Wrongful Convictions, Constitutional Remedies, and \u3ci\u3eNelson v. Colorado\u3c/i\u3e

The end result in Nelson will satisfy nearly everyone’s sense of basic justice, at least insofar as the monetary refund is concerned. Still, the case is interesting not for its outcome but because the Court’s analysis touches on, but fails to fully engage with, subtle and difficult questions of constitutional law. This Article examines three important aspects of the case—outside of the procedural due process balancing question—that receive little, if any, attention in the Court’s opinion. Part I shows that the Court’s procedural due process analysis skips over the logical first step and doctrinally harder question of whether Nelson had a constitutionally protected property interest once Colorado took the money pursuant to her conviction. On this point, Justice Ginsburg seems to set aside the Court’s previously settled doctrine about the nature and source of property protected by the Due Process Clause. Instead, the Court opts for an ad hoc definition of property, perhaps because application of the settled doctrine may have allowed Colorado to keep the money, a result which seven Justices very much wanted to avoid. Part II argues that the Court could have and should have taken a different analytical pathway toward the outcome it reached. In particular, Part II describes a rationale for reversal that would have resulted in return of the money without sowing confusion in Fourteenth Amendment doctrine. This analysis hinges on the rules governing Supreme Court review of state court judgments. Ordinarily, the Court will not examine the state law grounds for a state court’s decision in such cases. An exception to this rule exists, however, for cases in which the relied-upon state law undermines federal rights and lacks fair support in prior state law. The Supreme Court could readily have found that the Colorado court’s interpretation of the Exoneration Act met the requirements of this exception, thus allowing the Court to reverse the lower court’s judgment without relying upon a new and controversial notion of the meaning of property. Part III turns to the Court’s distinction between deprivations of property and liberty. Nelson holds that “[t]o comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.” Some of Justice Ginsburg’s reasoning strongly suggests that there is no due process right to obtain redress for the lost liberty. Yet the Fourteenth Amendment seems to draw no such distinction between liberty and property. It guarantees “due process” when the state deprives a person of “life, liberty, or property.” Part III asks whether there are grounds upon which a backward-looking money-damages remedy can be justified for the deprivation of property alone, or whether the liberty/property distinction is simply an arbitrary one

Identifying State Actors in Constitutional Litigation: Reviving the Role of Substantive Context

While most section 1983 suits are brought against local governments and officials, an increasing number of plaintiffs target private persons and businesses who have collaborated with government in one way or another. In such cases, plaintiffs claim that private entities have acted under color of state law in violation of the plaintiffs\u27 rights. They must establish that the defendants are nonetheless state actors in order to prevail on the constitutional claims they raise. The broad range of cases includes, among others, efforts to obtain relief against creditors who use self-help remedies, litigation directed at persons who have cooperated with state officers to the plaintiffs\u27 detriment, and suits seeking recovery from persons and firms to whom the State has contracted out some function. Taking the Supreme Court\u27s recent decision in Brentwood Academy v. Tennessee Secondary School Athletic Association as a starting point, this Article examines the criteria the Court uses to determine whether sate action is present in a given case. Brentwood Academy held that pervasive entwinement between public secondary schools and the Tennessee Secondary School Athletic Association (TSSAA) made the TSSAA a state actor when it imposed sanctions on Brentwood, a private school, for athletic recruiting violations. My concern is not with the outcome of the case, but with the Court\u27s analytical model. I argue that the current approach pays too much attention to a search for various indicia of state action in the events giving rise to the litigation, while excluding consideration of the substantive context in which the case arises. Some of the Court\u27s reasoning suggests that the point of the inquiry is to determine whether state action is or is not present in the case. The constitutional values at stake in state action cases would be better served by asking whether, given the substantive context as well as the scope of the State\u27s role, the constitutional claim asserted by the section 1983 plaintiff ought to extend to the case at hand. Part I describes the current doctrine and Part II contrasts the modern approach with the earlier approach to state action, in which the Supreme Court gave significant weight to substantive context. The comparison reveals that the modern view seems to conceive of state action as a thing that may or may not be present in a given case. Part III demonstrates that state action is more usefully conceived as a vehicle for coping with conflicting constitutional values. Using a number of illustrative cases, Part IV shows that readmitting substance into the state action lexicon would markedly improve the doctrine, by providing the analytical tools needed to more sensibly resolve those conflicts, and by generating more persuasive rationales for the outcomes of cases. There is, however, a danger that substantive arguments, once admitted into state action analysis, will dominate the doctrine to the exclusion of state action policies. Part V argues that the Court could successfully avert that risk by retaining one important feature of most modern cases: insofar as possible, it should state the doctrine in the form of rules, rejecting tests that rely on close review of the facts. Under th emodel advocated here, the Brentwood Academy majority went wrong in two distinct ways. It paid no attention to substance, and it spurned rule making in favor of taking account of range of circumstances, and a host of facts

Preliminary Injunctions and Abstention: Some Problems in Federalism

Suppose a federal district court faces a challenge to state action that presents an unsettled issue of state law, a federal constitutional issue, and a plaintiff who will be irreparably harmed if the state is not immediately enjoined. May the court abstain from a decision on the merits, remand the case to the state courts for resolution of the state law issue, and yet grant a preliminary injunction against the challenged state action? Does it follow from the paucity of reported opinions coupling such interim relief with abstention that such a procedure is inconsistent with the policies underlying the abstention doctrine? Should we rely on the state courts to decide the interim relief question? Are there practical considerations that favor other methods for resolving the interests of the plaintiff, the state, and the federal system? This Article examines these questions and suggests that more extensive use of preliminary relief would not unduly interfere with the purposes of abstention, would help accommodate all the interests at stake in an abstention case, and may be the best available means for serving the goals of abstention

The Impact of Substantive Interests on the Law of Federal Courts

The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government\u27s interest iin regulating behavior on the one hand, and the individual\u27s interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court\u27s conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set forth in the Court\u27s opinions lack credibility. The rulings fit into a coherent pattern only when viewed from the perspective of the Court\u27s substantive agenda

Marshall Shapo\u27s Constitutional Tort Fifty-Five Years Later

In 1965, Northwestern University Law Review published Professor Marshall Shapo’s article, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond.1 Professor Shapo’s paper analyzed the origins of constitutional tort law, which consists of suits for damages for constitutional violations committed by government officials or the governments themselves. The article began with an account of the post-Civil War background of 42 U.S.C. § 1983, a statute enacted in 1871 to enforce the Fourteenth Amendment. After the Civil War, recalcitrant southerners, acting through groups like the Ku Klux Klan, intimidated the freedmen and their white supporters, organized lynch mobs, burned houses, and, in general, attempted to restore the old order. The statute authorizes a cause of action against “[e]very person” who, acting “under color of” state law, violates constitutional rights.2 Professor Shapo went on to recount the legislative history of § 1983 and the relevant case law over the next nine decades.3 Interestingly, the Supreme Court rarely addressed § 1983 issues during that ninety-year period.4 Few cases were brought under the statute,5 and lower courts typically gave it a limited reach. When lower courts did consider § 1983 claims, they mainly read “under color of” as a requirement that the plaintiff show that state law authorized the violation, so that the availability of a state remedy would thwart the plaintiff’s effort to obtain access to federal court.6 Under this interpretation, the application of a statute that denies the right to vote to African Americans would be a § 1983 violation, whereas police brutality that violates state law would not

The Past and Future of Constitutional Torts: From Statutory Interpretation to Common Law Rules

The cause of action for damages to redress violations of constitutional rights is now firmly established in our law. As recently as 1960, such constitutional tort suits were rare and attracted little attention from scholars. Today, they are a major part of the work of the federal courts and the academic literature is constantly growing. This change can be partly attributed to the expansion of constitutional rights in the 1960s and 1970s, and partly to the 1961 case of Monroe v. Pape. In Monroe, the Supreme Court revived a long-neglected, ninety-year-old statute, 42 U.S.C. 1983, making it the vehicle for a broad cause of action to remedy constitutional violations. In the years since Monroe, the Court has devoted considerable attention to defining the contours of this new tort remedy. In so doing, it has generally viewed its task as a search for the intent of the framers of section 1983. It has also relied at times on such tort-law policy considerations as the deterrence of wrongdoing, the vindication of rights, and the spreading of losses. The Court has referred to this approach as a two-part test for adjudicating constitutional tort claims. This article argues that the Court\u27s approach is deeply flawed. The so-called two-part test is not a set of standards for making rules, but a device by which the Court can often rationalize whatever result it desires in a given case. In fact, the two parts of the test -- legislative intent and tort-law policy considerations -- are frequently at odds with each other. Unless one or the other of these premises is abandoned, the rules generated from them will inevitably reflect the conflict between them. Although it has been the more prominent rational in the opinions, the Court should discard legislative intent as an analytic tool for adjudicating constitutional tort claims. First, quite apart from the conflict between tort policy and legislative intent, many glaring inconsistencies exist among the cases that purport to rely on legislative intent. One suspects, therefore, that the Court has not turned to the historical materials for guidance so much as it has manipulated them to achieve desired results. Second, even if the Court were sincere in its efforts to uncover legislative intent, the quest is doomed to failure. The framers of section 1983 did not and could not have formed any intent with regard to the issues that arise in modern constitutional tort law. By contrast, although the Court has sometimes invoked tort principles and policies in constitutional tort cases, it has never carefully and consistently developed the implications of such an approach. Rather, its references to tort concepts have been sporadic and superficial. Given the unsatisfactory state of the law under section 1983, this article argues that the Court should abandon the statute as the foundation for constitutional tort law. Instead, the Court should rely exclusively on tort principles and policies in developing its doctrine. This new species of constitutional tort would fit comfortably within a remedial tradition that stretches back to the down of the common law. This conception of the cause of action would describe the doctrine more accurately, allow issues to be framed more realistically, and provide a more convincing rationale than does the Court\u27s current statutory approach. A tort perspective also suggests that some of the Court\u27s major decisions in this area are simply wrong, as they cannot be persuasively defended in terms of traditional tort-law principles

Available State Remedies and the Fourteenth Amendment: Comments on Florida Prepaid v. College Savings Bank

In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, decided during the Supreme Court\u27s October 1998 Term, the specific point at issue was the scope of Congress\u27s authority under Section 5 of the Fourteenth Amendment to impose liability for damages on state governments. In the Patent Remedy Act, Congress had abrogated the states\u27 sovereign immunity from claims of patent infringement. College Savings Bank argued for the validity of the statute on the grounds that patents are property; that patent infringements are deprivations of property; and that the statute simply and appropriately provides a remedy for deprivations of property without due process of law. The Court agreed that patents are “a species of property,” and that patent infringement could be a deprivation of property. But it rejected the rest of the argument, ruling that “for Congress to invoke section 5, it must identify conduct transgressing the Fourteenth Amendment\u27s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.” In enacting the Patent Remedy Act, Congress failed to meet this standard. My aim in this Article is not to mount a full-scale inquiry into the Court\u27s reasoning in Florida Prepaid, but to examine just one of the arguments it advanced in support of its ruling. While Chief Justice Rehnquist\u27s majority opinion does not clearly separate one factor from another, it contains three distinct strands of reasoning. The Chief Justice began by noting that Congress had “identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations.” He then pointed out that “Congress . . . barely considered the availability of state remedies for patent infringement and hence whether the States\u27 conduct might have amounted to a constitutional violation under the Fourteenth Amendment.” Third, the Patent Remedy Act swept too broadly in that it covered negligent as well as intentional patent infringements; negligent deprivations are not Fourteenth Amendment violations. I argue that, in awarding constitutional status to state remedies, Florida Prepaid seems to depart significantly from established law, for the rule has been that the Constitution is violated when the state official acts, no matter what state remedies may be available. Yet the opinion is ambiguous, and the Court does not seem to appreciate the implications of its holding. It will almost certainly have to find a way to cabin the principle it has unleashed. An even better solution would be to repudiate Florida Prepaid\u27s version of the available state remedies argument. Part I describes the usual role of adequate state remedies in federal courts law—to serve as the means by which statutory and common law rules cut off access to federal courts for litigation involving constitutional questions. State remedies ordinarily have no bearing on whether the plaintiff states a constitutional claim in the first place. A central principle of constitutional law, established in Home Telephone & Telegraph Co. v. City of Los Angeles, is that the constitutional violation is complete when officials act, even if their conduct is not authorized by state law. Part II shows that the ambiguous and confusing opinion in Florida Prepaid may be at odds with the Home Telephone principle in that the Florida Prepaid Court seems to treat the availability of state remedies as a ground for finding that the plaintiff has not even stated a constitutional claim. Assuming this to be so, Part III suggests ways in which the Florida Prepaid principle may be cabined, so as to minimize the extent of the conflict with Home Telephone. In Part IV I turn to the merits of arguing that even if the ruling can be confined to a narrow class of cases, the Court was wrong to treat the availability of state remedies as a ground for denying the existence of a constitutional claim

Were There Adequate State Grounds in Bush v. Gore?

Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. Some of the criticism is deserved. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election. It is all too easy to leap from this well-founded critique of the Court\u27s reasoning to the conclusion that the majority – all of whom were appointed by Republican presidents – were bent on installing George W. Bush in the White House by any means they could find, and that the holding rests not at all on law but solely on naked politics. Putting aside the majority\u27s reasoning, a better ground on which to defend Bush is that the Florida Supreme Court (the “Florida Court”) violated article II, § 1, clause 2 of the Constitution, which provides that “[e]ach state shall appoint, in such manner as the legislature thereof may direct, [presidential] electors.” In a concurring opinion, Chief Justice Rehnquist, joined by Justices Scalia and Thomas (the “plurality”), advanced an argument along these lines, and the four dissenters devoted parts of their opinions to refuting it. Though the plurality grasped the basic issue in Bush, it did not make the best case for reversal. The dissenters understandably responded only to the plurality\u27s weak arguments and not the stronger ones that should have been marshaled for reversal. The Chief Justice was right to be concerned about article II, but committed a critical error in his treatment of the “adequate and independent state ground” doctrine. The plurality was confronted with a state court opinion that did not purport to rely on federal law. If we leave equal protection out of the analysis (as I do throughout the remainder of this article), the threshold question is how one justifies the Court\u27s exercise of jurisdiction, for state courts are sovereign over matters of state law. The general rule is that the Supreme Court may review a case from a state court unless the state court judgment rests on an adequate and independent state ground. The plurality rightly found that, despite the Florida Court\u27s failure to address federal article II issues, there was not an adequate state ground here. But the plurality was right for the wrong reason. The “adequate state ground” doctrine is complex and sophisticated. It consists of not one but four principles for determining adequacy, with the choice among them depending on the relation between federal and state law in the case at hand. The plurality confused two of its branches and placed Bush in the wrong doctrinal category. Worse, the category in which the plurality put the case demands a stronger showing to justify Supreme Court review than the one to which Bush should have been assigned. The plurality cited cases which hold that the state ruling should stand unless the state court distorted state law in order to evade federal protections. The proper rule for Bush is that the state court\u27s reasoning deserves no deference. The existence of a federal constraint on state court authority, such as article II, is sufficient to justify intervention. As a result of Rehnquist\u27s miscue, the dissenters had little difficulty in rebutting the plurality\u27s justifications for review. Had Rehnquist advanced the more compelling arguments for Supreme Court review that were available to him, the article II challenge could not have been rebuffed with such ease. While my argument that the plurality and the dissents went astray in their treatment of the adequate state ground doctrine bolsters the result in Bush, it does not necessarily imply that the plurality was right on the merits. Whether the state grounds could withstand scrutiny under the proper test is a separate question from whether the Justices used the right test in the first place. My focus is on the latter issue. As far as the analysis in this paper is concerned, the Florida Court\u27s judgment may still be defensible