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The New Comity Abstention
Get PDFIn the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.
This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from precedent, which I label “the new comity abstention.” The new comity abstention doctrine, currently percolating in the lower federal courts, would bar enforcement of federal rights any time there might be some downstream effect on state court proceedings or require a federal court to review state court procedures. If fully adopted, however, the doctrine would amount to a categorical abdication of the federal courts’ role in enforcing federal rights over more than a third of state policymaking and severe threat to federal jurisdiction.
I proceed in three parts. In Part I, I define the new doctrine and demonstrate how it deviates from its antecedents in scale and scope. In Part II, I argue that the new doctrine lacks coherence, at least when comity and federalism concerns function as a quasi-jurisdictional bar at the threshold of litigation in federal court. Instead, as addressed in Part III, comity and federalism concerns are better understood as informing which remedies the federal court should adopt after adjudication on the merits, not whether to hear the case in the first place. Doing so acknowledges the federalism and comity concerns at play, mitigates the potential harms of federal court review, and still allows federal courts to safeguard access to federal rights
Kate Kelly’s Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment
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Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law
Get PDFPublished as Chapter 13 in Constitutional Patriotism as Europe’s Public Philosophy? On the Responsiveness of Post-National Law, Jan Komárek, ed.
This chapter critiques Jürgen Habermas’s concept of constitutional patriotism—and its basis in his discourse theory of democracy and law—from the analytic perspective of ‘constitutional imaginaries’, and details the consequences of this critique for the constitutional discourse of the contemporary European judiciary. In the first instance, analysis of constitutional imaginaries reveals the extent to which civic attachment to constitutional law is oriented not merely to legal principles simpliciter but also to the historical settlement of political conflict those principles reflect. This suggests that the plurality of constitutional imaginaries in the European legal space poses additional difficulties for inspiring civic attachments post-nationally. Second, understanding Habermas’s work in this light opens new avenues for rethinking the interpretive and structural tasks to which Europe’s juridical institutions should be directed. In particular, the chapter proposes more responsive forms of proceduralism able to sustain the reflexivity of constitutional imagination that post-national politics requires.https://digitalcommons.law.buffalo.edu/book_sections/1440/thumbnail.jp
Baldy Center Podcast Episode 6 Picture
No full textBook cover: Disability Rights and Religious Liberty in Education: The Story Behind Zobrest V. Catalina by David Gerber and Bruce Dierenfieldhttps://digitalcommons.law.buffalo.edu/baldy_center_images/1005/thumbnail.jp
The Presidential Coup
Get PDFWhat prevents the President from abusing the military power at his disposal to stage a coup and actively impose presidential rule upon the United States? What if generations of presidential assertions of authority, congressional acquiescence, and judicial abdication have not only laid the groundwork for the President to use military power to impose his will, but in fact have legally sanctioned such a presidential coup? And what if the informal checks and balances that historically protected against such abuse—specifically a benevolent President, a constitutionally faithful military, intra-executive branch checks, and public opinion—have also eroded to no longer function as checks?
This Article explores these questions by arguing that the decay of formal and informal checks, buttressed by historical incrementalism, has created an environment ripe for a malevolent President to use the military power at his disposal to effectuate a presidential coup. Legal scholarship seldomly takes seriously the threat of a presidential coup. Such reluctance to engage seriously with a presidential coup has been understandable, as little historical evidence suggested a President was likely to turn the military power at his disposal against the American people. Nonetheless, the increasing use of the military by the Trump Administration to circumvent the constitutional design, followed by the use of the military to quell Black Lives Matter protests in Washington, D.C., and then culminating in the President’s reluctance and failure to use the military power at his disposal to defend the U.S. Capitol during the January 2021 insurrection suggest that such a threat of a presidential coup is ever-growing and becoming increasingly realistic. Legal scholarship needs to engage with the potential of a presidential coup with seriousness, examining its risk, the means to protect against it, and whether those means are functioning. This Article presents a novel framework that does just that
Baldy Center Podcast Episode 13 Picture
No full textExhibit by Victoria-Idongesit Udondian. Photograph courtesy of Nando Alvarez-Perez.https://digitalcommons.law.buffalo.edu/baldy_center_images/1012/thumbnail.jp