Frankfurter, Abstention Doctrine, and the Development of Modern Federalism: A History and Three Futures
Lael Weinberger - Raoul Berger-Mark DeWolfe Howe Legal History Fellow, Harvard Law School.

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.


California's Proposition 47 and Effectuating State Laws in Federal Sentencing
Brenna Ledvora - BS 2015, Northwestern University; JD Candidate 2021, The University of Chicago Law School.

Proposition 47 is a California voter initiative that reduced possessory drug offenses and minor thefts from felonies to misdemeanors. The law allows individuals to retroactively reclassify their convictions and mandates that these convictions shall be considered misdemeanors “for all purposes.” Under California law, reclassified convictions cannot be predicate felonies for future state sentencing enhancements. However, federal courts have held that reclassified convictions still constitute prior convictions for federal sentencing enhancements. Thus, these convictions still trigger felony-based enhancements. This Comment argues that this result is not mandated by Supreme Court precedent and that it conflicts with California’s intent to ameliorate the effects of prior felony convictions. Proposition 47 presents a novel situation—a retroactive state law that broadly alters the underlying conviction. Under principles of comity and federalism, federal courts should give full effect to Proposition 47 and similar state laws in federal sentencing.

Litigating the Line Drawyers: Why Courts Should Apply Anderson-Burdick to Redistricting Commissions
Andrew C. Maxfield - BA 2018, University of Wisconsin–Madison; JD Candidate 2021, The University of Chicago Law School.

In the wake of the Supreme Court’s recent decision in Rucho v Common Cause, ruling partisan gerrymandering claims nonjusticiable, redistricting commissions have never been more important. These commissions remain one of the few methods to remove the redistricting process from the hands of self-interested state legislatures. To accomplish this goal, many commissions limit the number of Republicans and Democrats who can serve on the commission and bar certain political actors—such as legislators and party leaders—from serving as commissioners. Although likely necessary to ensure redistricting commissions’ independence, these provisions burden the First Amendment associational rights of the excluded individuals and their political parties. Recent litigation in Michigan has challenged the state’s commission under this theory, setting the stage for other suits to follow.

These challenges pose several questions. Chief among them is the proper constitutional standard of review to apply when evaluating associational-rights claims against redistricting commissions. Associational-rights doctrine provides two conflicting options: strict scrutiny under the Supreme Court’s patronage doctrine, or a sliding scale under the Anderson-Burdick balancing test, a standard of review often used by the courts to evaluate challenges to election laws. Plaintiffs challenging their exclusion from these commissions will likely argue for strict scrutiny, while defenders of redistricting commissions will argue for the more deferential sliding-scale scrutiny. This Comment sets out to resolve this dilemma. I evaluate the arguments for applying both strict scrutiny and Anderson-Burdick to First Amendment challenges to redistricting commissions, concluding that—both for doctrinal and normative reasons—Anderson-Burdick should apply.

Simplifying Patent Venue
Micah Quigley - BA 2018, Grove City College; JD Candidate 2021, The University of Chicago Law School.

In 2017, the Supreme Court overruled the Federal Circuit’s then-longstanding interpretation of 28 USC § 1400(b)—the statute that governs venue in patent infringement lawsuits. This ruling significantly narrowed patent venue. It also brought § 1400(b)’s neglected “regular and established place of business” test back into the light of day. Under this revived test, venue is proper if a defendant has a regular and established place of business in the judicial district where suit is brought. Despite initial guidance from the Federal Circuit, the resurrected test caused confusion and disagreement at the district court level.

One disagreement concerned whether § 1400(b) implicitly requires that the defendant have a human agent conducting business at the place in question. This can be called the “human-agent requirement.” Most district courts to address the issue—and now, the Federal Circuit itself—have endorsed the requirement. In these courts’ view, a place satisfies the “regular and established place of business” test only if an agent of the defendant is physically present, doing business there on the defendant’s behalf. This Comment argues that imposing the human-agent requirement is a mistake. First and most important, the requirement is an extratextual add-on, unmoored from the statute’s meaning. Second, it will make the early stages of patent litigation more complex, uncertain, and expensive than they already are. Third and finally, though the requirement might seem like the only way to avoid overbroad patent venue, it isn’t. In a world without the human-agent requirement, courts could limit venue by robustly enforcing the “place” requirement—which is unambiguously found in § 1400(b)’s plain text.

Exhaustion of Local Remedies and the FSIA Takings Exception: The Case for Deferring to the Executive's Recommendation
Ikenna Ugboaja - AB 2018, Harvard College; JD Candidate 2021, The University of Chicago Law School.

The Takings Exception to the Foreign Sovereign Immunities Act (FSIA) abrogates the defense of sovereign immunity when a foreign government takes property in violation of international law. But the exception does not specify whether plaintiffs must first exhaust local remedies in the relevant foreign country before filing suit in the United States. In the absence of clear statutory guidance, the circuit courts have reached divergent conclusions: the Seventh Circuit has held that the exhaustion rule is required under customary international law, the Ninth Circuit has suggested that courts could impose it at their discretion for reasons of comity, and the DC Circuit has determined that courts cannot impose the exhaustion rule under any circumstance.

This Comment argues that international law does not obligate US courts to impose the exhaustion rule and that they should not impose it at their discretion because doing so would conflict with congressional intent in a sensitive area of foreign policy. Courts should, however, require international takings plaintiffs to exhaust local remedies when the president advises them that the requirement would advance the national security or foreign policy interests of the United States. Granting a limited amount of deference to the executive branch resolves the circuit split in a manner that respects the intent of the FSIA while also minimizing undue judicial interference in the nation’s relationship with foreign countries.

Book Review

This Land Is Not Our Land
K-Sue Park - Associate Professor of Law, Georgetown University Law Center.

A Review of This Land Is Our Land: The Struggle for a New Commonwealth by Jedediah Purdy.