Jurisdiction and Definitional Law

Professor Scott Dodson and I agree that the law of federal jurisdiction needs improvement. We disagree, however, on Congress’s power to make that happen. In an article published in 2017, Dodson argued that “jurisdiction” has an “inherent identity” that “[n]either Congress nor the courts can change.” In an article published the following year, I critiqued this claim. There, I argued that Congress is not obliged to respect jurisdiction’s inherent identity (to the extent it might have one). Rather, Congress need only respect the identity of jurisdiction contained in the United States Constitution. Professor Dodson recently published a rejoinder to my critique. In it, he argued the meaning of the word “jurisdiction” is “definitional law” that binds Congress just as other words with “settled” meanings bind Congress. In this brief response to his argument, I articulate our key area of disagreement and explain why I continue to believe his view is wrong

Witch Doctors and Battleship Stalkers: The Edges of Exculpation in Entrapment Cases

This Note examines the effects of a defendant\u27s claim of lack of positional disposition (i.e., the inability to commit the crime unaided) to support an entrapment defense. The solution to the positional predisposition dispute requires answering two questions. First, on what grounds should criminal ability be considered at all by a court in determining a defendant\u27s predisposition? Second, if ability is probative of predisposition, what degree of inability should be required for exculpation? This Note argues that a defendant\u27s criminal ability is probative of that defendant\u27s predisposition, and further, that a defendant\u27s inability should be exculpatory to the degree that exculpation would be appropriate in cases of impossibility under criminal attempt law. Part II of this Note provides the setting. It reviews the facts and judicial opinion of the most well-known positional predisposition case, United States v. Hollingsworth. Then, Part III demonstrates the logic behind exculpating defendants for their inability. In summary, Part III reasons that, because the entrapment defense\u27s purpose is to determine the culpability of the defendant, the defendant\u27s criminal ability should be considered since it is probative of culpability. Part IV then addresses the concern that exculpation for all criminal inability may be too broad, since attempt law, in general, punishes unable defendants. Thus, Part IV argues that exculpation for criminal inability should be permitted only to the extent that such exculpation is permitted in cases of impossible criminal attempts. As will be demonstrated in Part IV, only a small category of impossible attempts, inherently impossible attempts, warrant a dismissal of criminal liability

How the Federal Cause of Action Relates to Rights, Remedies, and Jurisdiction

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts? The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is largely distinct from rights, closely related to (and sometimes synonymous with) remedies, and distinct from jurisdiction except where Congress instructs otherwise or the case implicates sovereign immunity. Sorting out these relationships provides several benefits, including refining the doctrine of prudential standing, clarifying the grounds for federal jurisdiction, and dispelling claims that Congress lacks power over certain causes of action

Constitutional Enforcement by Proxy

Americans love their Constitution. But love, as we all know, is blind. This may explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief using sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that constitutional rights can be enforced through the application of sub-constitutional law, a practice this Article refers to as “constitutional enforcement by proxy.” This Article is the first to analyze the emerging practice of proxy enforcement. This issue is important because it lies at the confluence of several important discourses in the federal courts field—such as the judicial duty to issue a remedy for every constitutional wrong, the role of non-Article III actors in setting constitutional norms, and the degree to which sub-constitutional law can, like the Constitution itself, be “constitutive” of the national order. This Article’s central claim is that proxy enforcement, properly administered, is permissible and even advisable in a large number of cases. It is permissible because federal courts’ duty to supervise the behavior of non-Article III actors does not require courts to invoke the Constitution directly (unless Congress has ordered otherwise). If courts can maintain constitutional norms using sub-constitutional law, they are entirely free to do so. The practice is normatively attractive because it promises a partial truce in the everlasting debate over interpretive supremacy. By relying on sub-constitutional law to enforce the Constitution, federal courts allow non-Article III actors a significant role in the articulation of constitutional norms, a role normally denied them when courts enforce the Constitution directly. Thus, sub-constitutional adjudication of civil rights claims does not spurn our love of the Constitution; it preserves individual rights while honoring a principle that lies at the Constitution’s very heart: popular sovereignty

How the Federal Cause of Action Relates to Rights, Remedies, and Jurisdiction

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts? The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is largely distinct from rights, closely related to (and sometimes synonymous with) remedies, and distinct from jurisdiction except where Congress instructs otherwise or the case implicates sovereign immunity. Sorting out these relationships provides several benefits, including refining the doctrine of prudential standing, clarifying the grounds for federal jurisdiction, and dispelling claims that Congress lacks power over certain causes of action

How Shall the Constitution be Enforced? A Preview of Minneci v. Pollard

Professor Preis discusses Minneci v. Pollard, a case he argued before the Supreme Court of the United States on behalf of his client (Pollard), a federal prisoner who had brought a civil rights action for various forms of mistreatment in alleged violation of the Eighth Amendment. He outlines his and Pollard\u27s contention that federal courts should enforce the civil rights of prisoners without regard to the availability of equivalent tort relief under state common law

Jurisdictional Idealism and Positivism

“If I should call a sheep’s tail a leg, how many legs would it have? Four, because calling a tail a leg would not make it so.” This old quip, often attributed to Abraham Lincoln, captures an issue at the heart of the modern law of subject matter jurisdiction. Some believe that there is a Platonic ideal of jurisdiction that cannot be changed by judicial or legislative fiat. Others take a positivist approach and assert that jurisdiction is nothing more than whatever a legislature says it is. Who is right?Neither and both. Although neither idealism nor positivism is the best approach, a combination of both is. The law of jurisdiction in the United States, like all positive law, is a human creation and thus susceptible to modification by humans. If lawmakers want their jurisdictional sheep to have five legs, they are free to declare the tail a leg, and courts must heed that declaration. But lawmakers occasionally speak ambiguously. When courts encounter ambiguity—like a tail that may or may not be a leg—they should resolve the ambiguity in a way that affirms, rather than contradicts, the ideal

The False Promise of the Converse-1983 Action

The federal government is out of control. At least that’s what many states will tell you. Not only is the federal government passing patently unconstitutional legislation, but its street-level officers are ignoring citizens’ constitutional rights. How can states stop this federal juggernaut? Many are advocating a “repeal amendment,” whereby two-thirds of the states could vote to repeal federal legislation. But the repeal amendment will only address unconstitutional legislation, not unconstitutional actions. States can’t repeal a stop-and-frisk that occurred last Thursday. States might, however, enact a so-called “converse-1983” action. The idea for converse-1983 laws has been around for some time but until now has escaped academic treatment. A converse-1983 action would operate similarly to the popular § 1983 action in that it would provide a cause of action for damages where federal constitutional rights have been violated. Unlike § 1983, however, a converse-1983 would be enacted by a state (rather than Congress) and provide a cause of action against a federal officer (rather than a state officer). By enacting converse-1983 laws, states could thus punish the federal government when its officers disregard the Constitution. The problem with converse-1983 laws, however, is that they just won’t work. In this Article, I explain that converse-1983 laws will always be subject to limitations imposed by Congress or the federal courts. It can hardly be said that converse-1983 laws are a valuable opportunity for states to rein in the federal government if those laws can only be enforced at the pleasure of the federal government. In making this argument, I take the reader on a tour of a variety of topics in the field of constitutional enforcement, including officer immunity, federal common law, the nature of Bivens actions, the constitutional right to a remedy, and Founding-era practices through which states imposed their views on the federal government. Together, these discussions make clear that the converse-1983 action, which has been often cited but rarely questioned, is a cause of action without any legal value

Witch Doctors and Battleship Stalkers: The Edges of Exculpation in Entrapment Cases

The bumbling criminal has long been humorous to the law-abiding. Take, for example, a man recently intent on robbing a bank. The man entered a Bank of America bank, grabbed a deposit slip, and wrote on it This iz a stikkup. Put all your muny in this bag. \u27 While waiting in line for a teller, he became worried that someone had seen him write the note and would inform the police. Thus, he exited the bank, walked across the street to the Wells Fargo bank, and gave the note to a teller. The teller, probably sensing his lack of dangerousness from the note, informed him that she could not comply because the note was on a Bank of America deposit slip, not a Wells Fargo slip. He then returned to the other bank and began to wait in line. The Wells Fargo teller called the police and the man was arrested while waiting in line at the Bank of America.\u27 Many may wonder whether this man had enough wits to be a successful criminal. In general, however, this concern is irrelevant to the law. As long as he had an intent to commit the crime, and acted on that intent, he is culpable, and therefore punishable. There are rare cases, however, where unsuccessful defendants are exonerated. Consider for example a witch doctor who intends to commit murder with a voodoo doll; or an individual who tries to sink a battleship with a BB gun. In such cases, few would argue that prosecution for attempted murder or attempted battleship sinking is appropriate. Although these hypotheticals push the limits of possibility, they highlight the question of whether criminal inability may ever be grounds for exculpation

In Defense of Implied Injunctive Relief in Constitutional Cases

If Congress has neither authorized nor prohibited a suit to enforce the Constitution, may the federal courts create one nonetheless? At present, the answer mostly turns on the form of relief sought: if the plaintiff seeks damages, the Supreme Court will normally refuse relief unless Congress has specifically authorized it; in contrast, if the plaintiff seeks an injunction, the Court will refuse relief only if Congress has specifically barred it. These contradictory approaches naturally invite arguments for reform. Two common arguments-one based on the historical relationship between law and equity and the other based on separation of powers principles--could quite foreseeably combine to end implied injunctive relief as we know it. In this Article, I defend the federal courts\u27 power to issue injunctions in constitutional cases without explicit congressional authorization-a practice known as implying a suit for relief. The defense rests on two proofs, both largely historical First, I show that the historical relationship between law and equity has largely been misunderstood in the realm of injunctive relief. Second, I show that implied injunctive relief does not contravene separation of powers principles because Congress and the federal courts have, since the Founding, viewed implied injunctive relief as permissible and even appropriate. These proofs do not account for policy concerns that might impact the inquiry, but they do suggest that such concerns must be extraordinarily compelling to overcome the federal courts\u27 centuries-old power to imply injunctive relief in constitutional cases