Tuesday, November 30, 2010
The Supreme Court issued its opinion in Los Angeles County v. Humphries No. 09-350 today. Justice Breyer wrote for the court and held that a municipality is not liable for civil rights violations under 42 U.S.C. §1983 regardless of whether the relief sought by the plaintiffs is prospective or for monetary damages unless the plaintiffs can show that their injury was caused by a municipal policy or custom.
Further coverage available at SCOTUSblog.
Jay Tidmarsh (Notre Dame) has posted on SSRN a draft of his article, Procedure, Substance, and Erie, which is forthcoming in the Vanderbilt Law Review. Here’s the abstract:
This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process - in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context - a pillar on which present Erie analysis is based - is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural Erie” cases: that federal courts can apply their own rules to process a claim as long as, in a costless and outcome-neutral world, those rules do not affect the ex ante value of a claim at the time of its filing.
Monday, November 29, 2010
Michael G. Collins (University of Virginia School of Law) and Jonathan Remy Nash (Emory University School of Law) have posted Prosecuting Federal Crimes in State Court to SSRN.
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present, scholars have urged that state courts be allowed to entertain certain federal criminal prosecutions - prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.
A close review of the evidence - including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments - suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.