Note

Colonial Virginia: Incubator of Judicial Review

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision.

Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.

Introduction

During the British imperial era, the supreme laws of England trumped conflicting inferior colonial law. Colonial assemblies—by the terms of their colonial charters—were prohibited from enacting legislation repugnant to the laws of England. The British monarch, to both monitor the colonial assemblies and to ensure compliance with the superior laws of England, empowered the Board of Trade (“Board”) and the Privy Council with the duty to enforce the so-called repugnancy principle. That principle required the Privy Council and the Board to compare colonial legislation to English law. If the colonial legislation was, upon that comparison, deemed repugnant to the laws of England, then the law was disallowed.1 1.Disallowance was the term used to proclaim that colonial law was legally inoperative as it diverged from the laws of England. See Dudley Odell McGovney, The British Privy Council’s Power to Restrain the Legislatures of Colonial America: Power to Disallow Statutes: Power to Veto, 94 U. Pa. L. Rev. 59, 81 (1946); see also Robin L. Einhorn, American Taxation, American Slavery 15 (2006) (equating disallowance to a “veto”); Robert J. Steinfeld, The Rejection of Horizontal Judicial Review During America’s Colonial Period, 2 Critical Analysis L. 214, 218 n.19 (2015) (“[D]isallowance operated as a ‘repeal’ of the statute.”).Show More The historical record suggests that the imperial power of legislative review was not one the Privy Council and the Board were hesitant to exercise. Indeed, from 1696, when the Board of Trade was established, to 1776, when the United States declared its independence, scholars have estimated that more than 8,500 colonial laws were reviewed,2 2.Mary S. Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J. 502, 538 (2006).Show More and over 400 colonial laws were disallowed for being repugnant to the laws of England.3 3.Jonathan R.T. Hughes, Social Control in the Colonial Economy 13 n.12 (1976); see also Leon T. David, Councillors and the Law Officers in the Colonies in America, 12 Am. U. L. Rev. 23, 32 (1963) (“Of some 8,563 acts submitted for approval, it disallowed 469.”); Sharon Hamby O’Connor & Mary Sarah Bilder, Appeals to the Privy Council Before American Independence:An Annotated Digital Catalogue, 104 Law Libr. J. 83, 85 (2012) (“The Council could disallow a law; approximately 8563 were sent for review and 469 (5.5%) disallowed.”).Show More This historical system of oversight and disallowance echoes a similar, more modern institution: American judicial review. The similarity between British imperial oversight and modern judicial review has not gone unnoticed. In the words of one historian, the Privy Council and the Board subjected colonial “provincial laws to a kind of constitutional test.”4 4.Oliver Morton Dickerson, American Colonial Government 1696–1765, at 234 (1912).Show More

Within the last decade, Mary Bilder and Alison LaCroix have explored the connection between the disallowance of colonial legislation and the origin of judicial review.5 5.See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004); Alison L. LaCroix, The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology, 28 Law & Hist. Rev. 451, 466–69 (2010). But see Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty, 78 Geo. Wash. L. Rev. 1162, 1174–75 n.38 (2010). His research shows that “judges had for centuries done their duty by holding government acts unlawful and void. They had done this as to sovereign acts of the king and even as to legislation, other than acts of Parliament. As a result, early American judges did not need to establish precedents for a power of judicial review.” Id. Although Professor Hamburger offers a compelling alternative account, he overlooks the fact that even though crown officials “consistently recognized the assemblies’ authority to pass laws, they always insisted that those bodies were subordinate institutions.” Jack P. Greene, Law and Origins of the American Revolution in The Cambridge History of Law in America 447, 449 (Michael Grossberg & Christopher Tomlins eds., 2008). The insubordination of colonial assemblies beneath the British imperial apparatus thus also provides a historical antecedent from which Americans, like James Madison, could derive intellectual inspiration for American judicial review.Show More The argument is that “recurrent administrative testing of colonial statutes against a ‘constitutional’ standard exemplified in the laws of England helped pave the way for acceptance of the doctrine of judicial review in the new nation.”6 6.Joseph H. Smith, Administrative Control of the Courts of the American Plantations, 61 Colum. L. Rev. 1210, 1253 (1961).Show More Yet the extant historical scholarship devoted to this striking similarity hardly touches upon the mechanics of imperial disallowance.7 7.Astonishingly, Oliver Morton Dickerson’s American Colonial Government, which was published in 1912, remains the authoritative source on the mechanics of imperial disallowance.Show More In this respect, this Note’s first contribution is to explain the mechanics by which the repugnancy principle was enforced against inferior colonial law.

By a similar token, even fewer scholars have attempted to connect colonial legislation and the law’s surrounding historical context to the Board and the Privy Council’s ultimate repugnancy assessment.8 8.See Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law, in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz 28, 43 (Daniel W. Hamilton & Alfred L. Brophy eds., 2009).Show More The reason for the dearth of scholarly literature linking together these narratives is that there exists “no comprehensive list of disallowed acts.”9 9.Id.Show More This lacuna in source material also explains why “comparably little study has been given to the topic” of imperial review of colonial law in general.10 10.Id.Show More In response, this Note’s second contribution is to augment the existing literature by exploring the colonial experience under imperial supervision, specifically in the Colony of Virginia.

Colonial Virginia, after all, “had the largest population of any colony in North America,” possessed an influential economic and legal system, and “produced great leaders,” many of whom would go onto shape the Constitution’s structural framework.11 11.William E. Nelson, The Law of Colonial Maryland: Virginia Without Its Grandeur, 54 Am. J. Legal Hist. 168, 198–99 (2014).Show More Virginia was, on balance, “the jewel in the crown” of Britain’s overseas empire.12 12.Mary Carroll Johansen, The Relationship Between the Board of Trade and Plantations and the Colonial Government of Virginia, 1696–1775, at 38 (1992) (unpublished M.A. thesis, The College of William & Mary) (on file with The College of William & Mary Libraries).Show More This fact alone makes the absence of a thorough analysis of colonial Virginia’s interaction with the Privy Council remarkable. And this historical gap is only compounded by the fact that the “father of the Constitution,” James Madison, was himself a son of colonial Virginia.13 13.Michael P. Zuckert, Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism, in The Supreme Court and the Idea of Constitutionalism 53, 55 (Steven Kautz et al. eds., 2009).Show More In modern times, Madison is rightly memorialized for his profound influence on the Federal Constitution’s structure and for “laying the foundations of the Republic.”14 14.Charles Evans Hughes, James Madison, 18 A.B.A. J. 854, 854 (1932) (referring to Madison as the “Father of the Constitution”); see also Daniel J. Hulsebosch, Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, 59 Wm. & Mary L. Rev. 1239, 1269 (2018) (“His theory of factional checks and balances is why many consider him the most thoughtful constitution maker.”).Show More He understood the “overall logic of the new order better than anyone else at the time.”15 15.Zuckert, supra note 13, at 55.Show More His understanding of the new order was, as it turns out, deeply shaped by his experience with the old. According to Alison LaCroix, the “centerpiece of Madison’s plan to reconstitute the Republic . . . sprang directly from the institutions and practices of the British Empire, the thralldom of which the American colonies had escaped.”16 16.LaCroix, supra note 5, at 464.Show More Likewise, Michael Zuckert contends that Madison had both “an unparalleled understanding of the political nature of the Constitution,” and possessed “an unexcelled understanding of what judicial review was to be in the new system.”17 17.Zuckert, supra note 13, at 55.Show More Yet underappreciated, until now, is the influence that Privy Council disallowance of his own commonwealth’s legislation had on Madison’s frame of mind and his approach to subordinating the will of state and national electorates to the supreme law of the land.

Herein lies this Note’s third contribution. In short, I seek to enrich the existing scholarship on the origins of judicial review by offering a targeted analysis of the experience in colonial Virginia. Many scholars have argued that the concept of judicial review originated from Madison’s proposals at the Constitutional Convention.18 18.See Steven G. Calabresi, Originalism and James Bradley Thayer, 113 Nw. U. L. Rev. 1419, 1450–51 (2019) (building on James Bradley Thayer’s discussion of Madison’s proposed continuation of the imperial practice of legislative review); see also Sean Gailmard, Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America, 113 Am. Pol. Sci. Rev. 778, 788 (2019) (“My argument is that delegates to the Constitutional Convention of 1787 recognized and sought to preserve benefits of Crown review by the Privy Council as an external bound on legislation.”).Show More The general story tracing the link between the Privy Council, the Constitutional Convention, and the federal courts’ ability to disallow repugnant legislation has been told.19 19.Section 25 of the Judiciary Act of 1789 granted federal courts jurisdiction over state courts in matters where “the validity of a statute” is drawn into question “on the ground of their being repugnant to the constitution.” Judiciary Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73, 85. In essence, the federal courts were empowered, much like the Board and the Privy Council, with the duty to enforce the repugnancy principle against state and federal legislation that conflicted, not with the laws of England, but with the text of the Constitution.Show More Against the backdrop of these abstract accounts, this Note restricts the study of Privy Council oversight specifically to colonial Virginia. This narrow focus better facilitates an understanding of how Madison, through his knowledge of actual practice, envisioned the will of subordinate legislatures conforming to the supremacy of the new Federal Constitution.20 20.Indeed, Professor Jordan Cash has observed that “judicial review had long been practiced in Virginia, and the English jurisdictional tradition continued to be influential into the early national period.” Jordan T. Cash, The Court and the Old Dominion: Judicial Review Among the Virginia Jeffersonians, 35 Law & Hist. Rev. 351, 365 (2017). Although less general than most accounts, Professor Cash’s assertion still paints with too broad a brush, as it does not explore British imperial oversight’s influence upon Madison’s proposed constitutional solutions.Show More As this Note uncovers, Madison himself thought deeply about imperial review of colonial legislation—particularly that of colonial Virginia—in the years leading up to the Constitutional Convention. And it was from Madison’s Privy Council-influenced proposals that judicial review ultimately sprung. This Note, therefore, confines itself to the study of Privy Council oversight of colonial Virginia and explores the story of three Virginian colonial acts, and their interaction with the British imperial system, to cast useful light on Madison’s vision of judicial review and constitutional theory more generally.

This Note is divided into three Parts. Part I discusses the history of the Board of Trade and the Privy Council’s enforcement of the repugnancy principle. Surprisingly, that enforcement process, and the innerworkings of both the Privy Council and the Board, has received remarkably little scholarly attention. Part II details the three Virginian Acts in chronological order. Discussing each Act’s historical context and ultimate demise brings to the surface some of the major issues that plagued colonial society. It also calls attention to the process and general cultural perception of legislative review in colonial Virginia. Part III turns to the influence imperial oversight of Virginia’s colonial legislation had on Madison—an influence that inspired Madison’s proposed federal constitutional framework. In short, the influence that both the Privy Council and Board’s scrutiny of Virginia’s colonial legislation had on Madison’s attempt to restrain the democratic will of state and national electorates may help us more clearly understand the imperial, colonial origin of judicial review.

  1. * University of Virginia School of Law, J.D. 2020. I am grateful first and foremost for Professor Cynthia Nicoletti and her insightful input, unwavering patience, and immense generosity. I would like to thank both Christian Talley and Anna Cecile Pepper for helpful comments and also the members of the Virginia Law Review, especially Clay Phillips, for careful editing and feedback. I am solely responsible for all errors. ↑
  2. Disallowance was the term used to proclaim that colonial law was legally inoperative as it diverged from the laws of England. See Dudley Odell McGovney, The British Privy Council’s Power to Restrain the Legislatures of Colonial America: Power to Disallow Statutes: Power to Veto, 94 U. Pa. L. Rev
    .

    59, 81 (1946); see also Robin L. Einhorn, American Taxation, American Slavery 15 (2006) (equating disallowance to a “veto”); Robert J. Steinfeld, The Rejection of Horizontal Judicial Review During America’s Colonial Period, 2 Critical Analysis L. 214, 218 n.19 (2015) (“[D]isallowance operated as a ‘repeal’ of the statute.”). ↑

  3. Mary S. Bilder, The Corporate Origins of Judicial Review, 116 Yale L.J
    .

    502, 538 (2006). ↑

  4. Jonathan R.T. Hughes, Social Control in the Colonial Economy 13 n.12 (1976); see also Leon T. David, Councillors and the Law Officers in the Colonies in America, 12 Am. U. L. Rev
    .

    23, 32 (1963) (“Of some 8,563 acts submitted for approval, it disallowed 469.”); Sharon Hamby O’Connor & Mary Sarah Bilder, Appeals to the Privy Council Before American Independence: An Annotated Digital Catalogue, 104 Law Libr. J

    .

    83, 85 (2012) (“The Council could disallow a law; approximately 8563 were sent for review and 469 (5.5%) disallowed.”). ↑

  5. Oliver Morton Dickerson, American Colonial Government 1696–1765, at 234 (1912). ↑
  6. See Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (2004); Alison L. LaCroix, The Authority for Federalism: Madison’s Negative and the Origins of Federal Ideology, 28 Law & Hist. Rev. 451, 466–69 (2010). But see Philip Hamburger, A Tale of Two Paradigms: Judicial Review and Judicial Duty, 78 Geo. Wash. L. Rev. 1162, 1174–75 n.38 (2010). His research shows that “judges had for centuries done their duty by holding government acts unlawful and void. They had done this as to sovereign acts of the king and even as to legislation, other than acts of Parliament. As a result, early American judges did not need to establish precedents for a power of judicial review.” Id. Although Professor Hamburger offers a compelling alternative account, he overlooks the fact that even though crown officials “consistently recognized the assemblies’ authority to pass laws, they always insisted that those bodies were subordinate institutions.” Jack P. Greene, Law and Origins of the American Revolution in The Cambridge History of Law in America 447, 449 (Michael Grossberg & Christopher Tomlins eds., 2008). The insubordination of colonial assemblies beneath the British imperial apparatus thus also provides a historical antecedent from which Americans, like James Madison, could derive intellectual inspiration for American judicial review. ↑
  7. Joseph H. Smith, Administrative Control of the Courts of the American Plantations, 61 Colum. L. Rev. 1210, 1253 (1961). ↑
  8. Astonishingly, Oliver Morton Dickerson’s American Colonial Government, which was published in 1912, remains the authoritative source on the mechanics of imperial disallowance. ↑
  9. See Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law, in Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz 28, 43 (Daniel W. Hamilton & Alfred L. Brophy eds., 2009). ↑
  10. Id. ↑
  11. Id. ↑
  12. William E. Nelson, The Law of Colonial Maryland: Virginia Without Its Grandeur, 54 Am. J. Legal Hist. 168, 198–99 (2014). ↑
  13. Mary Carroll Johansen, The Relationship Between the Board of Trade and Plantations and the Colonial Government of Virginia, 1696–1775, at 38 (1992) (unpublished M.A. thesis, The College of William & Mary) (on file with The College of William & Mary Libraries). ↑
  14. Michael P. Zuckert, Judicial Review and the Incomplete Constitution: A Madisonian Perspective on the Supreme Court and the Idea of Constitutionalism, in The Supreme Court and the Idea of Constitutionalism 53, 55 (Steven Kautz et al. eds., 2009). ↑
  15. Charles Evans Hughes, James Madison, 18 A.B.A. J. 854, 854 (1932) (referring to Madison as the “Father of the Constitution”); see also Daniel J. Hulsebosch, Being Seen Like a State: How Americans (and Britons) Built the Constitutional Infrastructure of a Developing Nation, 59 Wm. & Mary L. Rev. 1239, 1269 (2018) (“His theory of factional checks and balances is why many consider him the most thoughtful constitution maker.”). ↑
  16. Zuckert, supra note 13, at 55. ↑
  17. LaCroix, supra note 5, at 464. ↑
  18. Zuckert, supra note 13, at 55. ↑
  19. See Steven G. Calabresi, Originalism and James Bradley Thayer, 113 Nw. U. L. Rev. 1419, 1450–51 (2019) (building on James Bradley Thayer’s discussion of Madison’s proposed continuation of the imperial practice of legislative review); see also Sean Gailmard, Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America, 113 Am. Pol. Sci. Rev. 778, 788 (2019) (“My argument is that delegates to the Constitutional Convention of 1787 recognized and sought to preserve benefits of Crown review by the Privy Council as an external bound on legislation.”). ↑
  20. Section 25 of the Judiciary Act of 1789 granted federal courts jurisdiction over state courts in matters where “the validity of a statute” is drawn into question “on the ground of their being repugnant to the constitution.” Judiciary Act of Sept. 24, 1789, ch. 20, § 25, 1 Stat. 73, 85. In essence, the federal courts were empowered, much like the Board and the Privy Council, with the duty to enforce the repugnancy principle against state and federal legislation that conflicted, not with the laws of England, but with the text of the Constitution. ↑
  21. Indeed, Professor Jordan Cash has observed that “judicial review had long been practiced in Virginia, and the English jurisdictional tradition continued to be influential into the early national period.” Jordan T. Cash, The Court and the Old Dominion: Judicial Review Among the Virginia Jeffersonians, 35 Law & Hist. Rev. 351, 365 (2017). Although less general than most accounts, Professor Cash’s assertion still paints with too broad a brush, as it does not explore British imperial oversight’s influence upon Madison’s proposed constitutional solutions. ↑

Redefining the Relationship Between Stone and AEDPA

This Note challenges the current conception of the availability of federal habeas corpus relief for state prisoners claiming a violation of the Fourth Amendment. Since the Supreme Court’s 1973 decision in Stone v. Powell, federal courts have analyzed Fourth Amendment violations under a different legal regime than that used for other constitutional violations challenged on habeas corpus. This has persisted despite passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended the federal habeas corpus statute for state prisoners, 28 U.S.C. § 2254. Federal courts have largely held that AEDPA has not changed the relationship between Stone’s holding and Section 2254. This Note argues that the current conception of federal habeas corpus review of Fourth Amendment claims is fundamentally inconsistent and asserts that the AEDPA standard should be applied to Fourth Amendment claims brought by state prisoners.

Introduction

On June 17, 2013, the Baton Rouge Police Department received an unconfirmed anonymous tip that Cedric Spears was trafficking cocaine and in possession of a firearm in his home.1 1.Spears v. Vannoy(Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018).Show More Two police officers obtained Spears’s criminal history, confirmed only that he was a convicted felon, and, without a warrant, proceeded to his apartment complex.2 2.Id.Show More The officers waited in the parking lot until just before midnight to approach the apartment, when, coincidentally, Spears opened the door.3 3.Id.Show More The officers spotted a gun in his apartment.4 4.Id.Show More After officers gathered Spears and the apartment’s other occupants into a central location and patted them down, Spears was handcuffed and read his rights.5 5.Id.Show More

Spears admitted to owning the gun.6 6.Id.Show More On November 4, 2013, he was convicted on one count of felon in possession of a firearm and was sentenced to eighteen years of hard labor without benefit or probation, parole, or suspension of sentence.7 7.Id.Show More Spears filed a pro se appeal to the Louisiana Court of Appeal for the First Circuit, arguing that the trial court wrongly denied his motion to suppress the evidence resulting from the illegal warrantless search.8 8.Id.Show More His appeal was denied.9 9.Id.Show More He then petitioned for supervisory review in the Louisiana Supreme Court.10 10.Id.Show More His petition was denied.11 11.Id.Show More Spears then filed a pro se petition for federal habeas corpus relief in the Middle District of Louisiana.12 12.Id.Show More This petition was denied, as well.13 13.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation).Show More

In denying Spears’s habeas petition, the federal court simply stated that Fourth Amendment violations are “generally not cognizable on federal habeas review.”14 14.Spears I,2018 WL 2423017, at *2.Show More This categorical denial is based on the Supreme Court’s 1976 decision in Stone v. Powell,15 15.428 U.S. 465 (1976).Show More which held that a state prisoner may not be granted federal habeas corpus relief based on a Fourth Amendment violation “where the State has provided an opportunity for full and fair litigation of [that] Fourth Amendment claim.”16 16.Id. at 482, 494.Show More Despite Spears’s claim of a “defective warrant”—or lack of a warrant—the court held that the Fifth Circuit only requires the trial court to provide “an opportunity” to litigate one’s claim, nothing further.17 17.Spears I, 2018 WL 2423017, at *2–3.Show More A mere opportunity to litigate a Fourth Amendment claim in state court is all that is required for a federal court to refuse to even consider a state prisoner’s habeas petition.18 18.Id.at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)).Show More In Spears’s case, the federal district court went on to deny him a certificate of appealability, terminating his one remaining option.19 19.Spears v. Vannoy(Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018).Show More Despite no search warrant and arguably no probable cause to approach the house, Cedric Spears was searched, tried, convicted, and sentenced to eighteen years in prison.20 20.Spears I,2018 WL 2423017, at *1, *3–4.Show More And the federal court would not even entertain his petition for habeas corpus.

As displayed in Spears’s case, federal courts currently hold Stone v. Powell to be controlling when state prisoners allege a Fourth Amendment violation on habeas. All other constitutional violations, on the other hand, are adjudicated under a different standard provided by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).21 21.Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d).Show More The two regimes have at least one primary difference. While Stone restricts the cognizance of such habeas petitions, AEDPA at least allows federal courts to review the petitioner’s claim. Fourth Amendment violations are the only constitutional violations not litigated under the AEDPA standard. Therefore, if Spears was alleging a due process violation or bringing a claim for ineffective assistance of counsel, his case would at least have been heard by a federal court rather than dismissed as not cognizable.

This Note argues that the current approach adopted by the federal courts is incorrect in light of AEDPA. Instead of looking to Stone for guidance, federal courts should adopt the AEDPA standard for habeas review in the context of alleged Fourth Amendment violations. This presents a rare opportunity to right the current course of the federal courts. With this approach, federal courts would treat Fourth Amendment violations the same as every other constitutional violation with respect to federal habeas petitions, instead of relegating Fourth Amendment claims to a lower tier.

Adopting the AEDPA standard will provide four primary benefits. First, this change will simplify the process for state prisoners. This is especially important for those representing themselves pro se, like Cedric Spears. Holding alleged Fourth Amendment violations to a different standard than all other constitutional harms only further complicates an already complex area of law that affects many criminal defendants.22 22.According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study, 2000–2006, at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM].Show More Second, it would resolve a split among the federal circuits as to how to interpret the meaning of the Court’s language in Stone, and thereby create a uniform, national standard of review. A uniform, national standard is vitally important because where one’s claim is brought should not determine whether that state prisoner has access to federal habeas review. Third, adopting the AEDPA standard will allow state prisoners to actually have their federal habeas petitions reviewed, rather than denied without consideration, as Spears’s was. As a matter of procedural justice, all habeas petitioners deserve the right to be heard, regardless of the nature of their claim. Litigants, especially pro se litigants, can use this Note as a roadmap to challenge the current legal regime and, hopefully, have their petitions heard by the federal courts.

Finally, adopting this approach will allow any future statutory reform to current habeas corpus law to include claims alleging violations of the Fourth Amendment, rather than continue to leave them behind. Fourth Amendment violations are treated differently than all other constitutional violations. While all other constitutional violations are governed by AEDPA, Fourth Amendment violations are treated as outside the statutory scheme. Adopting this approach, however, brings Fourth Amendment violations back into the fold of AEDPA alongside all other constitutional violations. If federal courts continue to treat Fourth Amendment violations as outside of the AEDPA statutory scheme,23 23.See infra Part III.Show More then future habeas reform will not affect habeas petitions alleging Fourth Amendment violations. Thus, if the language of AEDPA is amended, under this proposed approach, the statutory reform would not further widen the gap between how Fourth Amendment claims are treated and how all other constitutional claims are treated.

As explained below, the two regimes—review under AEDPA and review under Stone—currently produce similar outcomes;24 24.See infra Section II.C, Part III.Show More however, future changes to the AEDPA standard could yield different outcomes for Fourth Amendment violations and all other constitutional violations. Adopting the AEDPA standard will have truly tangible benefits to defendants, practitioners, and judges even if it may not have an enormous impact on the number of federal habeas petitions ultimately granted for state prisoners.25 25.See infra Part III.Show More As one commentator has put it, habeas corpus has played an “important role . . . as a postconviction remedy” and has the “unique nature and suitability . . . to bring about transformative change.”26 26.LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions,69 Mercer L. Rev. 453, 453 (2018).Show More

Surprisingly, despite the significant academic attention dedicated to federal habeas corpus, little attention has been focused on the collateral review of alleged Fourth Amendment violations. Much of the post-AEDPA academic literature identifies and defines the standard set forth in AEDPA,27 27.See e.g.,John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495.Show More further defines the standard set forth in Stone independent from AEDPA, 28 28.See e.g.,Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010).Show More or argues for an overhaul of the current federal habeas system altogether.29 29.See e.g.,Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009).Show More Some of the nation’s leading federal courts textbooks do not even specifically address this issue.30 30.See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation 141–50 (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations 966 (9th ed. 2018)(speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”).Show More

Only one scholar has touched on the relationship between Stone and AEDPA. In a 2006 article, Professor Steven Semeraro argued that the historical changes in the treatment of the exclusionary rule, which is the primary vehicle by which courts remedy Fourth Amendment violations, coupled with the changes to habeas practice generally, require that Stone be overruled.31 31.Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, 58 Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85.Show More Professor Semeraro’s argument is primarily focused on Stone’s deficiencies in modern litigation and the reasons that decision should be overturned rather than, as this Note argues, the reasons why AEDPA specifically should replace it.32 32.See id. at 986.Show More This Note examines the various possible solutions to reconciling the language of Stone with the text of AEDPA and argues for a clear, simple, statutory text-based rule for the federal courts to follow.

Part II of this Note reviews the legal history of the availability of habeas corpus relief for violations of the Fourth Amendment. It summarizes the evolution of federal habeas corpus law from the Supreme Court’s landmark decision in Brown v. Allen,33 33.344 U.S. 443 (1953).Show More to its Fourth Amendment carve out in Stone v. Powell, to the enactment of AEDPA. Part III describes the current approach taken to federal habeas petitions brought by state prisoners alleging a violation of the Fourth Amendment and why there is a need for change. Part IV analyzes two possible solutions to reconciling the standard set forth by AEDPA with the Stone decision. Finally, Part V proposes that federal district courts adopt a third solution and hold that the AEDPA standard replace Stone’s framework with respect to Fourth Amendment claims going forward.

  1. * J.D., University of Virginia School of Law, 2019. I would like to extend a special thanks to Professor Peter W. Low for supervising my research, for without his help, this would not be possible. Thanks are also owed to Olivia Vaden, Zachary Ingber, Spencer Ryan, and Jessie Michelin for their helpful feedback and unwavering support throughout this process. ↑

  2. Spears v. Vannoy (Spears I), Civ. No. 15-495-SDD-RLB, 2018 WL 2423017, *1 (M.D. La. Apr. 30, 2018). ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6. Id. ↑
  7. Id. ↑
  8. Id. ↑
  9. Id. ↑
  10. Id. ↑
  11. Id. ↑
  12. Id. ↑
  13. Id. ↑
  14. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018) (adopting the magistrate judge’s report and recommendation). ↑
  15. Spears I, 2018 WL 2423017, at *2. ↑
  16. 428 U.S. 465 (1976). ↑
  17. Id. at 482, 494. ↑
  18. Spears I, 2018 WL 2423017, at *2–3. ↑
  19. Id. at *2 (citing Carver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). ↑
  20. Spears v. Vannoy (Spears II), Civ. No. 15-495-SDD-RLB, 2018 WL 2422749, *1 (M.D. La. May 29, 2018). ↑
  21. Spears I, 2018 WL 2423017, at *1, *3–4. ↑
  22. Pub. L. No. 104-132, 110 Stat. 1218. AEDPA amended 28 U.S.C. § 2254, the sole statute governing habeas corpus review for state prisoners; thus, “the AEDPA standard” refers to the standard of review enacted as a result of the passage of AEDPA and is codified at 28 U.S.C. § 2254(d). ↑
  23. According to a study funded by the United States Department of Justice, state prisoners file about 16,000 to 18,000 habeas petitions every year. Unfortunately, a breakdown by constitutional violation is not available. See Nancy J. King et al., Habeas Corpus Litigation in United States District Courts: An Empirical Study
    , 2000–2006,

    at ii, iv (2013), https://doi.org/10.3886/ICPSR21200.v1 [https://perma.cc/Z7RS-AECM]. ↑

  24. See infra Part III. ↑
  25. See infra Section II.C, Part III. ↑
  26. See infra Part III. ↑
  27. LeRoy Pernell, Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions
    ,
    69

    Mercer L. Rev.

    453

    , 453 (2018). ↑

  28. See e.g., John H. Blume, AEDPA: The “Hype” and The “Bite,” 91 Cornell L. Rev. 259, 272–73 (2006); Evan Tsen Lee, Section 2254(d) of the Federal Habeas Statute: Is It Beyond Reason?, 56 Hastings L.J. 283, 283 (2004); Adam N. Steinman, Reconceptualizing Federal Habeas Corpus for State Prisoners: How Should AEDPA’s Standard of Review Operate After Williams v. Taylor?, 2001 Wis. L. Rev. 1493, 1495. ↑
  29. See e.g., Justin F. Marceau, Challenging the Habeas Process Rather Than the Result, 69 Wash. & Lee L. Rev. 85, 141 (2012); Justin F. Marceau, Don’t Forget Due Process: The Path Not (Yet) Taken in § 2254 Habeas Corpus Adjudications, 62 Hastings L.J. 1, 17, 26–27 (2010). ↑
  30. See e.g., Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 797 (2009). ↑
  31. See, e.g., Brandon L. Garrett & Lee Kovarsky, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation
    141–50

    (2013) (failing to discuss the issue); Peter W. Low et al., Federal Courts and the Law of Federal-State Relations

    966

    (9th ed. 2018) (speculating only that AEDPA “may have introduced a subtle but not fundamental change in the meaning of Stone v. Powell”). ↑

  32. Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus,
    58

    Rutgers L. Rev. 983, 1016–18 (2006). Professor Semeraro also notes that “there has been remarkably little historical analysis directed at the judicial treatment of collateral search-and-seizure claims.” Id. at 984–85. ↑

  33. See id. at 986. ↑
  34. 344 U.S. 443 (1953). ↑

Colorado River Abstention: A Practical Reassessment

When duplicative civil suits proceed simultaneously in both state and federal court, a waste of resources is bound to occur. Nevertheless, the Supreme Court has maintained that federal courts must typically retain jurisdiction over such concurrent litigation. Under the Colorado River abstention doctrine, only “exceptional circumstances,” beyond the mere pendency of a parallel state case, will permit a federal court to relinquish jurisdiction in favor of the state action. How have the lower federal courts responded to this mandate to take jurisdiction, given the inherent waste and confusion engendered by concurrent litigation? And is there a more coherent and efficient way to manage this symptom of our dual federal-state court system? This Note seeks to answer these questions by focusing on the practical application of Colorado River “on the ground” in the lower courts, a subject largely unexplored by the otherwise voluminous scholarship on federal abstention.

By surveying decades of cases involving Colorado River abstention in two federal courts of appeals and two district courts, this Note reaches a startling conclusion. Driven by a lack of guidance from the U.S. Supreme Court and a desire to rid their dockets of duplicative suits, the lower courts have taken wildly divergent approaches to Colorado River. The Second Circuit Court of Appeals, for example, has applied the doctrine rigidly, demanding that district courts retain jurisdiction in all but the most exceptional circumstances. Under pressure from this circuit precedent, judges in the Southern District of New York have frequently sought to “effectively” abstain via alternative means, simultaneously relinquishing federal jurisdiction and frustrating appellate review. When they instead attempt to proceed to judgement rather than effectively abstain, the result is typically (and unsurprisingly) a significant waste of judicial resources. On the other hand, the Seventh Circuit has taken a highly permissive view of Colorado River abstention, watering down the otherwise restrictive doctrine. Judges in the Northern District of Illinois have taken up this view with alacrity, abstaining pursuant to Colorado River in the vast majority of cases involving parallel state litigation, subject only to limited and deferential appellate review.

This inconsistent doctrinal development could hardly be described as desirable—a combination of informal abstention and judicial waste in the Second Circuit compared with virtually unfettered discretion to formally abstain in the Seventh Circuit. Thus, this Note concludes with a comprehensive proposal to bring greater structure and coherency to the doctrine while avoiding both of these negative results.

If you can think of a subject which is interrelated and inextricably combined with another subject, without knowing anything about or giving any consideration to the second subject, then you have a legal mind.1 1.Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell).Show More

Introduction

Of the numerous complexities inherent in the United States’ dual federal-state court system, the potential for concurrent litigation is one of the most anomalous and vexing. Concurrent litigation, as it will be discussed in this Note, occurs when adverse parties simultaneously litigate the same or similar claims in both federal and state court.2 2.See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note.Show More Because the subject-matter jurisdictions of these dual judicial systems are largely concurrent,3 3.Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy].Show More this phenomenon is not uncommon. Though seemingly at odds with the U.S. Supreme Court’s insistence that the state and federal courts “are not foreign to each other, nor to be treated by each other as such, but as courts of the same country,”4 4.Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137).Show More parallel state-federal litigation is nonetheless permitted, and duplicative cases are generally allowed to proceed in both courts simultaneously.5 5.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))).Show More Notwithstanding the inherently wasteful nature of such litigation,6 6.James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”).Show More the ability of a federal court to decline jurisdiction over a case that is duplicative of an ongoing state proceeding is, at least in theory, extremely narrow.7 7.Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”).Show More

As courts of limited jurisdiction, the federal courts possess only the jurisdiction conferred by the Constitution and congressional statute.8 8.Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).Show More While it is traditionally accepted that Congress retains plenary power to control the jurisdiction of the lower federal courts,9 9.Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75.Show More whether those courts are required to exercise the jurisdiction given them is less certain.10 10.For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction).Show More Where state and federal courts enjoy overlapping jurisdiction, the answer to that question is governed partially by the abstention doctrines.11 11.See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003).Show More Federal abstention law comprises a series of “judge-made” doctrines12 12.Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law).Show More that “identify the circumstances in which federal courts deem it appropriate to refrain from adjudicating a case to permit some other body—typically a state court—to adjudicate it first.”13 13.Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”).Show More

It is the most recently developed of these doctrines,14 14.The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971).Show More known as Colorado River abstention, that governs a federal court’s limited ability to refrain from exercising jurisdiction over cases involving concurrent litigation.15 15.Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention).Show More As described by the Supreme Court in the eponymous case of Colorado River Water Conservation District v. United States,16 16.424 U.S. 800 (1976).Show More this doctrine is a carefully circumscribed exception to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.”17 17.Id. at 817.Show More The Court acknowledged that considerations of judicial economy and efficiency could indeed permit a federal court to decline jurisdiction in this context, but it emphasized that “the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention” under the other abstention doctrines.18 18.Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983).Show More

Since its promulgation in 1976, Colorado River abstention has been the subject of significant scholarly commentary, both favorable and critical.19 19.It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10.Show More Though the academy has been quick to take sides on the propriety and usefulness of the doctrine, commentators have devoted scant attention to its function in practice. Most discussion of the topic has been theoretical, and there has been virtually no effort to systematically analyze how the doctrine is applied by the lower courts.20 20.Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)).Show More Without a picture of the practical import of Colorado River abstention, it is difficult to validate much of the scholarly commentary, both positive and negative. Given that the Supreme Court has scarcely addressed the topic in more than three decades,21 21.See infra notes 60–68 and accompanying text.Show More and hence the bulk of the doctrinal development has occurred in the lower courts, this gap in the literature is all the more significant.

The purpose of this Note is to begin closing that gap by analyzing the degree to which lower federal courts fulfill their “virtually unflagging obligation” in practice. To do so, I reviewed all opinions that referenced Colorado River abstention over the course of ten years, 2008–2018, in two federal district courts, the U.S. District Court for the Southern District of New York and the Northern District of Illinois. I did the same with twenty-five years of opinions, 1993–2018, issued by the appellate courts to which cases from those districts are appealed, the U.S. Courts of Appeals for the Second and Seventh Circuits.22 22.A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008).Show More

Various factors informed my choice of both the courts and timeframe for analysis. With respect to courts, I chose the Southern District of New York and the Northern District of Illinois for three reasons. First, each handles a high volume of civil litigation and hears a wide variety of civil cases.23 23.In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT].Show More Second, the decisions of these courts are appealed to two different courts of appeals, enabling an investigation of differences in doctrinal development and application between circuits. Third, and most importantly, they appear to have heard the highest number of requests to abstain under Colorado River over the applicable timeframe.24 24.This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each.Show More Thus, focusing on these two courts was intended to enable an analysis of a diversity of Colorado River cases decided by judges relatively familiar with the doctrine. The temporal scope was chosen partially for simple administrative feasibility and to capture the most recent doctrinal developments. Furthermore, as a portion of the research involved analyzing the time between a case being filed and reaching judgment,25 25.See infra note 119 and accompanying text.Show More it was essential that the analyzed cases be governed by a relatively consistent pleading standard. Therefore, the starting date was chosen so as to fall after the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly,26 26.550 U.S. 544 (2007).Show More which announced the heightened “plausibility” pleading standard for federal suits.27 27.Id. at 556–57.Show More

Analysis of these cases reveals stark trends. By and large, the application of Colorado River abstention in the lower courts is a story of confusion and unpredictability. Struggling with a paucity of guidance from the Supreme Court, the courts of appeals and their corresponding district courts have taken divergent approaches to the issue. Federal cases involving parallel state court litigation can expect wildly different treatment if filed in the Southern District of New York versus the Northern District of Illinois. Moreover, though they take nearly opposite approaches, neither court’s methodology has furthered the goals of either Colorado River abstention’s critics or its supporters. Indeed, it could be said that the worst fears of both sides of the argument have been realized—the doctrine as currently applied promotes judicial waste, creates uncertainty for judges and litigants alike, and often results in the parties being denied access to a federal forum without a sufficiently clear (or any) rationale.

This Note addresses these issues and considers their resulting implications in four parts. Part I provides necessary background. It briefly reviews the types and causes of concurrent state-federal litigation. It then traces the historical development in the lower federal courts of what would come to be known as Colorado River abstention. This Part concludes with an overview of the doctrine itself as promulgated by the Supreme Court in Colorado River and subsequent cases. Part II presents the findings of my lower court research. It summarizes the relevant doctrinal development in each circuit then analyzes, both quantitatively and qualitatively, the application of that doctrine in the district courts. Part III synthesizes the conclusions of the lower court research and proposes an alternative framework under which questions of Colorado River abstention could be decided. Given the unsatisfactory nature of the doctrine as currently applied, the purpose of this proposal is to create greater theoretical coherence and decisional consistency while simultaneously maximizing efficiency and conserving judicial resources. Part IV concludes by briefly addressing and rebutting potential objections to the proposal offered in Part III. In sum, this Note offers a practical reassessment of what could be a valuable doctrine of federal courts law but what currently represents little more than another source of needless litigation over jurisdiction.

  1. * J.D., University of Virginia School of Law, 2019. I am indebted to Professors John C. Jeffries, Jr. and Caleb Nelson for their helpful comments and discussions. Special thanks are also due to the members of the Virginia Law Review who assisted in the editing and preparation of this piece, including Nick Carey, Julian Kritz, Laura Toulme, Edward Wixler, and many others. Any errors are my own. ↑
  2. Thurman Arnold, Fair Fights and Foul: A Dissenting Lawyer’s Life 20–21 (1965) (quoting Professor Thomas Reed Powell). ↑
  3. See Josue Caballero, Note, Colorado River Abstention Doctrine in the Fifth Circuit: The Exceptional Circumstances of a Likely Reversal, 64 Baylor L. Rev. 277, 279–80 (2012) (describing this phenomenon in the state-federal context). Concurrent litigation can also arise between two federal courts, two state courts, or even within a single state court system. Allan D. Vestal, Repetitive Litigation, 45 Iowa L. Rev. 525, 525 (1960) [hereinafter Vestal, Repetitive Litigation]. These other forms of concurrent litigation are beyond the scope of this Note. ↑
  4. Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507–08 (1962) (citing Clafin v. Houseman, 93 U.S. 130, 136 (1876)); Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347, 1350 (2000) [hereinafter Redish, Intersystemic Redundancy]. ↑
  5. Howlett v. Rose, 496 U.S. 356, 367 (1990) (quoting Clafin, 93 U.S. at 137). ↑
  6. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976) (“Generally, as between state and federal courts, the rule is that ‘the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . .’” (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910))). ↑
  7. James C. Rehnquist, Taking Comity Seriously: How to Neutralize the Abstention Doctrine, 46 Stan. L. Rev. 1049, 1064 (1994) (describing concurrent litigation as “patently wasteful”). ↑
  8. Colo. River, 424 U.S. at 817–19 (explaining that federal courts should only defer to concurrent state court proceedings in “exceptional” circumstances and that “[o]nly the clearest of justifications will warrant dismissal”). ↑
  9. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). ↑
  10. Julian Velasco, Congressional Control over Federal Court Jurisdiction: A Defense of the Traditional View, 46 Cath. U. L. Rev. 671, 671–72 (1997) (“The orthodox view long has been that Congress possesses nearly plenary authority to restrict federal court jurisdiction.”). The canonical citation for that view (also known as the “traditional” view) is Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850). Velasco, supra, at 674–75. ↑
  11. For examples of the differing views on this topic, compare Martin H. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) [hereinafter Redish, Separation of Powers] (arguing that federal courts have little discretion to decline jurisdiction conferred by Congress), with David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543 (1985) (arguing for greater judicial discretion over jurisdiction). ↑
  12. See Leonard Birdsong, Comity and Our Federalism in the Twenty-First Century: The Abstention Doctrines Will Always Be with Us—Get Over It!!, 36 Creighton L. Rev. 375, 376 (2003). ↑
  13. Zwickler v. Koota, 389 U.S. 241, 248 (1967); see also Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 824–25 (2008) (describing the abstention doctrines as examples of federal common law). ↑
  14. Barrett, supra note 12, at 824; see also Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (“The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.”). ↑
  15. The three earlier-developed abstention doctrines are also named after the cases in which they were first articulated. Pullman abstention, a relative of the doctrine of constitutional avoidance, governs situations in which a federal court can abstain to allow a state court to answer unsettled questions of state law that are relevant to the federal case and that may obviate the need to decide a difficult constitutional question. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 498 (1941). Burford abstention permits federal courts to decline jurisdiction to avoid disrupting a complex state regulatory scheme. See Burford v. Sun Oil Co., 319 U.S. 315, 332 (1943). Finally, Younger abstention prevents federal courts, absent a showing of bad faith or harassment, from enjoining ongoing state criminal or quasi-criminal proceedings. See Younger v. Harris, 401 U.S. 37, 54 (1971). ↑
  16. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817–19 (1976). Though the Supreme Court declined to describe the doctrine promulgated in Colorado River as a form of abstention, see id. at 817, there seems to be no principled basis for this distinction. Given that most lower court judges and several Supreme Court Justices have referred to the Colorado River doctrine as a version of abstention, for the sake of simplicity I will refer to it as such. See 17A Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 4247, at 471 nn.77–78 (3d ed. 2007) (collecting cases referring to the doctrine as Colorado River abstention). ↑
  17. 424 U.S. 800 (1976). ↑
  18. Id. at 817. ↑
  19. Id. at 817–18. Note that declining jurisdiction in this context could constitute either a stay or dismissal of the federal case, because when a district court abstains pursuant to Colorado River it is assumed that there will be no further proceedings in the federal court except perhaps application of res judicata upon the state court’s resolution of the controversy. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). ↑
  20. It would be both impossible and unproductive to attempt an exhaustive survey of the literature on Colorado River abstention here. For representative examples of generally positive commentary, see Richard H. Fallon, Jr., Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking, 107 Nw. U. L. Rev. 847 (2013); Gene R. Shreve, Pragmatism Without Politics—A Half Measure of Authority for Jurisdictional Common Law, 1991 BYU L. Rev. 767 (1991); Ann Althouse, The Humble and the Treasonous: Judge-Made Jurisdiction Law, 40 Case W. Res. L. Rev. 1035 (1989); Shapiro, supra note 10. For more critical views, see Martin H. Redish, Judge-Made Abstention and the Fashionable Art of “Democracy Bashing,” 40 Case W. Res. L. Rev. 1023 (1989) [hereinafter Redish, Judge-Made Abstention]; Donald L. Doernberg, “You Can Lead a Horse to Water . . .”: The Supreme Court’s Refusal to Allow the Exercise of Original Jurisdiction Conferred by Congress, 40 Case W. Res. L. Rev. 999 (1989); Linda S. Mullenix, A Branch Too Far: Pruning the Abstention Doctrine, 75 Geo. L.J. 99 (1986); Redish, Separation of Powers, supra note 10. ↑
  21. Though a few such analyses have been undertaken, the vast majority considered the reaction of the lower courts in the immediate aftermath of the Court handing down Colorado River and hence are seriously outdated. See, e.g., Mullenix, supra note 19, at 128–49. For an example of a rare, recent attempt, see Caballero, supra note 2, at 277–79 (surveying cases in the Fifth Circuit and concluding that “[a] decision [by a district court] to abstain under Colorado River practically guarantees reversal” (footnote omitted)). ↑
  22. See infra notes 60–68 and accompanying text. ↑
  23. A few notes on methodology and scope will be helpful before proceeding. First, to find these cases, I searched both Bloomberg Law and Westlaw for the terms “Colorado River” and “abstention.” To ensure no cases were missed, I cross checked those results against the American Law Reports’ database of Colorado River abstention decisions, 193 A.L.R. Fed. 291. Second, the temporal scope of the court of appeals research was limited to cases decided between January 1, 1993, and January 1, 2018. Likewise, the district court research was limited to cases that met the following three criteria: (1) the case was filed in or transferred to either the Southern District of New York or the Northern District of Illinois on or after January 1, 2008; (2) the district court decided a question of Colorado River abstention prior to January 1, 2018; and (3) the case was not transferred to another district court. Third, the cases included in my analyses were limited to those in which the district court actually decided a question of Colorado River abstention. Cases in which Colorado River was provided as an alternative holding or was denied in dictum (e.g., after the court had already dismissed the case for failure to state a claim) were included and noted as such. On the other hand, cases in which the parties raised a question of Colorado River abstention but the court did not specifically address it were excluded. Likewise, cases which were ultimately decided under the more flexible doctrine of Brillhart/Wilton abstention—which governs a federal court’s discretion to decline jurisdiction over a declaratory judgment action in favor of a pending state proceeding—were excluded. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942); Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995). Finally, except where specifically noted, cases resolved under the doctrine of so-called “international comity” abstention, in which a federal court abstains in favor of concurrent litigation in the courts of a foreign nation, were also excluded. See, e.g., Freund v. Republic of France, 592 F. Supp. 2d 540, 565–66 (S.D.N.Y. 2008). ↑
  24. In 2017, the Northern District of Illinois had the third largest civil docket among the federal district courts, while the Southern District of New York ranked fifth. See U.S. Courts, Statistical Tables for the Federal Judiciary, at tbl.C-1, U.S. District Courts—Civil Cases Filed, Terminated, and Pending During the 12-Month Period Ending June 30, 2017, https://­www.uscourts.gov/­sites/default/files/data_tables/stfj_c1_630.2017.pdf [https://perma.cc/RY­46-XXDT]. ↑
  25. This was determined by searching both the published opinions and dockets of the federal district courts for four sets of terms related to Colorado River abstention and concurrent litigation. Each court was then ranked according to the combined number of results between opinions and docket for each search term. The Southern District of New York ranked first in every search, while the Northern District of Illinois ranked second, third, or fourth in each. ↑
  26. See infra note 119 and accompanying text. ↑
  27. 550 U.S. 544 (2007). ↑
  28. Id. at 556–57. ↑
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