. v. Dayton Christian 
School, Inc., 477 U.S. 619, 627 n. 2 (1986). Under title VII of the 
Civil Rights Act of 1964, barring employment discrimination on racial 
and other specified grounds, the EEOC may not consider a claim until a 
state agency having jurisdiction over employment discrimination 
complaints has had at least 60 days to resolve the matter. 42 U.S.C. 
Sec. Sec. 2000e-5(c). See Love v. Pullman Co., 404 U.S. 522 (1972). And 
under the Civil Rights of Institutionalized Persons Act, there is a 
requirement of exhaustion, where States have federally-approved 
procedures. See Patsy, supra, 507-513.


[[Page 801]]

        Anti-Injunction Statute.--For reasons unknown,\1175\ Congress in 
1793 enacted a statute to prohibit the issuance of injunctions by 
federal courts to stay state court proceedings.\1176\ Over time, a long 
list of exceptions to the statutory bar was created by judicial 
decision,\1177\ but in Toucey v. New York Life Ins. Co.,\1178\ the Court 
in a lengthy opinion by Justice Frankfurter announced a very liberal 
interpretation of the anti-junction statute so as to do away with 
practically all the exceptions that had been created. Congress' response 
was to redraft the statute and to indicate that it was restoring the 
pre-Toucey interpretation.\1179\ Considerable disagreement exists over 
the application of the statute, however, and especially with regard to 
the exceptions permissible under its language. The present tendency 
appears to be to read the law expansively and the exceptions 
restrictively in the interest of preventing conflict with state 
courts.\1180\ Nonetheless, some exceptions do exist, either expressly or 
implicitly in statutory language\1181\ or

[[Page 802]]
through Court interpretation.\1182\ The Court's general policy of 
application, however, seems to a considerable degree to effectuate what 
is now at least the major rationale of the statute, deference to state 
court adjudication of issues presented to them for decision.\1183\

        \1175\Toucey v. New York Life Ins. Co., 314 U.S. 118, 130-132 
        \1176\``[N]or shall a writ of injunction be granted to stay 
proceedings in any court of a state; . . .'' Sec. 5, 1 Stat. 334 (1793), 
now, as amended, 28 U.S.C. Sec. 2283.
        \1177\Durfee & Sloss, Federal Injunctions Against Proceedings in 
State Courts: The Life History of a Statute, 30 Mich. L. Rev. 1145 
        \1178\314 U.S. 118 (1941).
        \1179\``A Court of the United States may not grant an injunction 
to stay proceedings in a State court except as expressly authorized by 
Act of Congress, or where necessary in aid of its jurisdiction, or to 
protect or effectuate its judgments.'' 28 U.S.C. Sec. 2283. The 
Reviser's Note is appended to the statute, stating intent.
        \1180\Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 
511 (1955); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive 
Engineers, 398 U.S. 281 (1970). See M. Redish, Federal Jurisdiction: 
Tensions in the Allocation of Judicial Power (Charlottesville: 1980), 
ch. 10.
        \1181\The greatest difficulty is with the ``expressly authorized 
by Act of Congress'' exception. No other Act of Congress expressly 
refers to Sec. 2283 and the Court has indicated that no such reference 
is necessary to create a statutory exception. Amalgamated Clothing 
Workers v. Richman Bros., 348 U.S. 511, 516 (1955). Compare Capital 
Serv, Inc. v. NLRB, 347 U.S. 501 (1954). Rather, ``in order to qualify 
as an `expressly authorized' exception to the anti-injunction statute, 
an Act of Congress must have created a specific and uniquely federal 
right or remedy, enforceable in a federal court of equity, that could be 
frustrated if the federal court were not empowered to enjoin a state 
court proceeding.'' Mitchum v. Foster, 407 U.S. 225, 237 (1972). 
Applying this test, the Court in Mitchum held that a 42 U.S.C. Sec. 1983 
suit is an exception to Sec. 2283 and that persons suing under this 
authority may, if they satisfy the requirements of comity, obtain an 
injunction against state court proceedings. The exception is, of course, 
highly constrained by the comity principle. On the difficulty of 
applying the test, see Vendo Co. v. Lektco-Vend Corp., 433 U.S. 623 
(1977) (fragmented Court on whether Clayton Act authorization of private 
suits for injunctive relief is an ``expressly authorized'' exception to 
Sec. 2283).
        On the interpretation of the Sec. 2283 exception for injunctions 
to protect or effectuate a federal-court judgment, see Chick Kam Choo v. 
Exxon Corp., 486 U.S. 140 (1988).
        \1182\Thus, the Act bars federal court restraint of pending 
state court proceedings but not restraint of the institution of such 
proceedings. Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2 (1965). 
Restraint is not barred if sought by the United States or an officer or 
agency of the United States. Leiter Minerals v. United States, 352 U.S. 
220 (1957); NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). Restraint is 
not barred if the state court proceeding is not judicial but rather 
administrative. Prentis v. Atlantic Coast Line Co., 211 U.S. 210 (1908); 
Roudebush v. Hartke, 405 U.S. 15 (1972). Compare Hill v. Martin, 296 
U.S. 393, 403 (1935), with Lynch v. Household Finance Corp., 405 U.S. 
538, 552-556 (1972).
        \1183\The statute is to be applied ``to prevent needless 
friction between state and federal courts.'' Oklahoma Packing Co. v. 
Oklahoma Gas & Electric Co., 309 U.S. 4, 9 (1940); Atlantic Coast Line 
R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 285-286 

        Res Judicata.--Both the Constitution and a contemporaneously-
enacted statute require federal courts to give ``full faith and credit'' 
to state court judgments, to give, that is, preclusive effect to state 
court judgments when those judgments would be given preclusive effect by 
the courts of that State.\1184\ The present Court views the 
interpretation of ``full faith and credit'' in the overall context of 
deference to state courts running throughout this section. ``Thus, res 
judicata and collateral estoppel not only reduce unnecessary litigation 
and foster reliance on adjudication, but also promote the comity between 
state and federal courts that has been recognized as a bulwark of the 
federal system.''\1185\ The Court in this case, after reviewing 
enactment of the statute that is now 42 U.S.C. Sec. 1983, held that 
Sec. 1983 is not an exception to the mandate of the res judicata 
statute.\1186\ An exception to Sec. 1738 ``will not be recognized unless 
a later statute contains an express or implied partial repeal.''\1187\ 
Thus, a claimant who pursued his employment discrimination remedies 
through state administrative procedures, as the federal law requires her 
to do (within limits), and then appealed an adverse state agency 
decision to state court will be precluded from bringing her federal 
claim to federal court, since the

[[Page 803]]
federal court is obligated to give the state court decision ``full faith 
and credit.''\1188\

        \1184\Article IV, Sec. 1, of the Constitution; 28 U.S.C. 
Sec. 1738.
        \1185\Allen v. McCurry, 449 U.S. 90, 95-96 (1980).
        \1186\Id., 96-105. There were three dissenters. Id., 105 
(Justices Blackmun, Brennan, and Marshall). In England v. Louisiana 
State Board of Medical Examiners, 375 U.S. 411 (1964), the Court held 
that when parties are compelled to go to state court under Pullman 
abstention, either party may reserve the federal issue and thus be 
enabled to return to federal court without being barred by res judicata.
        \1187\Kramer v. Chemical Construction Corp., 456 U.S. 461, 468 
        \1188\Id., 468-476. There were four dissents. Id., 486 (Justices 
Blackmun, Brennan, and Marshall), 508 (Stevens).

        Three-Judge Court Act.--When the Court in Ex parte Young\1189\ 
held that federal courts were not precluded by the Eleventh Amendment 
from restraining state officers from enforcing state laws determined to 
be in violation of the federal Constitution, serious efforts were made 
in Congress to take away the authority thus asserted, but the result 
instead was legislation providing that suits in which an interlocutory 
injunction was sought against the enforcement of state statutes by state 
officers were to be heard by a panel of three federal judges, rather 
than by a single district judge, with appeal direct to the Supreme 
Court.\1190\ The provision was designed to assuage state feeling by 
vesting such determinations in a court more prestigious than a single-
judge district court, to assure a more authoritative determination, and 
to prevent the assertion of individual predilections in sensitive and 
emotional areas.\1191\ Because, however, of the heavy burden that 
convening a three-judge court placed on the judiciary and that the 
direct appeals placed on the Supreme Court, the provisions for such 
courts, save in cases ``when otherwise required by an Act of 
Congress''\1192\ or in cases involving state legislative or 
congressional districting, were repealed in Congress in 1976.\1193\

        \1189\209 U.S. 123 (1908).
        \1190\36 Stat. 557 (1910). The statute was amended in 1925 to 
apply to requests for permanent injunctions, 43 Stat. 936, and again in 
1937 to apply to constitutional attacks on federal statutes. 50 Stat. 
        \1191\Swift & Co. v. Wickham, 382 U.S. 111, 119 (1965); Ex parte 
Collins, 277 U.S. 565, 567 (1928).
        \1192\These now are primarily limited to suits under the Voting 
Rights Act, 42 U.S.C. Sec. Sec. 1973b(a), 1973c, 1973h(c), and to 
certain suits by the Attorney General under public accommodations and 
equal employment provisions of the 1964 Civil Rights Act. 42 U.S.C. 
Sec. Sec. 2000a-5(b), 2000e-6(b).
        \1193\Pub. L. 94-381, 90 Stat. 1119, 28 U.S.C. Sec. 2284. In 
actions still required to be heard by three-judge courts, direct appeals 
are still available to the Supreme Court. 28 U.S.C. Sec. 1253.
      Conflicts of Jurisdiction; Federal Court Interference with State 

        One challenging the constitutionality, under the United States 
Constitution, of state actions, statutory or otherwise, could, of 
course, bring suit in state court; indeed, in the time before conferral 
of federal-question jurisdiction on lower federal courts plaintiffs had 
to bring actions in state courts, and on some occasions now, this has 
been done.\1194\ But the usual course is to sue in federal

[[Page 804]]
court for either an injunction or a declaratory judgment or both. In an 
era in which landmark decisions of the Supreme Court and of inferior 
federal courts have been handed down voiding racial segregation 
requirements, legislative apportionment and congressional districting, 
abortion regulations, and many other state laws and policies, it is 
difficult to imagine a situation in which it might be impossible to 
obtain such rulings because no one required as a defendant could be 
sued. Yet, the adoption of the Eleventh Amendment in 1798 resulted in 
the immunity of the State,\1195\ and the immunity of state officers if 
the action upon which they were being sued was state action,\1196\ from 
suit without the State's consent. Ex parte Young\1197\ is a seminal case 
in American constitutional law because it created a fiction by which the 
validity of state statutes and other actions could be challenged by 
suits against state officers as individuals.\1198\

        \1194\For example, one of the cases decided in Brown v. Board of 
Education, 347 U.S. 483 (1954), came from the Supreme Court of Delaware. 
In Scott v. Germano, 381 U.S. 407 (1965), the Court set aside an order 
of the district court refusing to defer to the state court which was 
hearing an apportionment suit and said: ``The power of the judiciary of 
a State to require valid reapportionment or to formulate a valid 
redistricting plan has not only been recognized by this Court but 
appropriate action by the States has been specifically encouraged.'' See 
also Scranton v. Drew, 379 U.S. 40 (1964).
        \1195\By its terms, the Eleventh Amendment bars only suits 
against a State by citizens of other States, but in Hans v. Louisiana, 
134 U.S. 1 (1890), the Court deemed it to embody principles of sovereign 
immunity which applied to unconsented suits by its own citizens.
        \1196\In re Ayers, 123 U.S. 443 (1887).
        \1197\209 U.S. 123 (1908).
        \1198\The fiction is that while the official is a state actor 
for purposes of suit against him, the claim that his action is 
unconstitutional removes the imprimatur of the State that would shield 
him under the Eleventh Amendment. Id., 159-160.

        Conflict between federal and state courts is inevitable when the 
federal courts are open to persons complaining about unconstitutional or 
unlawful state action which could as well be brought in the state courts 
and perhaps is so brought by other persons, but the various rules of 
restraint flowing from the concept of comity reduce federal interference 
here some considerable degree. It is rather in three fairly well defined 
areas that institutional conflict is most pronounced.

        Federal Restraint of State Courts by Injunctions.--Even where 
the federal anti-injunction law is inapplicable, or where the question 
of application is not reached,\1199\ those seeking to enjoin state court 
proceedings must overcome substantial prudential barriers, among them 
the abstention doctrine\1200\ and more important

[[Page 805]]
than that the equity doctrine that suits in equity are to be withheld 
``in any case where plain, adequate and complete remedy may be had at 
law.''\1201\ The application of this latter principle has been most 
pronounced in the reluctance of federal courts to interfere with a 
State's good faith enforcement of its criminal law. Here, the Court has 
required of a litigant seeking to bar threatened state prosecution not 
only a showing of irreparable injury which is both great and immediate 
but an inability to defend his constitutional right in the state 
proceeding. Certain types of injury, such as the cost, anxiety, and 
inconvenience of having to defend against a single criminal prosecution, 
are insufficient to be considered irreparable in this sense. Even if a 
state criminal statute is unconstitutional, a person charged under it 
usually has an adequate remedy at law by raising his constitutional 
defense in the state trial.\1202\ The policy has never been stated as an 
absolute, recognizing that in exceptional and limited circumstances, 
such as the existence of factors making it impossible for a litigant to 
protect his federal constitutional rights through a defense of the state 
criminal charges or the bringing of multiple criminal charges, a federal 
court injunction could properly issue.\1203\

        \1199\28 U.S.C. Sec. 2283 may be inapplicable because no state 
court proceeding is pending or because the action is brought under 42 
U.S.C. Sec. 1983. Its application may never be reached because a court 
may decide that equitable principles do not justify injunctive relief. 
Younger v. Harris, 401 U.S. 37, 54 (1971).
        \1200\Supra, pp.798-800.
        \1201\The quoted phrase setting out the general principle is 
from the Judiciary Act of 1789, Sec. 16, 1 Stat. 82.
        \1202\The older cases areFenner v. Boykin 271 U.S. 240 (1926); 
Spielman Motor Sales Co. v. Dodge, 295 U.S. 89 (1935); Beal v. Missouri 
Pac. R. Co., 312 U.S. 45 (1941); Watson v. Buck, 313 U.S. 387 (1941); 
Williams v. Miller, 317 U.S. 599 (1942); Douglas v. City of Jeannette, 
319 U.S. 157 (1943). There is a stricter rule against federal restraint 
of the use of evidence in state criminal trials. Stefanelli v. Minard, 
342 U.S. 117 (1951); Pugach v. Dollinger, 365 U.S. 458 (1961). The Court 
reaffirmed the rule in Perez v. Ledesma, 401 U.S. 82 (1971). State 
officers may not be enjoined from testifying or using evidence gathered 
in violation of federal constitutional restrictions, Cleary v. Bolger, 
371 U.S. 392 (1963), but the rule is unclear with regard to federal 
officers and state trials. Compare Rea v. United States, 350 U.S. 214 
(1956), with Wilson v. Schnettler, 365 U.S. 381 (1961).
        \1203\E.g., Douglas v. City of Jeannette, 319 U.S. 157, 163-164 
(1943); Stefanelli v. Minard, 342 U.S. 117, 122 (1951). See also Terrace 
v. Thompson, 263 U.S. 197, 214 (1923), Future criminal proceedings were 
sometimes enjoined. E.g., Hague v. CIO, 307 U.S. 496 (1939).

        In Dombrowski v. Pfister,\1204\ the Court appeared to change the 
policy somewhat. The case on its face contained allegations and offers 
of proof that may have been sufficient alone to establish the 
``irreparable injury'' justifying federal injunctive relief.\1205\ But 

[[Page 806]]
formulation of standards by Justice Brennan for the majority placed 
great emphasis upon the fact that the state criminal statute in issue 
regulated expression. Any criminal prosecution under a statute 
regulating expression might of itself inhibit the exercise of First 
Amendment rights, it was said, and prosecution under an overbroad\1206\ 
statute like the one in this case might critically impair exercise of 
those rights. The mere threat of prosecution under such an overbroad 
statute ``may deter . . . almost as potently as the actual application 
of sanctions.''

        \1204\380 U.S. 479 (1965). Grand jury indictments had been 
returned after the district court had dissolved a preliminary 
injunction, erroneously in the Supreme Court's view, so that it took the 
view that no state proceedings were pending as of the appropriate time. 
For a detailed analysis of the case, see Fiss, Dombrowski, 86 Yale L. J. 
1103 (1977).
        \1205\``[T]he allegations in this complaint depict a situation 
in which defense of the State's criminal prosecution will not assure 
adequate vindication of constitutional rights. They suggest that a 
substantial loss of or impairment of freedoms of expression will occur 
if appellants must await the state court's disposition and ultimate 
review in this Court of any adverse determination. These allegations, if 
true, clearly show irreparable injury.'' Id., 380 U.S., 485-486.
        \1206\That is, a statute which reaches both protected and 
unprotected expression and conduct.

        In such cases, courts could no longer embrace the assumption 
that defense of the criminal prosecution ``will generally assure ample 
vindication of constitutional rights,'' because either the mere threat 
of prosecution or the long wait between prosecution and final 
vindication could result in a ``chilling effect'' upon First Amendment 
rights.\1207\ The principle apparently established by the Court was two-
phased: a federal court should not abstain when there is a facially 
unconstitutional statute infringing upon speech and application of that 
statute to discourage protected activities, and the court should further 
enjoin the state proceedings when there is prosecution or threat of 
prosecution under an overbroad statute regulating expression if the 
prosecution or threat of prosecution chills the exercise of freedom of 
expression.\1208\ These formulations were reaffirmed in Zwickler v. 
Koota,\1209\ in which a declaratory judgment was sought with regard to a 
statute prohibiting anonymous election literature. Abstention was deemed 
improper,\1210\ and further it was held that adjudication for purposes 
of declaratory judgment is not hemmed in by considerations attendant 
upon injunctive relief.\1211\

        \1207\Id., 486-487.
        \1208\See Cameron v. Johnson, 381 U.S. 741 (1965); Cameron v. 
Johnson, 390 U.S. 611 (1968.)
        \1209\389 U.S. 241 (1967). The state criminal conviction had 
been reversed by a state court on state law grounds and no new charge 
had been instituted.
        \1210\It was clear that the statute could not be construed by a 
state court and thus a federal constitutional decision rendered 
unnecessary. Id., 248-252.
        \1211\Id., 254.

        The aftermath of the Dombrowski-Zwickler decisions was a 
considerable expansion of federal-court adjudication of constitutional 
attack through requests for injunctive and declaratory relief, which 
gradually spread out from First Amendment areas to other 
constitutionally-protected activities.\1212\ However, these develop

[[Page 807]]
ments were highly controversial and after three arguments on the issue, 
the Court in a series of cases receded from its position and 
circumscribed the discretion of the lower federal courts to a 
considerable and ever-broadening degree.\1213\ The important difference 
between this series of cases and Dombrowski-Zwickler was that in the 
latter for particular reasons there were no prosecutions pending whereas 
in the former there were. Nevertheless, the care with which Justice 
Black for the majority undertook to distinguish and limit Dombrowski 
signified a limitation of its doctrine, which proved partially true in 
later cases.

        \1212\Maraist, Federal Injunctive Relief Against State Court 
Proceedings: The Significance of Dombrowski, 48 Tex. L. Rev. 535 (1970).
        \1213\Younger v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell, 
401 U.S. 66 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Perez v. 
Ledesma, 401 U.S. 82 (1971); Dyson v. Stein, 401 U.S. 200 (1971); Byrne 
v. Karalexis, 401 U.S. 216 (1971).

        Justice Black reviewed and reaffirmed the traditional rule of 
reluctance to interfere with state court proceedings except in 
extraordinary circumstances. The holding in Dombrowski, as distinguished 
from some of the language, did not change the general rule, because 
extraordinary circumstances had existed. Thus, Justice Black, with 
considerable support from the other Justices,\1214\ went on to affirm 
that where a criminal proceeding is already pending in a state court, if 
it is a single prosecution about which there is no allegation that it 
was brought in bad faith or that it was one of a series of repeated 
prosecutions which would be brought, and the defendant may put in issue 
his federal-constitutional defense at the trial, federal injunctive 
relief is improper, even if it is alleged that the statute on which the 
prosecution was based regulated expression and was overbroad.

        \1214\Only Justice Douglas dissented. Id., 58. Justices Brennan, 
White, and Marshall generally concurred in somewhat restrained fashion. 
Id., 56, 75, 93.

        Many statutes regulating expression were valid and some 
overbroad statutes could be validly applied and attacks on facial 
unconstitutionality abstracted from concrete factual situations was not 
a sound judicial method. ``It is sufficient for purposes of the present 
case to hold, as we do, that the possible unconstitutionality of a 
statute `on its face' does not in itself justify an injunction against 
good faith attempts to enforce it, and that appellee Harris has failed 
to make any showing of bad faith, harassment, or any other unusual 
circumstances that would call for equitable relief.''\1215\

        \1215\Id., 54. On bad faith enforcement, see id., 56 (Justices 
Stewart and Harlan concurring); 97 (Justices Brennan, White, and 
Marshall concurring in part and dissenting in part). For an example, see 
Universal Amusement Co. v. Vance, 559 F. 2d 1286, 1293-1301 (5th Cir. 
1977), affd. per curiam sub nom., Dexter v. Butler, 587 F. 2d 176 (5th 
Cir. (en banc), cert. den., 442 U.S. 929 (1979).


[[Page 808]]

        The reason for the principle, said Justice Black, flows from 
``Our Federalism,'' which requires federal courts to defer to state 
courts when there are proceedings pending in them.\1216\

        \1216\Id., 44.

        Moreover, in a companion case, the Court held that when 
prosecutions are pending in state court, ordinarily the propriety of 
injunctive and declaratory relief should be judged by the same 
standards.\1217\ A declaratory judgment is as likely to interfere with 
state proceedings as an injunction, whether the federal decision be 
treated as res judicata or whether it is viewed as a strong precedent 
guiding the state court. Additionally, ``the Declaratory Judgment Act 
provides that after a declaratory judgment is issued the district court 
may enforce it by granting `further necessary or proper relief' and 
therefore a declaratory judgment issued while state proceedings are 
pending might serve as the basis for a subsequent injunction against 
those proceedings to `protect or effectuate' the declaratory judgment, 
28 U.S.C. Sec. 2283, and thus result in a clearly improper interference 
with the state proceedings.''\1218\

        \1217\Samuels v. Mackell, 401 U.S. 66 (1971). The holding was in 
line with Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943).
        \1218\Samuels v. Mackell, 401 U.S. 66, 72 (1971).

        When, however, there is no pending state prosecution, the Court 
is clear, ``Our Federalism'' is not offended if a plaintiff in a federal 
court is able to demonstrate a genuine threat of enforcement of a 
disputed criminal statute, whether the statute is attacked on its face 
or as applied, and becomes entitled to a federal declaratory 
judgment.\1219\ And, in fact, when no state prosecution is pending, a 
federal plaintiff need not demonstrate the existence of the Younger 
factors to justify the issuance of a preliminary or permanent injunction 
against prosecution under a disputed state statute.\1220\

        \1219\Steffel v. Thompson, 415 U.S. 452 (1974).
        \1220\Doran v. Salem Inn, 422 U.S. 922 (1975) (preliminary 
injunction may issue to preserve status quo while court considers 
whether to grant declaratory relief); Wooley v. Maynard, 430 U.S. 705 
(1977) (when declaratory relief is given, permanent injunction may be 
issued if necessary to protect constitutional rights). However, it may 
not be easy to discern when state proceedings will be deemed to have 
been instituted prior to the federal proceeding. E.g., Hicks v. Miranda, 
422 U.S. 332 (1975); Huffman v. Pursue. Ltd., 420 U.S. 592 (1975); see 
also Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 238 (1984).

        Of much greater significance is the extension of Younger to 
civil proceedings in state courts\1221\ and to state administrative

[[Page 809]]
proceedings of a judicial nature.\1222\ The principle is that the 
Younger principle applies whenever in civil or administrative 
proceedings important state interests are involved which the State, or 
its officers or agency, is seeking to promote. Indeed, the presence of 
important state interests in state proceedings has been held to raise 
the Younger bar to federal relief in proceedings which are entirely 
between private parties.\1223\ Comity, the Court said, requires 
abstention when States have ``important'' interests in pending civil 
proceedings between private parties,\1224\ as long as litigants are not 
precluded from asserting federal rights. Thus, the Court explained, 
``proper respect for the ability of state courts to resolve federal 
questions presented in state court litigation mandates that the federal 
court stay its hand.''\1225\

        \1221\ Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Judice v. 
Vail, 430 U.S. 327 (1977); Trainor v. Hernandez, 431 U.S. 434 (1977); 
Moore v. Sims, 442 U.S. 415 (1979); Middlesex County Ethics Committee v. 
Garden State Bar Assn, 457 U.S. 423 (1982).
        \1222\Ohio Civil Rights Comm. v. Dayton Christian Schools, Inc., 
477 U.S. 619 (1986). The ``judicial in nature'' requirement is more 
fully explicated in New Orleans Public Service, Inc. v. Council of City 
of New Orleans, 491 U.S. 350, 366-373 (1989).
        \1223\Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).
        \1224\``[T]he State's interest in protecting `the authority of 
the judicial system, so that its orders and judgments are not rendered 
nugatory''' was deemed sufficient. Id., 14 n. 12 (quoting Judice v. 
Vail, 430U.S. 327, 336 n. 12 (1977)).
        \1225\Id., 14.

        Habeas Corpus: Scope of the Writ.--At the English common law, 
habeas corpus was available to attack pretrial detention and confinement 
by executive order; it could not be used to question the conviction of a 
person pursuant to the judgment of a court with jurisdiction over the 
person. That common law meaning was applied in the federal courts.\1226\ 
Expansion began after the Civil War through more liberal court 
interpretation of ``jurisdiction.'' Thus, one who had already completed 
one sentence on a conviction was released from custody on a second 
sentence on the ground that the court had lost jurisdiction upon 
completion of the first sentence.\1227\ Then, the Court held that the 
constitutionality of the statute upon which a charge was based could be 
examined on habeas, because an unconstitutional statute was said to 
deprive the trial court of its jurisdiction.\1228\ Other cases expanded 
the want-of-jurisdiction rationale.\1229\ But the present status of the 
writ of

[[Page 810]]
habeas corpus may be said to have been started in its development in 
Frank v. Mangum,\1230\ in which the Court reviewed on habeas a murder 
conviction in a trial in which there was substantial evidence of mob 
domination of the judicial process. This issue had been considered and 
rejected by the state appeals court. The Supreme Court indicated that, 
though it might initially have had jurisdiction, the trial court could 
have lost it if mob domination rendered the proceedings lacking in due 

        \1226\Ex parte Watkins, 3 Pet. (28 U.S.) 193 (1830) (Chief 
Justice Marshall); cf. Ex parte Parks, 93 U.S. 18 (1876). But see Fay v. 
Noia, 372 U.S. 391, 404-415 (1963). It should be noted that the 
expansive language used when Congress in 1867 extended the habeas power 
of federal courts to state prisoners ``restrained of . . . liberty in 
violation of the constitution, or of any treaty or law of the United 
States. . . .'', 14 Stat. 385, could have encouraged an expansion of the 
writ to persons convicted after trial.
        \1227\Ex parte Lange, 18 Wall. (85 U.S.) 163 (1874).
        \1228\Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Royall, 
117 U.S. 241 (1886); Crowley v. Christensen, 137 U.S. 86 (1890); Yick Wo 
v. Hopkins, 118 U.S. 356 (1886).
        \1229\Ex parte Wilson, 114 U.S. 417 (1885); Nielsen, Petitioner, 
131 U.S. 176 (1889); In re Snow, 120 U.S. 274 (1887); but see Ex parte 
Parks, 93 U.S. 18 (1876); Ex parte Bigelow, 113 U.S. 328 (1885). It is 
possible that the Court expanded the office of the writ because its 
reviewing power over federal convictions was closely limited. F. 
Frankfurter & J. Landis, op. cit., n. 12, 109-113. Once such review was 
granted, the Court began to restrict the use of the writ. E.g., Glasgow 
v. Moyer, 225 U.S. 420 (1912); In re Lincoln, 202 U.S. 178 (1906); In re 
Morgan, 203 U.S. 96 (1906).
        \1230\237 U.S. 309 (1915).

        Further, in order to determine if there had been a denial of due 
process, a habeas court should examine the totality of the process, 
including the appellate proceedings. Since Frank's claim of mob 
domination was reviewed fully and rejected by the state appellate court, 
he had been afforded an adequate corrective process for any denial of 
rights, and his custody was not in violation of the Constitution. Then, 
eight years later, in Moore v. Dempsey,\1231\ involving another 
conviction in a trial in which the court was alleged to have been 
influenced by a mob and in which the state appellate court had heard and 
rejected Moore's contentions, the Court directed that the federal 
district judge himself determine the merits of the petitioner's 

        \1231\261 U.S. 86 (1923).

        Moreover, the Court shortly abandoned its emphasis upon want of 
jurisdiction and held that the writ was available to consider 
constitutional claims as well as questions of jurisdiction.\1232\ The 
landmark case was Brown v. Allen,\1233\ in which the Court laid

[[Page 811]]
down several principles of statutory construction of the habeas statute. 
First, all federal constitutional questions raised by state prisoners 
are cognizable in federal habeas. Second, a federal court is not bound 
by state court judgments on federal questions, even though the state 
courts may have fully and fairly considered the issues. Third, a federal 
habeas court may inquire into issues of fact as well as of law, although 
the federal court may defer to the state court if the prisoner received 
an adequate hearing. Fourth, new evidentiary hearings must be held when 
there are unusual circumstances, when there is a ``vital flaw'' in the 
state proceedings, or when the state court record is incomplete or 
otherwise inadequate.

        \1232\Waley v. Johnston, 316 U.S. 101 (1942). See also Johnson 
v. Zerbst, 304 U.S. 458 (1938); Walker v. Johnson, 312 U.S. 275 (1941). 
The way one reads the history of the developments is inevitably a 
product of the philosophy one brings to the subject. In addition to the 
recitations cited in other notes, compare Wright v. West, 112 S.Ct. 
2482, 2486-2487 & n. 3 (1992) (Justice Thomas for a plurality of the 
Court), with id., 2493-2495 (Justice O'Connor concurring).
        \1233\344 U.S. 443 (1953). Brown is commonly thought to rest on 
the assumption that federal constututional rights cannot be adequately 
protected only by direct Supreme Court review of state court judgments 
but that independent review, on habeas, must rest with federal judges. 
It is, of course, true that Brown coincided with the extension of most 
of the Bill of Rights to the States by way of incorporation and 
expansive interpretation of federal constitutional rights; previously, 
there was not a substantial corpus of federal rights to protect through 
habeas. See Wright v. West, 112 S.Ct. 2482, 2493-2494 (1992) (Justice 
O'Connor concurring). In Fay v. Noia, 372 U.S. 391 (1963), Justice 
Brennan, for the Court, and Justice Harlan, in dissent, engaged in a 
lengthy, informed historical debate about the legitimacy of Brown and 
its premises. Compare id., 401-424, with id., 450-461. See the material 
gathered and cited in Hart & Wechsler, op. cit., n. 250, 1487-1505.

        Almost plenary federal habeas review of state court convictions 
was authorized and rationalized in the Court's famous ``1963 
trilogy.''\1234\ First, the Court dealt with the established principle 
that a federal habeas court is empowered, where a prisoner alleges facts 
which if proved would entitle him to relief, to relitigate facts, to 
receive evidence and try the facts anew, and sought to lay down broad 
guidelines in order to guide district courts as to when they must hold a 
hearing and find facts.\1235\ ``Where the facts are in dispute, the 
federal court in habeas corpus must hold an evidentiary hearing if the 
habeas applicant did not receive a full and fair evidentiary hearing in 
a state court, either at the time of the trial or

[[Page 812]]
in a collateral proceeding.''\1236\ To ``particularize'' this general 
test, the Court went on to hold that an evidentiary hearing must take 
place when (1) the merits of the factual dispute were not resolved in 
the state hearing; (2) the state factual determination is not fairly 
supported by the record as a whole; (3) the fact finding procedure 
employed was not adequate to afford a full and fair hearing; (4) there 
is a substantial allegation of newly discovered evidence; (5) the 
material facts were not adequately developed at the state hearing; or 
(6) for any reason it appears that the state trier of fact did not 
afford the habeas applicant a full and fair fact hearing.\1237\

        \1234\Sanders v. United States, 373 U.S. 1 (1963); Fay v. Noia, 
372 U.S. 391 (1963); Townsend v. Sain, 372 U.S. 293 (1963). These cases 
dealt, respectively, with the treatment to be accorded a habeas petition 
in the three principal categories in which they come to the federal 
court: when a state court has rejected petitioner's claims on the 
merits, when a state court has refused to hear petitioner's claims on 
the merits because she has failed properly or timely to present them, or 
when the petition is a second or later petition raising either old or 
new, or mixed, claims. Of course, as will be demonstrated infra, these 
cases have now been largely drained of their force.
        \1235\Townsend v. Sain, 372 U.S. 293, 310-312 (1963). If the 
district judge concluded that the habeas applicant was afforded a full 
and fair hearing by the state court resulting in reliable findings, the 
Court said, he may, and ordinarily should, defer to the state 
factfinding. Id., 318. Under the 1966 statutory revision, a habeas court 
must generally presume correct a state court's written findings of fact 
from a hearing to which the petitioner was a party. A state finding 
cannot be set aside merely on a preponderance of the evidence and the 
federal court granting the writ must include in its opinion the reason 
it found the state findings not fairly supported by the record or the 
existence of one or more listed factors justifying disregard of the 
factfinding. P.L. 89-711, 80 Stat. 1105, 28 U.S.C. Sec. 2254(d). See 
Sumner v. Mata, 449 U.S. 539 (1981); Sumner v. Mata, 455 U.S. 591 
(1982); Marshall v. Lonberger, 459 U.S. 422 (1983); Patton v. Yount, 467 
U.S. 1025 (1984); Parker v. Dugger, 498 U.S. 308 (1991); Burden v. Zant, 
498 U.S. 433 (1991). The presumption of correctness does not apply to 
questions of law or to mixed questions of law and fact. Miller v. 
Fenton, 474 U.S. 104, 110-116 (1985). However, in Wright v. West, 112 
S.Ct. 2482 (1992), the Justices argued inconclusively whether 
deferential review of questions of law or especially of law and fact 
should be adopted.
        \1236\Townsend v. Sain, 372 U.S. 293, 312 (1963). The Court was 
unanimous on the statement, but it divided 5-to-4 on application.
        \1237\Id., 313-318. Congress in 1966 codified the factors in 
somewhat different form but essentially codified Townsend. P.L. 89-711, 
80 Stat. 1105, 28 U.S.C. Sec. 2254. The present Court is of the view 
that Congress neither codified Townsend nor precluded the Court from 
altering the Townsend standards. Keeney v. Tamayo-Reyes, 112 S.Ct. 1715, 
1720 n. 5 (1992). Compare id., 1725-1727 (Justice O'Connor dissenting). 
Keeney formally overruled part of Townsend. Id., 1717.

        Second, Sanders v. United States\1238\ dealt with two 
interrelated questions: the effects to be given successive petitions for 
the writ, when the second or subsequent application presented grounds 
previously asserted or grounds not theretofore raised. Emphasizing that 
``[c]onventional notions of finality of litigation have no place where 
life or liberty is at stake and infringement of constitutional rights is 
alleged,''\1239\ the Court set out generous standards for consideration 
of successive claims. As to previously asserted grounds, the Court held 
that controlling weight may be given to a prior denial of relief if (1) 
the same ground presented was determined adversely to the applicant 
before, (2) the prior determination was on the merits, and (3) the ends 
of justice would not be served by reaching the merits of the subsequent 
application, so that the habeas court might but was not obligated to 
deny relief without considering the claim on the merits.\1240\ With 
respect to grounds not

[[Page 813]]
previously asserted, a federal court considering a successive petition 
could refuse to hear the new claim only if it decided the petitioner had 
deliberately bypassed the opportunity in the prior proceeding to raise 
it; if not, ``[n]o matter how many prior applications for federal 
collateral relief a prisoner has made,'' the court must consider the 
merits of the new claim.\1241\

        \1238\373 U.S. 1 (1963). Sanders was a Sec. 2255 case, a federal 
prisoner petitioning for postconviction relief. The Court applied the 
same liberal rules with respect to federal prisoners as it did for 
state. See Kaufman v. United States, 394 U.S. 217 (1969). As such, the 
case has also been eroded by subsequent cases. E.g., Davis v. United 
States, 411 U.S. 233 (1973); United States v. Frady, 456 U.S. 152 
        \1239\Id., 373 U.S., 8. The statement accorded with the 
established view that principles of res judicata were not applicable in 
habeas. E.g., Price v. Johnston, 334 U.S. 266 (1948); Wong Doo v. United 
States, 265 U.S. 239 (1924); Salinger v. Loisel, 265 U.S. 224 (1924). 
Congress in 1948 had appeared to adopt some limited version of res 
judicata for federal prisoners but not for state prisoners, Act of June 
25, 1948, 62 Stat. 965, 967, 28 U.S.C. Sec. Sec. 2244, 2255, but the 
Court in Sanders held the same standards applicable and denied the 
statute changed existing caselaw. Id., 373 U.S., 11-14. But see id., 27-
28 (Justice Harlan dissenting).
        \1240\Id., 15. In codifying the Sanders standards in 1966, P.L. 
89-711, 80 Stat. 1104, 28 U.S.C. Sec. 2244(b), Congress omitted the 
``ends of justice'' language. Although it was long thought that the 
omission probably had no substantive effect, this may not be the case. 
Kuhlmann v. Wilson, 477 U.S. 436 (1986).
        \1241\Id., 373 U.S., 17-19.

        Third, the most controversial of the 1963 cases, Fay v. 
Noia,\1242\ dealt with the important issue of state defaults, of, that 
is, what the effect on habeas is when a defendant in a state criminal 
trial has failed to raise in a manner in accordance with state procedure 
a claim which he subsequently wants to raise on habeas. If, for example, 
a defendant fails to object to the admission of certain evidence on 
federal constitutional grounds in accordance with state procedure and 
within state time constraints, the state courts may therefore simply 
refuse to address the merits of the claim, and the State's ``independent 
and adequate state ground'' bars direct federal review of the 
claim.\1243\ Whether a similar result prevailed upon habeas divided the 
Court in Brown v. Allen,\1244\ in which the majority held that a 
prisoner, refused consideration of his appeal in state court because his 
papers had been filed a day late, could not be heard on habeas because 
of his state procedural default. The result was changed in Fay v. Noia, 
in which the Court held that the adequate and independent state ground 
doctrine was a limitation only upon the Court's appellate review, but 
that it had no place in habeas. A federal court has power to consider 
any claim that has been procedurally defaulted in state courts.\1245\

        \1242\372 U.S. 391 (1963). Fay was largely obliterated over the 
years, beginning with Davis v. United States, 411 U.S. 233 (1973), a 
federal-prisoner postconviction relief case, and Wainwright v. Sykes, 
433 U.S. 72 (1977), but it was not formally overruled until Coleman v. 
Thompson, 501 U.S. 722, 744-751 (1991).
        \1243\E.g., Murdock v. City of Memphis, 20 Wall. (87 U.S.) 590 
(1875); Herb v. Pitcairn, 324 U.S. 117 (1945). In the habeas context, 
the procedural-bar rules are ultimately a function of the requirement 
that petitioners first exhaust state avenues of relief before coming to 
federal court.
        \1244\344 U.S. 443 (1953).
        \1245\Fay v. Noia, 372 U.S. 391, 424-434 (1963).

        Still, the Court recognized that the States had legitimate 
interests that were served by their procedural rules, and that it was 
important that state courts have the opportunity to afford a claimant 
relief to which he might be entitled. Thus, a federal court had 
discretion to deny a habeas petitioner relief if it found that he had 
deliberately bypassed state procedure; the discretion could be exercised 
only if the court found that the prisoner had intentionally waived his 
right to pursue his state remedy.\1246\

        \1246\Id., 438-440.

[[Page 814]]

        Liberalization of the writ thus made it possible for convicted 
persons who had fully litigated their claims at state trials and on 
appeal, who had because of some procedural default been denied the 
opportunity to have their claims reviewed, or who had been at least once 
heard on federal habeas, to have the chance to present their grounds for 
relief to a federal habeas judge. In addition to opportunities to 
relitigate the facts and the law relating to their convictions, 
prisoners could as well take advantage of new constitutional decisions 
that were retroactive. The filings in federal courts increased year by 
year, but the numbers of prisoners who in fact obtained either release 
or retrial remained quite small. A major effect, however, was to 
exacerbate the feelings of state judges and state law enforcement 
officials and to stimulate many efforts in Congress to enact restrictive 
habeas amendments.\1247\ While the efforts were unsuccessful, complaints 
were received more sympathetically in a newly-constituted Supreme Court 
and more restrictive rulings ensued.

        \1247\In 1961, state prisoner habeas filings totaled 1,020, in 
1965, 4,845, in 1970, a high (to date) of 9,063, in 1975, 7,843 in 1980, 
8,534 in 1985, 9,045 in 1986. On relief afforded, no reliable figures 
are available, but estimates indicate that at most 4% of the filings 
result in either release or retrial. C. Wright, A. Miller, & E. Cooper, 
Federal Practice and Procedure (1988 & supps.), Sec. 4261, at 284-291.

        The discretion afforded the Court was sounded by Justice 
Rehnquist, who, after reviewing the case law on the 1867 statute, 
remarked that the history ``illustrates this Court's historic 
willingness to overturn or modify its earlier views of the scope of the 
writ, even where the statutory language authorizing judicial action has 
remained unchanged.''\1248\ The emphasis from early on has been upon the 
equitable nature of the habeas remedy and the judiciary's responsibility 
to guide the exercise of that remedy in accordance with equitable 
principles; thus, the Court time and again underscores that the federal 
courts have plenary power under the statute

[[Page 815]]
to implement it to the fullest while the Court's decisions may deny them 
the discretion to exercise the power.\1249\

        \1248\Wainwright v. Sykes, 433 U.S. 72, 81 (1977). The present 
Court's emphasis in habeas cases is, of course, quite different from 
that of the Court in the 1963 trilogy. Now, the Court favors decisions 
that promote finality, comity, judicial economy, and channeling the 
resolution of claims into the most appropriate forum. Keeney v. Tamayo-
Reyes, 112 S.Ct. 1715, 1719-1720 (1992). Overall, federalism concerns 
are critical. See Coleman v. Thompson, 501 U.S. 722, 726 (1991) (``This 
is a case about federalism.'' First sentence of opinion). The seminal 
opinion on which subsequent cases have drawn is Justice Powell's 
concurrence in Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973). He 
suggested that habeas courts should entertain only those claims that go 
to the integrity of the fact-finding process, thus raising questions of 
the value of a guilty verdict, or, more radically, that only those 
prisoners able to make a credible showing of ``factual innocence'' could 
be heard on habeas. Id., 256-258, 274-275. As will be evident infra, 
some form of innocence standard now is pervasive in much of the Court's 
habeas jurisprudence.
        \1249\Id., 83; Stone v. Powell, 428 U.S. 465, 495 n. 37 (1976); 
Francis v. Henderson, 425 U.S. 536, 538 (1976); Fay v. Noia, 372 U.S. 
391, 438 (1963). The dichotomy between power and discretion goes all the 
way back to the case imposing the rule of exhaustion of state remedies. 
Ex parte Royall, 117 U.S. 241, 251 (1886).

        Change has occurred in several respects in regard to access to 
and the scope of the writ. It is sufficient to say that the more recent 
rulings have eviscerated the content of the 1963 trilogy and that Brown 
v. Allen itself is threatened with extinction.

        First, the Court in search and seizure cases has returned to the 
standard of Frank v. Mangum, holding that where the state courts afford 
a criminal defendant the opportunity for a full and adequate hearing on 
his Fourth Amendment claim, his only avenue of relief in the federal 
courts is to petition the Supreme Court for review and that he cannot 
raise those claims again in a habeas petition.\1250\ Grounded as it is 
in the Court's dissatisfaction with the exclusionary rule, the case has 
not since been extended to other constitutional grounds,\1251\ but the 
rationale of the opinion suggests the likelihood of reaching other 
exclusion questions.\1252\

        \1250\Stone v. Powell, 428 U.S. 465 (1976). The decision is 
based as much on the Court's dissatisfaction with the exclusionary rule 
as with its desire to curb habeas. Holding that the purpose of the 
exclusionary rule is to deter unconstitutional searches and seizures 
rather than to redress individual injuries, the Court reasoned that no 
deterrent purpose was advanced by applying the rule on habeas, except to 
encourage state courts to give claimants a full and fair hearing. Id., 
        \1251\Stone does not apply to a Sixth Amendment claim of 
inneffective assistance of counsel in litigating a search and seizure 
claim. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). See also 
Rose v. Mitchell, 443 U.S. 545 (1979) (racial discrimination in 
selection of grand jury foreman); Jackson v. Virginia, 443 U.S. 307 
(1979) (insufficient evidence to satisfy reasonable doubt standard).
        \1252\Issues of admissibility of confessions (Miranda 
violations) and eyewitness identifications are obvious candidates. See, 
e.g., Duckworth v. Eagan, 492 U.S. 195, 205 (1989) (Justice O'Connor 
concurring); Brewer v. Williams, 430 U.S. 387, 413-414 (1977) (Justice 
Powell concurring), and id., 415 (Chief Justice Burger dissenting); 
Wainwright v. Sykes, 433 U.S. 72, 87 n. 11 (1977) (reserving Miranda).

        Second, the Court has formulated a ``new rule'' exception to 
habeas cognizance. That is, subject to two exceptions,\1253\ a case 
decided after a petitioner's conviction and sentence became final may 
not be the predicate for federal habeas relief if the case announces

[[Page 816]]
or applies a ``new rule.''\1254\ A decision announces a new rule ``if 
the result was not dictated by precedent existing at the time the 
defendant's conviction became final.''\1255\ If a rule ``was susceptible 
to debate among reasonable minds,'' it could not have been dictated by 
precedent, and therefore it must be classified as a ``new rule.''\1256\

        \1253\The first exception permits the retroactive application on 
habeas of a new rule if the rule places a class of private conduct 
beyond the power of the State to proscribe or addresses a substantive 
categorical guarantee accorded by the Constitution. The rule must, to 
say it differently, either decriminalize a class of conduct or prohibit 
the imposition of a particular punishment on a particular class of 
persons. The second exception would permit the application of 
``watershed rules of criminal procedure'' implicating the fundamental 
fairness and accuracy of the criminal proceeding. Saffle v. Parks, 494 
U.S. 484, 494-495 (1990) (citing cases); Sawyer v. Smith, 497 U.S. 227, 
241-245 (1990).
        \1254\Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion); 
Penry v. Lynaugh, 492 U.S. 302, 313-319 (1989).
        \1255\Butler v. McKellar, 494 U.S. 407, 412 (1990) (quoting 
Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (quoting Teague v. Lane, 489 
U.S. 288, 314 (1989) (plurality opinion) (emphasis in original)).
        \1256\Id., 415. See also Stringer v. Black, 112 S.Ct. 1130, 1135 
(1992). This latter case found that two decisions relied on by 
petitioner merely drew on existing precedent and so did not establish a 
new rule.

        Third, the Court has largely maintained the standards of 
Townsend v. Sain, as embodied in somewhat modified form in statute, with 
respect to when federal judges must conduct an evidentiary 
hearing.\1257\ However, one Townsend factor, not expressly set out in 
the statute, has been overturned, in order to bring the case law into 
line with other decisions. Townsend had held that a hearing was required 
if the material facts were not adequately developed at the state-court 
hearing. If the defendant had failed to develop the material facts in 
the state court, however, the Court held that unless he had 
``deliberately bypass[ed]'' that procedural outlet he was still entitled 
to the hearing.\1258\ The Court overruled that point and substituted a 
much-stricter ``cause-and-prejudice'' standard.\1259\

        \1257\Supra, nn. 1235-1237.
        \1258\Townsend v. Sain, 372 U.S. 293, 313, 317 (1963), imported 
the ``deliberate bypass'' standard from Fay v. Noia, 372 U.S. 391, 438 
        \1259\Keeney v. Tamayo-Reyes, 112 S.Ct. 1715 (1992). This 
standard is imported from the cases abandoning Fay v. Noia and is 
discussed infra, nn.1266-1270.

        Fourth, the Court has significantly stiffened the standards 
governing when a federal habeas court should entertain a second or 
successive petition filed by a state prisoner, which was dealt with by 
Sanders v. United States.\1260\ A successive petition may be dismissed 
if the same ground was determined adversely to petitioner previously, 
the prior determination was on the merits, and ``the ends of justice'' 
would not be served by reconsideration. It is with the latter element 
that the Court has become more restrictive. A plurality in Kuhlmann v. 
Wilson\1261\ argued that the ``ends of justice'' standard would be met 
only if a petitioner supplemented her constitutional claim with a 
colorable showing of factual innocence. While the Court has not 
expressly adopted this standard, a later

[[Page 817]]
capital case utilized it, holding that a petitioner sentenced to death 
could escape the bar on successive petitions by demonstrating ``actual 
innocence'' of the death penalty by showing by clear and convincing 
evidence that no reasonable juror would have found the prisoner eligible 
for the death penalty under applicable state law.\1262\

        \1260\373 U.S. 1, 15-18 (1963). The standards are embodied in 28 
U.S.C. Sec. 2244(b).
        \1261\477 U.S. 436 (1986).
        \1262\Sawyer v. Whitley,112 S.Ct. 2514 (1992). Language in the 
opinion suggests that the standard is not limited to capital cases. Id., 

        Even if the subsequent petition alleges new and different 
grounds, a habeas court may dismiss the petition if the prisoner's 
failure to assert those grounds in the prior, or first, petition 
constitutes ``an abuse of the writ.''\1263\ Following the 1963 trilogy 
and especially Sanders, the federal courts had generally followed a rule 
excusing the failure to raise claims in earlier petitions unless the 
failure was a result of ``inexcusable neglect'' or of deliberate 
relinguishment. In McClesky v. Zant,\1264\ the Court construed the 
``abuse of the writ'' language to require a showing of both ``cause and 
prejudice'' before a petitioner may allege in a second or later petition 
a ground or grounds not alleged in the first. In other words, to avoid 
subsequent dismissal, a petitioner must allege in his first application 
all the grounds he may have, unless he can show cause, some external 
impediment, for his failure and some actual prejudice from the error 
alleged. If he cannot show cause and prejudice, the petitioner may be 
heard only if she shows that a ``fundamental miscarriage of justice'' 
will occur, which means she must make a ``colorable showing of factual 

        \1263\The standard is in 28 U.S.C. Sec. 2244(b), along with the 
standard that if a petitioner ``deliberately withheld'' a claim, the 
petition can be dismissed. See also 28 U.S.C. Sec. 2254 Rule 9(b) (judge 
may dismiss successive petition raising new claims if failure to assert 
them previously was an abuse of the writ).
        \1264\499 U.S. 467 (1991).
        \1265\Id., 489-497. On ``cause and prejudice,'' see infra, 
nn.1267-1270. The ``actual innocence'' element runs through the cases 
under all the headings.

        Fifth, the Court abandoned the rules of Fay v. Noia, although it 
was only very recently that it expressly overruled the case.\1266\ Fay, 
it will be recalled, dealt with so-called procedural-bar circumstances; 
that is, if a defendant fails to assert a claim at the proper time or in 
accordance with proper procedure under valid state rules, and if the 
State then refuses to reach the merits of his claim and holds against 
him solely because of the noncompliance with state procedure, when may a 
petitioner present the claim in federal habeas? The answer in Fay was 
that the federal court always had power to review the claim but that it 
had discretion to deny relief to a habeas claimant if it found that the 
prisoner had

[[Page 818]]
intentionally waived his right to pursue his state remedy through a 
``deliberate bypass'' of state procedure.

        \1266\Coleman v. Thompson, 501 U.S. 722, 744-751 (1991).

        That is no longer the law. ``In all cases in which a state 
prisoner has defaulted his federal claims in state court pursuant to an 
independent and adequate state procedural rule, federal habeas review of 
the claims is barred unless the prisoner can demonstrate cause for the 
default and actual prejudice as a result of the alleged violation of 
federal law, or demonstrate that failure to consider the claims will 
result in a fundamental miscarriage of justice. Fay was based on a 
conception of federal/state relations that undervalued the importance of 
state procedural rules.''\1267\ The ``miscarriage-of-justice'' element 
is probably limited to cases in which actual innocence or actual 
impairment of a guilty verdict can be shown.\1268\ The concept of 
``cause'' excusing failure to observe a state rule is extremely narrow; 
``the existence of cause for procedural default must ordinarily turn on 
whether the prisoner can show that some objective factor external to the 
defense impeded counsel's efforts to comply with the State's procedural 
rule.''\1269\ As for the ``prejudice'' factor, it is an undeveloped 
concept, but the Court's only case establishes a high barrier.\1270\

        \1267\Coleman v. Thompson, 501 U.S. 722, 750 (1991). The 
standard has been developed in a long line of cases. Davis v. United 
States, 411 U.S. 233 (1973) (under federal rules); Francis v. Henderson, 
425 U.S. 536 (1976); Engle v. Isaac, 456 U.S. 107 (1982); Murray v. 
Carrier, 477 U.S. 478 (1986); Harris v. Reed, 489 U.S. 255 (1989). 
Coleman arose because the defendant's attorney had filed his appeal in 
state court three days late. Wainwright v. Sykes involved the failure of 
defendant to object to the admission of inculpatory statements at the 
time of trial. Engle v. Isaac involved a failure to object at trial to 
jury instructions.
        \1268\E.g., Smith v. Murray, 477 U.S. 527, 538-539 (1986); 
Murray v. Carrier, 477 U.S. 478, 496 (1986).
        \1269\Id., 488. This case held that ineffective assistance of 
counsel is not ``cause'' unless it rises to the level of a Sixth 
Amendment violation. See also Coleman v. Thompson, 501 U.S. 722, 752-757 
(1991) (because petitioner had no right to counsel in state 
postconviction proceeding where error occurred, he could not claim 
constitutionally ineffective assistance of counsel). The actual novelty 
of a constitutional claim at the time of the state court proceeding is 
``cause'' excusing the petitioner's failure to raise it then, Reed v. 
Ross, 468 U.S. 1 (1984), although the failure of counsel to anticipate a 
line of constitutional argument then foreshadowed in Supreme Court 
precedent is insufficient ``cause.'' Engle v. Isaac, 456 U.S. 107 
        \1270\United States v. Frady, 456 U.S. 152, 169 (1982) (under 
federal rules) (with respect to erroneous jury instruction, inquiring 
whether the error ``so infected the entire trial that the resulting 
conviction violates due process'').

        For the future, barring changes in Court membership, other 
curtailing of habeas jurisdiction can be expected. Perhaps the Court 
will impose some form of showing of innocence as a predicate to 
obtaining a hearing. More far reaching would be, as the Court continues 
to emphasize broad federalism concerns, rather than simply comity and 
respect for state courts, an overturning of Brown v. Allen itself and 
the renunciation of any oversight, save for the ex

[[Page 819]]
tremely limited direct review of state court convictions in the Supreme 

        Removal.--In the Judiciary Act of 1789, Congress provided that 
civil actions commenced in the state courts which could have been 
brought in the original jurisdiction of the inferior federal courts 
could be removed by the defendant from the state court to the federal 
court.\1271\ Generally, as Congress expanded the original jurisdiction 
of the inferior federal courts, it similarly expanded removal 
jurisdiction.\1272\ Although there is potentiality for intra-court 
conflict here, of course, in the implied mistrust of state courts' 
willingness or ability to protect federal interests, it is rather with 
regard to the limited areas of removal that do not correspond to federal 
court original jurisdiction that the greatest amount of conflict is 
likely to arise.

        \1271\Sec. 12, 1 Stat. 79. The removal provision contained the 
same jurisdictional amount requirement as the original jurisdictional 
statute. It applied in the main to aliens and defendants not residents 
of the State in which suit was brought.
        \1272\Thus the Act of March 3, 1875, Sec. 2, 18 Stat. 470, 
conferring federal question jurisdiction on the inferior federal courts, 
provided for removal of such actions. The constitutionality of 
congressional authorization for removal is well-established. Chicago & 
N.W. Ry. Co. v. Whitton's Administrator, 13 Wall. (80 U.S.) 270 (1871); 
Tennessee v. Davis, 100 U.S. 257 (1879)); Ames v. Kansas ex rel. 
Johnston, 111 U.S. 449 (1884). See City of Greenwood v. Peacock, 384 
U.S. 808, 833 (1966).

        If a federal officer is sued or prosecuted in a state court for 
acts done under color of law\1273\ or if a federal employee is sued for 
a wrongful or negligent act that the Attorney General certifies was done 
while she was acting within the scope of her employment,\1274\ the 
actions may be removed. But the statute most open to federal-state court 
dispute is the civil rights removal law, which authorizes removal of any 
action, civil or criminal, which is commenced in a state court 
``[a]gainst any person who is denied or cannot enforce in the courts of 
such State a right under any law providing for the equal civil rights of 
citizens of the United States, or of all persons within the jurisdiction 
thereof.''\1275\ In the years after

[[Page 820]]
enactment of this statute, however, the court narrowly construed the 
removal privilege granted,\1276\ and recent decisions for the most part 
confirm this restrictive interpretation,\1277\ so that instances of 
successful resort to the statute are fairly rare.

        \1273\See 28 U.S.C. Sec. 1442. This statute had its origins in 
the Act of February 4, 1815, Sec. 8, 3 Stat. 198 (removal of civil and 
criminal actions against federal customs officers for official acts), 
and the Act of March 2, 1833, Sec. 3, 4 Stat. 633 (removal of civil and 
criminal actions against federal officers on account of acts done under 
the revenue laws), both of which grew out of disputes arising when 
certain States attempted to nullify federal laws, and the Act of March 
3, 1863, Sec. 5, 12 Stat. 756 (removal of civil and criminal actions 
against federal officers for acts done during the existence of the Civil 
War under color of federal authority). In Mesa v. California, 489 U.S. 
121 (1989), the Court held that the statute authorized federal officer 
removal only when the defendant avers a federal defense. See Willingham 
v. Morgan, 395 U.S. 402 (1969).
        \1274\28 U.S.C. Sec. 2679(d), enacted after Westfall v. Erwin, 
484 U.S. 292 (1988).
        \1275\28 U.S.C. Sec. 1443(1). Subsection (2) provides for the 
removal of state court actions ``[f]or any act under color of authority 
derived from any law providing for equal rights, or for refusing to do 
any act on the ground that it would be inconsistent with such law.'' 
This subsection ``is available only to federal officers and to persons 
assisting such officers in the performance of their official duties.'' 
City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966).
        \1276\Strauder v. West Virginia, 100 U.S. 303 (1880); Virginia 
v. Rives, 100 U.S. 313 (1880); Neal v. Delaware, 103 U.S. 370 (1880); 
Bush v. Kentucky, 107 U.S. 110 (1883); Gibson v. Mississippi, 162 U.S. 
565 (1896); Smith v. Mississippi, 162 U.S. 592 (1896); Murray v. 
Louisiana, 163 U.S. 101 (1896); Williams v. Mississippi, 170 U.S. 213 
(1898); Kentucky v. Powers, 201 U.S. 1 (1906).
        \1277\Georgia v. Rachel, 384 U.S. 780 (1966); City of Greenwood 
v. Peacock, 384 U.S. 808 (1966). There was a hiatus of cases reviewing 
removal from 1906 to 1966 because from 1887 to 1964 there was no 
provision for an appeal of an order of a federal court remanding a 
removed case to the state courts. Sec. 901 of the Civil Rights Act of 
1964, 78 Stat. 266, 28 U.S.C. Sec. 1447(d).

        Thus, the Court's position holds, one may not obtain removal 
simply by an assertion that he is being denied equal rights or that he 
cannot enforce the law granting equal rights. Because the removal 
statute requires the denial to be ``in the courts of such State,'' the 
pretrial conduct of police and prosecutors was deemed irrelevant, 
because it afforded no basis for predicting that state courts would not 
vindicate the federal rights of defendants.\1278\ Moreover, in 
predicting a denial of rights, only an assertion founded on a facially 
unconstitutional state statute denying the right in question would 
suffice. From the existence of such a law, it could be predicted that 
defendant's rights would be denied.\1279\ Furthermore, the removal 
statute's reference to ``any law providing for . . . equal rights'' 
covered only laws ``providing for specific civil rights

[[Page 821]]
stated in terms of racial equality.''\1280\ Thus, apparently federal 
constitutional provisions and many general federal laws do not qualify 
as a basis for such removal.\1281\

        \1278\Georgia v. Rachel, 384 U.S. 780, 803 (1966); City of 
Greenwood v. Peacock, 384 U.S. 808, 827 (1966). Justice Douglas in 
dissent, joined by Justices Black, Fortas, and Chief Justice Warren, 
argued that ``in the courts of such State'' modified only ``cannot 
enforce,'' so that one could be denied rights prior to as well as during 
a trial and police and prosecutorial conduct would be relevant. 
Alternately, he argued that state courts could be implicated in the 
denial prior to trial by certain actions. Id., 844-855.
        \1279\Georgia v. Rachel, 384 U.S. 780, 797-802 (1966). Thus, in 
Strauder v. West Virginia, 100 U.S. 303 (1880), African-Americans were 
excluded by statute from service on grand and petit juries, and it was 
held that a black defendant's criminal indictment should have been 
removed because federal law secured nondiscriminatory jury service and 
it could be predicted that he would be denied his rights before a 
discriminatorily-selected state jury. In Virginia v. Rives, 100 U.S. 313 
(1880), there was no state statute, but there was exclusion of Negroes 
from juries pursuant to custom and removal was denied. In Neal v. 
Delaware, 103 U.S. 370 (1880), the state provision authorizing 
discrimination in jury selection had been held invalid under federal law 
by a state court, and a similar situation existed in Bush v. Kentucky, 
107 U.S. 110 (1882). Removal was denied in both cases. The dissenters in 
City of Greenwood v. Peacock, 384 U.S. 808, 848-852 (1966), argued that 
federal courts should consider facially valid statutes which might be 
applied unconstitutionally and state court enforcement of custom as well 
in evaluating whether a removal petitioner could enforce his federal 
rights in state court.
        \1280\Georgia v. Rachel, 384 U.S. 780, 788-794 (1966); City of 
Greenwood v. Peacock, 384 U.S. 808, 824-827 (1966), See also id., 847-
848 (Justice Douglas dissenting).
        \1281\Id., 824-827. See also Johnson v. Mississippi, 421 U.S. 
213 (1975).

  Clause 3. The Trial of all Crimes, except in Cases of Impeachment, 
shall be by Jury; and such Trial shall be held in the State where the 
said Crimes shall have been committed; but when not committed within any 
State, the Trial shall be at such Place or Places as the Congress may by 
Law have directed.\1282\
        \1282\See the Sixth Amendment.


                               ARTICLE III

                           JUDICIAL DEPARTMENT

  Section 3. Treason against the United States, shall consist only in 
levying War against them, or in adhering to their Enemies, giving them 
Aid and Comfort. No Person shall be convicted of Treason unless on the 
testimony of two Witnesses to the same overt Act, or on Confession in 
open court.


        The treason clause is a product of the awareness of the Framers 
of the ``numerous and dangerous excrescences'' which had disfigured the 
English law of treason and was therefore intended to put it beyond the 
power of Congress to ``extend the crime and punishment of 
treason.''\1283\ The debate in the Convention, remarks in the ratifying 
conventions, and contemporaneous public comment make clear that a 
restrictive concept of the crime was imposed and that ordinary partisan 
divisions within political society were not to be escalated by the 
stronger into capital charges of treason, as so often had happened in 

        \1283\2 J. Elliot, Debates in the Several State Conventions on 
Adoption of the Constitution (Philadelphia: 1836), 469 (James Wilson). 
Wilson was apparently the author of the clause in the Committee of 
Detail and had some first hand knowledge of the abuse of treason 
charges. J. Hurst, The Law of Treason in the United States--Selected 
Essays (Westport, Conn.: 1971), 90-91, 129-136.
        \1284\2 M. Farrand, op. cit., n.1, 345-350; 2 J. Elliot, op. 
cit., n. 1283, 469, 487 (James Wilson); 3 id., 102-103, 447, 451, 466; 4 
id., 209, 219, 220; The Federalist No. 43 (J. Cooke ed. 1961), 290 
(Madison); id., No. 84, 576-577 (Hamilton); The Works of James Wilson, 
R. McCloskey ed. (Cambridge: 1967 ed), 663-669. The matter is 
comprehensively studied in J. Hurst, op. cit., n. 1283, chs. 3, 4.


[[Page 822]]

        Thus, the Framers adopted two of the three formulations and the 
phraseology of the English Statute of Treason enacted in 1350,\1285\ but 
they conspicuously omitted the phrase defining as treason the 
``compass[ing] or imagin[ing] the death of our lord the King,''\1286\ 
under which most of the English law of ``constructive treason'' had been 
developed.\1287\ Beyond limiting the power of Congress to define 
treason,\1288\ the clause also prescribes limitations upon Congress' 
ability to make proof of the offense easy to establish\1289\ and its 
ability to define punishment.\1290\

        \1285\25 Edward III, Stat. 5, ch. 2, See J. Hurst, op. cit., n. 
1283, ch 2.
        \1286\Id., 15, 31-37, 41-49, 51-55.
        \1287\Ibid. ``[T]he record does suggest that the clause was 
intended to guarantee nonviolent political processes against prosecution 
under any theory or charge, the burden of which was the allegedly 
seditious character of the conduct in question. The most obviously 
restrictive feature of the constitutional definition is its omission of 
any provision analogous to that branch of the Statute of Edward III 
which punished treason by compassing the death of the king. In a narrow 
sense, this provision perhaps had no proper analogue in a republic. 
However, to interpret the silence of the treason clause in this way 
alone does justice neither to the technical proficiency of the 
Philadelphia draftsmen nor to the practical statecraft and knowledge of 
English political history among the Framers and proponents of the 
Constitution. The charge of compassing the king's death had been the 
principal instrument by which `treason' had been used to suppress a wide 
range of political opposition, from acts obviously dangerous to order 
and likely in fact to lead to the king's death to the mere speaking or 
writing of views restrictive of the royal authority.'' Id., 152-153.
        \1288\The clause does not, however, prevent Congress from 
specifying other crimes of a subversive nature and prescribing 
punishment, so long as Congress is not merely attempting to evade the 
restrictions of the treason clause. E.g., Ex parte Bollman, 4 Cr. (8 
U.S.) 75, 126 (1807); Wimmer v. United States, 264 Fed. 11, 12-13 (6th 
Cir. 1920), cert den., 253 U.S. 494 (1920).
        \1289\By the requirement of two witnesses to the same overt act 
or a confession in open court.
        \1290\Cl. 2, infra, pp. 827-828.
      Levying War

        Early judicial interpretation of the meaning of treason in terms 
of levying war was conditioned by the partisan struggles of the early 
nineteenth century, in which were involved the treason trials of Aaron 
Burr and his associates. In Ex parte Bollman,\1291\ which involved two 
of Burr's confederates, Chief Justice Marshall, speaking for himself and 
three other Justices, confined the meaning of levying war to the actual 
waging of war. ``However flagitious may be the crime of conspiring to 
subvert by force the government of our country, such conspiracy is not 
treason. To conspire to levy war, and actually to levy war, are distinct 
offences. The first must be brought into open action by the assemblage 
of men for a purpose treasonable in itself, or the fact of levying war 
cannot have been committed. So far has this principle been carried, that 
. . . it has been determined that the actual enlistment of men to serve 

[[Page 823]]
the government does not amount to levying of war.'' Chief Justice 
Marshall was careful, however, to state that the Court did not mean that 
no person could be guilty of this crime who had not appeared in arms 
against the country. ``On the contrary, if it be actually levied, that 
is, if a body of men be actually assembled for the purpose of effecting 
by force a treasonable purpose, all those who perform any part, however 
minute, or however remote from the scene of action, and who are actually 
leagued in the general conspiracy, are to be considered as traitors. But 
there must be an actual assembling of men, for the treasonable purpose, 
to constitute a levying of war.''

        \1291\4 Cr. (8 U.S.) 75 (1807).

        On the basis of these considerations and due to the fact that no 
part of the crime charged had been committed in the District of 
Columbia, the Court held that Bollman and Swartwout could not be tried 
in the District and ordered their discharge. He continued by saying that 
``the crime of treason should not be extended by construction to 
doubtful cases'' and concluded that no conspiracy for overturning the 
Government and ``no enlisting of men to effect it, would be an actual 
levying of war.''\1292\

        \1292\Id., 126-127.

        The Burr Trial.--Not long afterward, the Chief Justice went to 
Richmond to preside over the trial of Burr himself. His ruling\1293\ 
denying a motion to introduce certain collateral evidence bearing on 
Burr's activities is significant both for rendering the latter's 
acquittal inevitable and for the qualifications and exceptions made to 
the Bollman decision. In brief, this ruling held that Burr, who had not 
been present at the assemblage on Blennerhassett's Island, could be 
convicted of advising or procuring a levying of war only upon the 
testimony of two witnesses to his having procured the assemblage. This 
operation having been covert, such testimony was naturally unobtainable. 
The net effect of Marshall's pronouncements was to make it extremely 
difficult to convict one of levying war against the United States short 
of the conduct of or personal participation in actual hostilities.\1294\

        \1293\United States v. Burr, 4 Cr. (8 U.S.), 469, Appx. (1807).
        \1294\There have been a number of lower court cases in some of 
which convictions were obtained. As a result of the Whiskey Rebellion, 
convictions of treason were obtained on the basis of the ruling that 
forcible resistance to the enforcement of the revenue laws was a 
constructive levying of war. United States v. Vigol, 29 Fed. Cas. 376 
(No. 16621) (C.C.D. Pa. 1795); United States v. Mitchell, 26 Fed. Cas. 
1277 (No. 15788) (C.C.D. Pa. 1795). After conviction, the defendants 
were pardoned. See also for the same ruling in a different situation the 
Case of Fries, 9 Fed. Cas. 826, 924 (Nos. 5126, 5127) (C.C.D. Pa. 1799, 
1800). The defendant was again pardoned after conviction. About a half 
century later participation in forcible resistance to the Fugitive Slave 
Law was held not to be a constructive levying of war. United States v. 
Hanway, 26 Fed. Cas. 105 (No. 15299) (C.C.E.D. Pa. 1851). Although the 
United States Government regarded the activities of the Confederate 
States as a levying of war, the President by Amnesty Proclamation of 
December 25, 1868, pardoned all those who had participated on the 
southern side in the Civil War. In applying the Captured and Abandoned 
Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court 
declared that the foundation of the Confederacy was treason against the 
United States. Sprott v. United States, 20 Wall. (87 U.S.) 459 (1875). 
See also Hanauer v. Doane, 12 Wall. (79 U.S.) 342 (1871); Thorington v. 
Smith, 8 Wall. (75 U.S.) 1 (1869); Young v. United States, 97 U.S. 39 
(1878). These four cases bring in the concept of adhering to the enemy 
and giving him aid and comfort, but these are not criminal cases and 
deal with attempts to recover property under the Captured and Abandoned 
Property Act by persons who claimed that they had given no aid or 
comfort to the enemy. These cases are not, therefore, an interpretation 
of the Constitution.


[[Page 824]]
      Aid and Comfort to the Enemy

        The Cramer Case.--Since the Bollman case, the few treason cases 
which have reached the Supreme Court were outgrowths of World War II and 
have charged adherence to enemies of the United States and the giving of 
aid and comfort. In the first of these, Cramer v. United States,\1295\ 
the issue was whether the ``overt act'' had to be ``openly manifest 
treason'' or if it was enough if, when supported by the proper evidence, 
it showed the required treasonable intention.\1296\ The Court in a five-
to-four opinion by Justice Jackson in effect took the former view 
holding that ``the two-witness principle'' interdicted ``imputation of 
incriminating acts to the accused by circumstantial evidence or by the 
testimony of a single witness,''\1297\ even though the single witness in 
question was the accused himself. ``Every act, movement, deed, and word 
of the defendant charged to constitute treason must be supported by the 
testimony of two witnesses,''\1298\ Justice Jackson asserted. Justice 
Douglas in a dissent, in which Chief Justice Stone and Justices Black 
and Reed concurred, contended that Cramer's treasonable intention was 
sufficiently shown by overt acts as attested to by two witnesses each, 
plus statements made by Cramer on the witness stand.

        \1295\325 U.S. 1 (1945).
        \1296\89 Law. Ed. 1443-1444 (Argument of Counsel).
        \1297\Id., 325 U.S., 35.
        \1298\Id., 34-35. Earlier, Justice Jackson had declared that 
this phase of treason consists of two elements: ``adherence to the 
enemy; and rendering him aid and comfort.'' A citizen, it was said, may 
take actions ``which do aid and comfort the enemy . . . but if there is 
no adherence to the enemy in this, if there is no intent to betray, 
there is no treason.'' Id., 29, Justice Jackson states erroneously that 
the requirement of two witnesses to the same overt act was an original 
invention of the Convention of 1787. Actually it comes from the British 
Treason Trials Act of 1695. 7 Wm. III, c.3.

        The Haupt Case.--The Supreme Court sustained a conviction of 
treason, for the first time in its history, in 1947 in Haupt v. United 
States.\1299\ Here it was held that although the overt acts relied upon 
to support the charge of treason--defendant's harboring

[[Page 825]]
and sheltering in his home his son who was an enemy spy and saboteur, 
assisting him in purchasing an automobile, and in obtaining employment 
in a defense plant--were all acts which a father would naturally perform 
for a son, this fact did not necessarily relieve them of the treasonable 
purpose of giving aid and comfort to the enemy. Speaking for the Court, 
Justice Jackson said: ``No matter whether young Haupt's mission was 
benign or traitorous, known or unknown to the defendant, these acts were 
aid and comfort to him. In the light of this mission and his 
instructions, they were more than casually useful; they were aids in 
steps essential to his design for treason. If proof be added that the 
defendant knew of his son's instruction, preparation and plans, the 
purpose to aid and comfort the enemy becomes clear.''\1300\

        \1299\330 U.S. 631 (1947).
        \1300\Id., 635-636

        The Court held that conversation and occurrences long prior to 
the indictment were admissible evidence on the question of defendant's 
intent. And more important, it held that the constitutional requirement 
of two witnesses to the same overt act or confession in open court does 
not operate to exclude confessions or admissions made out of court, 
where a legal basis for the conviction has been laid by the testimony of 
two witnesses of which such confessions or admissions are merely 
corroborative. This relaxation of restrictions surrounding the 
definition of treason evoked obvious satisfaction from Justice Douglas 
who saw in the Haupt decision a vindication of his position in the 
Cramer case. His concurring opinion contains what may be called a 
restatement of the law of treason and merits quotation at length:

        ``As the Cramer case makes plain, the overt act and the intent 
with which it is done are separate and distinct elements of the crime. 
Intent need not be proved by two witnesses but may be inferred from all 
the circumstances surrounding the overt act. But if two witnesses are 
not required to prove treasonable intent, two witnesses need not be 
required to show the treasonable character of the overt act. For proof 
of treasonable intent in the doing of the overt act necessarily involves 
proof that the accused committed the overt act with the knowledge or 
understanding of its treasonable character.

        ``The requirement of an overt act is to make certain a 
treasonable project has moved from the realm of thought into the realm 
of action. That requirement is undeniably met in the present case, as it 
was in the case of Cramer.

        ``The Cramer case departed from those rules when it held that 
`The two-witness principle is to interdict imputation of incriminat

[[Page 826]]
ing acts to the accused by circumstantial evidence or by the testimony 
of a single witness.' 325 U.S. p. 35. The present decision is truer to 
the constitutional definition of treason when it forsakes that test and 
holds that an act, quite innocent on its face, does not need two 
witnesses to be transfomred into a incriminating one.''\1301\

        \1301\Id., 645-646, Justice Douglas cites no cases for these 
propositions. Justice Murphy in a solitary dissent stated: ``But the act 
of providing shelter was of the type that might naturally arise out of 
petitioner's relationship to his son, as the Court recognizes. By its 
very nature, therefore, it is a non-treasonous act. That is true even 
when the act is viewed in light of all the surrounding circumstances. 
All that can be said is that the problem of whether it was motivated by 
treasonous or non-treasonous factors is left in doubt. It is therefore 
not an overt act of treason, regardless of how unlawful it might 
otherwise be.'' Id., 649.

        The Kawakita Case.--Kawakita v. United States\1302\ was decided 
on June 2, 1952. The facts are sufficiently stated in the following 
headnote: ``At petitioner's trial for treason, it appeared that 
originally he was a native-born citizen of the United States and also a 
national of Japan by reason of Japanese parentage and law. While a 
minor, he took the oath of allegiance to the United States; went to 
Japan for a visit on an American passport; and was prevented by the 
outbreak of war from returning to this country. During the war, he 
reached his majority in Japan; changed his registration from American to 
Japanese, showed sympathy with Japan and hostility to the United States; 
served as a civilian employee of a private corporation producing war 
materials for Japan; and brutally abused American prisoners of war who 
were forced to work there. After Japan's surrender, he registered as an 
American citizen; swore that he was an American citizen and had not done 
various acts amounting to expatriation; and returned to this country on 
an American passport.'' The question whether, on this record Kawakita 
had intended to renounce American citizenship, said the Court, in 
sustaining conviction, was peculiarly one for the jury and their verdict 
that he had not so intended was based on sufficient evidence. An 
American citizen, it continued, owes allegiance to the United States 
wherever he may reside, and dual nationality does not alter the 

        \1302\343 U.S. 717 (1952).
        \1303\Id., 732. For citations in the subject of dual 
nationality, see id., 723 n. 2. Three dissenters asserted that 
Kawakita's conduct in Japan clearly showed he was consistently 
demonstrating his allegiance to Japan. ``As a matter of law, he 
expatriated himself as well as that can be done.'' Id., 746.


[[Page 827]]
      Doubtful State of the Law of Treason Today

        The vacillation of Chief Justice Marshall between the 
Bollman\1304\ and Burr\1305\ cases and the vacillation of the Court in 
the Cramer\1306\ and Haupt\1307\ cases leave the law of treason in a 
somewhat doubtful condition. The difficulties created by the Burr case 
have been obviated to a considerable extent through the punishment of 
acts ordinarily treasonable in nature under a different label,\1308\ 
within a formula provided by Chief Justice Marshall himself in the 
Bollman case. The passage reads: ``Crimes so atrocious as those which 
have for their object the subversion by violence of those laws and those 
institutions which have been ordained in order to secure the peace and 
happiness of society, are not to escape punishment, because they have 
not ripened into treason. The wisdom of the legislature is competent to 
provide for the case; and the framers of our Constitution . . . must 
have conceived it more safe that punishment in such cases should be 
ordained by general laws, formed upon deliberation, under the influence 
of no resentments, and without knowing on whom they were to operate, 
than that it should be inflicted under the influence of those passions 
which the occasion seldom fails to excite, and which a flexible 
definition of the crime, or a construction which would render it 
flexible, might bring into operation.''\1309\

        \1304\Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807).
        \1305\United States v. Burr, 4 Cr. (8 U.S.) 469 (1807).
        \1306\Cramer v. United States, 325 U.S. 1 (1945).
        \1307\Haupt v. United States, 330 U.S. 631 (1947).
        \1308\Cf. United States v. Rosenberg, 195 F.2d 583 (2d. Cir.), 
cert den., 344 U.S. 889 (1952), holding that in a prosecution under the 
Espionage Act for giving aid to a country, not an enemy, an offense 
distinct from treason, neither the two-witness rule nor the requirement 
as to the overt act is applicable.
        \1309\Ex parte Bollman, 4 Cr. (8 U.S.) 126, 127 (1807). Justice 
Frankfurter appended to his opinion in Cramer v. United States, 325 U.S. 
1, 25 n. 38 (1945), a list taken from the Government's brief of all the 
cases prior to Cramer in which construction of the treason clause was 
involved. The same list, updated, appears in J. Hurst, op. cit., n. 
1283, 260-267. Professor Hurst was responsible for the historical 
research underlaying the Government's brief in Cramer.

  Clause 2. The Congress shall have Power to declare the Punishment of 
Treason, but no Attainder of Treason shall work Corruption of Blood, or 
Forfeiture except during the Life of the Person attainted.


        The Confiscation Act of 1862 ``to suppress Insurrection, to 
punish Treason and Rebellion, to seize and confiscate the Property of

[[Page 828]]
Rebels''\1310\ raised issues under Article III, Sec. 3, cl.2. Because of 
the constitutional doubts of the President, the act was accompanied by 
an explanatory joint resolution which stipulated that only a life estate 
terminating with the death of the offender could be sold and that at his 
death his children could take the fee simple by descent as his heirs 
without deriving any title from the United States. In applying this act, 
passed in pursuance of the war power and not the power to punish 
treason,\1311\ the Court in one case\1312\ quoted with approval the 
English distinction between a disability absolute and perpetual and one 
personal or temporary. Corruption of blood as a result of attainder of 
treason was cited as an example of the former and was defined as the 
disability of any of the posterity of the attained person ``to claim any 
inheritance in fee simple, either as heir to him, or to any ancestor 
above him.''\1313\

        \1310\12 Stat. 589. This act incidentally did not designate 
rebellion as treason.
        \1311\Miller v. United States, 11 Wall. (78 U.S.) 268, 305 
        \1312\Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).
        \1313\Lord de la Warre's Case, 11 Coke Rept. 1a, 77 Eng. Rept. 
1145 (1597). A number of cases dealt with the effect of a full pardon by 
the President of owners of property confiscated under this act. They 
held that a full pardon relieved the owner of forfeiture as far as the 
Government was concerned but did not divide the interest acquired by 
third persons from the Government during the lifetime of the offender. 
Ill. Central Railroad v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. 
United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 
203 (1876); Armstrong's Foundry, 6 Wall. (73 U.S.) 766, 769 (1868). 
There is no direct ruling on the question of whether only citizens can 
commit treason. In Carlisle v. United States, 16 Wall. (83 U.S.) 147, 
154-155 (1873), the Court declared that aliens while domiciled in this 
country owe a temporary allegiance to it and may be punished for treason 
equally with a native-born citizen in the absence of a treaty 
stipulation to the contrary. This case involved the attempt of certain 
British subjects to recover claims for property seized under the 
Captured and Abandoned Property Act, 12 Stat. 820 (1863), which provided 
for the recovery of property or its value in suits in the Court of 
Claims by persons who had not rendered aid and comfort to the enemy. 
Earlier in United States v. Wiltberger, 5 Wheat. (18 U.S.) 76, 97 
(1820), which involved a conviction for manslaughter under an act 
punishing manslaughter and treason on the high seas, Chief Justice 
Marshall going beyond the necessities of the case stated that treason 
``is a breach of allegiance, and can be committed by him only who owes 
allegiance either perpetual or temporary.'' However, see In re 
Shinohara, Court Martial Orders, No. 19, September 8, 1949, p. 4, Office 
of the Judge Advocate General of the Navy, reported in 17 Geo. Wash. L. 
Rev. 283 (1949). In the latter, an enemy alien resident in United States 
territory (Guam) was held guilty of treason for acts done while the 
enemy nation of which he was a citizen occupied such territory. Under 
English precedents, an alien residing in British territory is open to 
conviction for high treason on the theory that his allegiance to the 
Crown is not suspended by foreign occupation of the territory. DeJager 
v. Attorney General of Natal (1907), A.C., 96 L.T.R. 857. See also 18 
U.S.C. Sec. 2381.