Deferring to foreign courts Gardner, Maggie
University of Pennsylvania law review,
08/2021, Volume:
169, Issue:
8
Journal Article
Peer reviewed
Federal judges have too many options for deferring to foreign courts, none of them particularly good. Not only have judges developed at least five different bases for declining to hear transnational ...cases, but the use of these bases also varies significantly from circuit to circuit. The courts of appeals have split over whether to recognize foreign relations abstention or prudential exhaustion, and they have developed different tests for assessing foreign parallel proceedings. Even with forum non conveniens, where the Supreme Court has provided clearer guidance, circuit practice has diverged. Thus in two recent transnational tort cases stemming from the Fukushima nuclear disaster in Japan, a district court in the First Circuit dismissed on a discretionary basis that a district court in the Ninth Circuit had rejected, while the district court in the Ninth Circuit dismissed on a discretionary basis not yet recognized by the First Circuit.
This Article uses the Fukushima cases as an opportunity to step back and assess the full range of federal judge-made doctrines for deferring to foreign courts. Its primary aim is to provide a practical roadmap for judges and litigants, one that surveys intercircuit variation, identifies best practices, and suggests doctrinal refinements. It proposes an updated and simplified rubric for forum non conveniens, a consolidated approach to foreign parallel proceedings, and a distinct doctrine for deference to foreign bankruptcies. It also argues for rejecting prudential exhaustion and abstention based on foreign relations concerns, and it encourages judges to analyze questions of judgment recognition and the extraterritorial application of federal statutes without resorting to loose invocations of "abstention" or "international comity." Judicial deference to foreign courts is sometimes necessary, but it need not be muddled or haphazard.
Advocates of bail reform argue that the cash bail system has morphed into a wealth-based incarceration scheme. Cash bail is meant to ensure that defendants appear in court for their trials. Judges ...set an amount of money a defendant must pay to secure their release from pretrial detention, and the money is returned only after the defendant makes all the necessary court appearances. Otherwise, it is forfeited to the government. In many jurisdictions, when a person is arrested, bail is assigned through a "bail schedule" that has nothing to do with individualized circumstances. Defendants who are unable to pay bail are detained pretrial, many for weeks or months.
SENTENCING GUIDELINES ABSTENTION Sidhu, Dawinder S
The American criminal law review,
03/2023, Volume:
60, Issue:
2
Journal Article
The U.S. Sentencing Guidelines remain the starting point and anchor for every sentence that federal judges impose on criminal defendants. As such, the Guidelines are a critical component of the ...American criminal justice system. The Supreme Court has categorically refused, however, to resolve circuit splits involving the Guidelines, leaving a significant gap in the coherent and fair administration of criminal justice. It has done so even while acknowledging the existence of a clear split, conceding that denying certiorari will perpetuate drastic sentencing disparities, and knowing that the U.S. Sentencing Commission, the agency responsible for amending the Guidelines, lacked a quorum to address any splits.
Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines ...and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew. This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits. Under Younger v. Harris — and the doctrine of Younger abstention — federal courts may not disrupt a state criminal proceeding by means of an injunction or declaratory judgment. Federal courts' reluctance to resolve such cases is predicated on federalism interests. Traditionally, however, federal courts have nonetheless entertained suits to stop or prevent irreparable harm, especially where an underlying state process provides an inadequate means to raise federal constitutional claims. When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave. This Article argues for an exception to Younger abstention when litigants challenge structural or systemic constitutional violations. "Structural" means a flaw that infects a judicial process's basic framework in incalculable ways, such as denial of counsel at a critical stage or a judge's financial interest in the outcome. "Systemic" means a flaw that routinely impacts litigants by way of a policy, pattern or practice, or other class-wide common set of violations. Because the United States Supreme Court has already made clear that "inadequate" state proceedings should not stand in the way of federal intervention, this exception can be adopted and implemented without major changes to existing Supreme Court precedent. No one should be in jail or punished because she is poor. Federal courts should ensure that this substantive right has practical effect.
Woolhandler and Mahoney examine takings litigation in the US. They offer an overview of the role of the federal courts in takings claims over time, with a view to providing a more complete picture ...than that supplied by focusing either on the Lochner/New Dealera dichotomy or on the advent of the 1871 Civil Rights Act. They trace the fairly robust role of the federal courts in protecting property under a nonconfiscation norm both before and during the Lochner era and points out that the legislative history of the 1871 Civil Rights Act does not support a firm conclusion that Congress intended takings claims to be litigable under section 1983. And section 1983 thereafter played little role in takings cases, which were generally pursued as claims under diversity jurisdiction or under the federal question statute, 28 U.S.C. section 1331.
Federal abstention is a judicially created doctrine by which a federal court declines to exercise its jurisdiction over a case and controversy properly before it. Abstention is aimed at preserving ...the balance of sovereignty allocated to the states and federal government as envisioned by the Framers. Of the various iterations of abstention, Younger abstention perhaps does the most to protect this balance. Despite its importance in maintaining principles of federalism, lower courts have struggled to come up with a consistent approach to Younger. This Recent Development highlights two U.S. Circuit Courts--the Seventh and Ninth--and their divergent approaches to Younger abstention and proposes that the Seventh Circuit's approach is correct as it effectively advances the principles of federalism and comity that Younger abstention was designed to protect in the first place.
ABSTAINING EQUITABLY Smith, Fred O., Jr
The Notre Dame law review,
05/2022, Volume:
97, Issue:
5
Journal Article
Peer reviewed
The doctrine of Younger abstention--which counsels federal courts not to interrupt ongoing state criminal proceedings--balances dueling considerations. On the one hand, the doctrine preserves federal ...courts' ability to exercise Congressionally conferred, properly invoked jurisdiction to prevent irreparable violations of the federal constitution. On the other, the doctrine provides space for autonomous state courts to carry out their traditional role in the realm of criminal justice. This Essay identifies four central features of the Younger doctrine that maintain this balance. By protecting these features, federal courts can ensure that Younger remains a doctrine of equitable restraint, instead of inequitable abdication.
In its first century and a half, the Supreme Court never used the term "federalism" in its opinions. The Court had talked about federal-state relations before, but the concept had gone unlabeled. ...That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court's first opinion using the term "federalism." Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, which requires federal courts to sometimes refrain from hearing cases that are within their jurisdiction.
This Article provides a historical study of Frankfurter's contribution to the modern law of judicial federalism. It documents Frankfurter's theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter's Progressive politics. They were a reaction to what he perceived as the federal courts' anti-regulatory and anti-labor attitudes.
The history—relevant today as the political discussion around the courts again echoes the Progressive Era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court's status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter's hostility to an assertive, rights-protecting judiciary. The third future would be one embracing Frankfurter's vision of abstention in the name of judicial restraint. Abstention has the potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
