Issue 1

Conflict Avoidance in Constitutional Law

­­­­Hard cases present a dilemma at the heart of constitutional law. Courts have a duty to decide them—to vindicate rights, to clarify law—but doing so leads to errors (judges do not know the “right answer”) and strains the credibility of courts as impartial decision makers. Theories of constitutional adjudication tend to embrace one horn of this dilemma. We explore a principle for deciding hard cases that appreciates both. We argue that courts should decide hard cases against the party who could have more easily avoided the conflict in the first place. This is the conflict-avoidance principle. The principle builds on and systematizes “least cost avoidance” in private law and myriad constitutional doctrines. We apply the principle to several cases, generating insights into discrimination, affirmative action, religion, and so on. The principle represents a form of common-law constitutionalism, and it reveals connections between rights, markets, and State power. It also invites objections, to which we respond. Conflict avoidance is not “value-neutral,” and it cannot resolve every hard case. But it can resolve many in a practical way.

Take any demand, however slight, which any creature, however weak, may make. Ought it not, for its own sole sake, to be satisfied? If not, prove why not? The only possible kind of proof you could adduce would be the exhibition of another creature who should make a demand that ran the other way.

William James (1891)1 1.William James, The Moral Philosopher and the Moral Life, 1 Int’l J. Ethics 330, 339 (1891).Show More

Introduction

How should courts resolve hard constitutional cases?2 2.See Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1060 (1975) (defining hard cases as ones where “no settled rule dictates a decision either way”).Show More On the one hand, deciding them on the merits strains courts’ credibility as impartial decision makers, especially when they engage in judicial review of legislation where the constitutional text is vague and the interests at stake essentially political.3 3.See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 971–73, 977–78 (1987) (criticizing interest balancing). For a thorough and optimistic account of the capacity of courts to balance interests optimally, see generally Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans., Oxford Univ. Press 2002) (1986) (offering an account of constitutional rights that connects the analytical, empirical, and normative dimensions of legal doctrine); Robert Alexy, Constitutional Rights, Balancing, and Rationality, 16 Ratio Juris. 131 (2003) (arguing that there is a rational structure within balancing). Roughly speaking, interest balancing focuses on which party (or possibly which group) can bear a loss in court more easily. Are the losses to this side (or to this principle) outweighed by the gains to the other? Our enterprise is quite different. We focus on which party could have avoided more easily the conflict that led to the hard case in the first place.Show More On the other hand, courts are constitutionally charged with deciding such cases. A refusal to decide them amounts to shirking that responsibility.4 4.U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution . . . .”); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 70 (1962) (explaining that not deciding cases must “be justified as compatible with the Court’s role as defender of the faith”).Show More Theories of constitutional adjudication often embrace one horn of this dilemma.5 5.Theories of judicial deference embrace the first horn by treating most constitutional issues as political ones appropriately decided by the political branches. See, e.g., James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 129–39 (1893) (explaining origins of judicial review); see also Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 7–8 (2004) (comparing early judicial review to contemporary practice). Originalist theories, “moral” interpretations, and “living constitutionalism” tend to treat constitutional questions as essentially legal questions with which the Court is properly tasked with deciding, thereby embracing the second horn. See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 45–46 (1997) (discussing issues with living constitutionalist interpretations); James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, 92 B.U. L. Rev. 1171, 1172–73 (2012) (offering a “complete, ecumenical approach to constitutional interpretation”); David A. Strauss, The Living Constitution 41–44 (2010) (arguing that judges and lawyers are not properly equipped for originalist interpretation). Process theory and prudential approaches attempt to reconcile the two. See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 4–5 (1980) (arguing that judicial review is best justified when it can be understood as a mechanism for improving the democratic process); Bickel, supra note 4, at 64 (“No good society can be unprincipled; and no viable society can be principle-ridden.”). Our approach draws on elements of both the process and prudential traditions.Show More This Article explores a principle that appreciates the force of both horns: courts should decide hard cases against the party who could have more easily avoided the constitutional conflict in the first place. We call this the conflict-avoidance principle.

To preview the principle, consider an example. Suppose a student wears a Confederate flag shirt to school, in violation of the dress code, and gets disciplined. She argues that this violates her free speech rights, and the school responds that it has the authority to ensure a conducive learning environment.6 6.Cf. Castorina ex rel. Rewt v. Madison Cnty. Sch. Bd., 246 F.3d 536, 538, 548 (6th Cir. 2001) (noting that a “disruption-free educational environment is a substantial government interest”); Defoe v. Spiva, 625 F.3d 324, 335 (6th Cir. 2010) (holding that the school officials’ concern that displays of the Confederate flag would be disruptive was reasonable).Show More For the sake of argument, assume the case is hard (we will say more about “hard cases” below). A court applying conflict avoidance would compare the relative costs to the parties of avoiding the conflict in the first place. Could the student have expressed herself in another way? Could she have transferred to a school with a more permissive dress code? Could the school have ensured a conducive environment without banning the flag? Whoever could have avoided the conflict more easily would lose.

This is a simple example, but the principle applies the same way in real, controversial cases like Masterpiece Cakeshop, Our Lady of Guadalupe School, Fisher, and Janus.7 7.Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719 (2018) (on discrimination and religion); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (same); Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198 (2016) (on affirmative action); Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) (on speech).Show More We will examine these cases and others below.

Applying the conflict-avoidance principle has several advantages. For one thing, it requires courts to decide cases instead of deflecting or delaying judgment.8 8.Cf. Bickel, supra note 4, at 71 (approving Justice Brandeis’s statement that “[t]he most important thing we do . . . is not doing” and observing that Brandeis “had in mind all the techniques . . . for staying the Court’s hand”).Show More Second, and more important, applying the conflict-avoidance principle requires courts to decide cases by looking to relatively concrete facts and considerations, rather than to abstract political values. Such an approach not only plays to courts’ institutional strengths; it may also produce a pattern of decisions that vindicate the relevant values where they are needed most. That, at least, is the theory of the common law.9 9.Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 883 (2006) (“Treating the resolution of concrete disputes as the preferred context in which to make law . . . is the hallmark of the common law approach.”).Show More As Oliver Wendell Holmes famously said, “[i]t is the merit of the common law that it decides the case first and determines the principle afterwards.”10 10.Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, 1 (1870) (unsigned article by Oliver Wendell Holmes).Show More

Finally, the conflict-avoidance principle encourages parties to avoid the sorts of conflicts that produce hard cases. Deciding such cases imposes real costs. In addition to financial costs, such cases can undercut the legitimacy of courts as judicial institutions, especially when the political stakes are high.11 11.Precisely that concern underlies the Supreme Court’s practice of treating some politically charged issues as “political questions,” incapable of impartial judicial resolution. See Baker v. Carr, 369 U.S. 186, 217 (1962) (stating that cases lacking “judicially discoverable and manageable standards” or requiring a “policy determination of a kind clearly for nonjudicial discretion” involve political questions).Show More Furthermore, deciding hard cases can lead to errors in the sense that judges do not know the “correct” answer (if they did, the case would not be hard). We think reducing the incidence of hard cases is itself a benefit.12 12.We relax the assumption that deciding hard cases imposes more costs than benefits. See infra Part V.Show More

The conflict-avoidance principle has roots in private and public law. It relates to least cost avoidance, which Guido Calabresi identified and developed in tort law.13 13.Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis 135 (1970) (advocating placing liability on “those acts or activities . . . which could avoid the accident costs most cheaply”).Show More It also resonates with various constitutional doctrines—such as time, place, and manner doctrines in First Amendment law—that inquire into the alternative courses of action available to the parties to a dispute.14 14.See infra Part IV.Show More Also, some scholars have advanced proposals that sound in cost avoidance.15 15.The clearest example would appear to come from Professor Tang, who has two papers in draft form. See Aaron Tang, The Costs of Supreme Court Decisions: Towards a Best Cost-Avoider Theory of Constitutional Law (Sept. 27, 2019) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3457533 [https://perma.cc/3UAQ-WF­WW] [hereinafter Tang, Cost-Avoider]; Aaron Tang, Constitutional Law After Mazars, Vance, & June Medical: The Case for Harm-Avoider Constitutionalism, 109 Calif. L. Rev. (forthcoming 2021) (on file with authors) [hereinafter Tang, Harm-Avoider]. Professor Tang’s work and ours, which developed simultaneously and independently, are quite different. In brief, we aim to minimize conflicts by placing the onus on the party who could have avoided the dispute at lowest cost, whereas Professor Tang aims to minimize the “costs” of judicial decisions by placing the onus on the group that could bear the loss most easily. See infra note 46. Professor Tang’s work relates more closely to interest balancing, covering, or mitigation (i.e., bearing loss after the fact) than to a conventional understanding of avoidance (preventing the loss from occurring).For other scholarship that sounds in conflict avoidance, see, for example, Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167, 193 (arguing that free exercise claims by service providers should not prevail over non-discrimination claims by LGBT customers in communities where “discrimination is still widespread”); J.H. Verkerke, Is the ADA Efficient?, 50 UCLA L. Rev. 903, 941 (2003) (applying least cost avoidance to disability law in the workplace); Robert D. Cooter, The Strategic Constitution 129–32 (2000) (connecting rights to mobility costs); Frank I. Michelman, Pollution as a Tort: A Non-Accidental Perspective on Calabresi’s Costs, 80 Yale L.J. 647, 666–86 (1971) (book review) (applying least cost avoidance to pollution).We note that conflict avoidance can be seen as a distinct kind of “minimalist” theory of adjudication. See, e.g., Cass Sunstein, Burkean Minimalism, 105 Mich. L. Rev. 353, 355–56 (2006). Minimalist theories direct judges to concentrate on the facts of the case. See id. at 376 (describing as non-minimalist an approach that is “not limited to the facts of particular cases”). Conflict avoidance directs judges to focus on a particular subset of facts, namely on who could have avoided the conflict more easily.Finally, we note that our argument is consistent with a broader, emerging approach to constitutional law. See generally Robert D. Cooter & Michael D. Gilbert, Constitutional Law and Economics, in Research Methods in Constitutional Law: A Handbook (Malcolm Langford & David S. Law eds., forthcoming 2021) (discussing the emergence of economic theory as applied to constitutional law).Show More Thus, we do not offer a radically new approach to constitutional adjudication. Rather, we collect strands of reasoning that already permeate law and legal scholarship and show how, once systematized, they yield a promising and innovative approach to hard cases.

Why hasn’t anyone systematized these ideas before? Why haven’t judges and scholars, many of whom are familiar with least cost avoidance, already applied these ideas to constitutional law? Here is one explanation. Constitutional adjudication often proceeds “top-down.”16 16.Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. Chi. L. Rev. 433, 433 (1992) (defining top-down reasoning as when “the judge or other legal analyst invents or adopts a theory about an area of law—perhaps about all law—and uses it to organize, criticize, accept or reject, explain or explain away, distinguish or amplify the existing decisions to make them conform to the theory and generate an outcome in each new case as it arises that will be consistent with the theory”).Show More The constitutional principles at stake loom large, sweeping away particular case facts. In contrast, least cost avoidance proceeds in a “bottom-up,” context-sensitive fashion.17 17.For an analysis of the formal difference between bottom-up and top-down reasoning, see Charles L. Barzun, Justice Souter’s Common Law, 104 Va. L. Rev. 655, 708–13 (2018) (explaining that, whereas under top-down reasoning, courts apply a fixed major premise (or rule) to the minor premise (or facts) in order to deduce a conclusion, with bottom-up forms of reasoning, the judge aims to let the facts of the case themselves be the guide to the proper outcome).Show More Courts concentrate on the facts (who could have avoided the crash more easily?), rather than on how to best apply the relevant legal principles. Applying least cost avoidance to the Constitution requires taking a bottom-up approach to a subject dominated by top-down reasoning.18 18.Of course, our approach is top-down in the sense that it involves applying the conflict-avoidance principle to many different cases. But the point is that it is a meta-principle that directs courts to focus on the sort of factual nuances that bottom-up approaches consider critical.Show More

Gesturing at least cost avoidance and “bottom-up” reasoning is easy. The hard part is translating it to constitutional law. We take the main contribution of our project to lie in showing what the translation requires.

The conflict-avoidance principle is not a panacea; nor does it claim “value-neutrality.” But it does offer a fresh way of thinking about how to resolve hard cases. Rather than seeing constitutional conflicts as brute clashes of values—liberty vs. equality, positive liberty vs. negative liberty, substantive equality vs. formal equality—courts might make more progress by looking at the concrete difference that vindicating those values would have made in parties’ actual lives. The goal is to see what work rights claims are doing in social and political life.

We develop our argument in five Parts. Part I clarifies the scope of the principle: we confine its use to hard cases, where “hard cases” has a specific meaning that we will explain. Part II briefly reviews least cost avoidance in private law, drawing out a key distinction between avoiding costs and bearing them. Part III operationalizes the conflict-avoidance principle by developing a doctrinal test for its application. Part IV applies the test to real cases, including recent, controversial cases before the Supreme Court. In Part V, we respond to various objections. The Conclusion develops a broader point. Although the conflict-avoidance principle requires no special commitment to private ordering or negative liberty, it does illuminate a connection between markets, rights, and State power.

The Constitution’s First Declared War: The Northwestern Confederacy War of 1790–95

What counts as the first presidential war—the practice of Presidents waging war without prior congressional sanction? In the wake of President Donald Trump’s attacks on Syria, the Office of Legal Counsel opined that unilateral presidential war-making dates back 230 years, to George Washington. The Office claimed that the first President waged war against Native American tribes in the Northwest Territory without first securing congressional authorization. If true, executive war-making has a pedigree as old as the Constitution itself. Grounded in a systematic review of congressional laws, executive correspondence, and rich context of the era, this Article evaluates the claim that our first President waged war in reliance upon his constitutional authority. In fact, there is little that supports the bold claim. Congress authorized war against Northwestern tribes raiding frontier settlements. In other words, Congress exercised its power to declare war and did, in fact, declare war, albeit without using that phrase. Moreover, Washington and his cabinet repeatedly disclaimed any constitutional power to wage war without congressional sanction, making it exceedingly unlikely that he waged war of his own accord or in sole reliance on his constitutional powers. Washington’s abjurations of power should make executive-branch lawyers blush, for the Commander in Chief and his celebrated advisors, including Alexander Hamilton, Thomas Jefferson, and Henry Knox, consistently observed that Presidents could not take the nation to war and, therefore, could not sanction offensive measures, including attacks. The Constitution’s First War was a congressional war through and through, just as the Constitution requires. It was not a presidential war and cannot be cited as a long-lost precedent for presidential wars in Korea, Libya, or Iran.

Introduction

In January of 2020, the United States killed Qasem Soleimani.1 1.Merrit Kennedy & Jackie Northam, Was It Legal for the U.S. To Kill a Top Iranian Military Leader?, NPR (Jan. 4, 2020), https://www.npr.org/2020/01/04/793412105/was-it-legal-for-the-u-s-to-kill-a-top-iranian-military-leader [https://perma.cc/K5E6-8BZE]; Oona A. Hathaway, The Soleimani Strike Defied the U.S. Constitution, Atlantic (Jan. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/01/soleimani-strike-law/604417/ [https://pe­rma.cc/2268-2TQX].Show More Soleimani was Iran’s second-most powerful leader and responsible for killing many American military personnel. The drone strike touched off praise and censure, including doubts about its constitutionality.2 2.Rand Paul (@RandPaul), Twitter (Jan. 3, 2020, 9:02 AM), https://twitter.com/­RandPaul/status/1213098238573723649 [https://perma.cc/8FXY-PK5P].Show More Could the President kill a foreign leader with no congressional authorization? Senator Rand Paul insisted that “[i]f we are to go to war [with] Iran the Constitution dictates that we declare war.”3 3.Risch Says Soleimani Was ‘Ratcheting Up’ Attacks on the U.S., PBS NewsHour (Jan. 3, 2020), https://www.pbs.org/newshour/show/risch-says-soleimani-was-ratcheting-up-attacks-on-the-u-s [https://perma.cc/XGD4-TDG3] (statement of Sen. James Risch). Although the Senator also cited the War Powers Act, the Act conveys no authority to order attacks. Id.; War Powers Resolution of 1973, Pub. L. No. 93-148, § 2, 87 Stat. 555.Show More Senator James Risch disagreed, arguing that “the president . . . has [war] powers under Article 2 of the Constitution.”4 4.Paul Kane & Mike DeBonis, Trump’s Order To Strike Iranian Commander Sparks Fresh Debate in Congress over War Powers, Wash. Post(Jan. 3, 2020), https://www.washington post.com/politics/trumps-order-to-strike-iranian-leader-sparks-fresh-debate-in-congress-over-war-powers/2020/01/03/c8921b82-2e47-11ea-9b60-817cc18cf173_story.html [https://perma.cc/7FH7-TX54].Show More He further noted that “[t]his debate [over war powers] started under George Washington.”5 5.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, 42 Op. O.L.C. 1, 1 (May 31, 2018), https://www.justice.gov/sites/default/files/opinions/attachments/2018/05/­31/2018-05-31-syrian-airstrikes_1.pdf [https://perma.cc/8S83-CJZJ].Show More

The audacious attack was hardly unprecedented. In 2018, the United States launched a missile strike against Syrian chemical weapons facilities.6 6.Michael R. Gordon, Helene Cooper & Michael D. Shear, Dozens of U.S. Missiles Hit Air Base in Syria, N.Y. Times (Apr. 6, 2017), https://www.nytimes.com/2017/04/06/world/­middleeast/us-said-to-weigh-military-responses-to-syrian-chemical-attack.html [https://perma.cc/VUJ7-QTJ6].Show More And the year before, the military attacked a Syrian air base with targeted airstrikes.7 7.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 1.Show More Again, no federal law sanctioned any of these earlier strikes. Rather, President Donald J. Trump relied upon his constitutional powers.

In the wake of the 2018 Syrian strikes, the Department of Justice’s Office of Legal Counsel (“OLC”) opined that President Trump had constitutional authority to attack other nations.8 8.Id.at 7 (quoting Presidential Authority To Permit Incursion into Communist Sanctuaries in the Cambodia-Vietnam Border Area, 1 Op. O.L.C. Supp. 313, 331 (1970)).Show More The OLC stressed that “[the President] as Commander in Chief, is authorized to commit . . . hostilities, without prior congressional approval.”9 9.Id.at 3.Show More Although the OLC opinion briefly gestured towards constitutional provisions, it actually relied almost entirely on practice. The claim was that President Trump could order the strikes because his predecessors on “dozens of occasions over the course of 230 years” had done the same.10 10.The administration provided a rather brief legal justification for the Soleimani strike, arguing that under Article II, Presidents could use force to, among other things, “protect important national interests.” White House, Notice on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (2020), https://foreignaffairs.house.gov/_cache/files/4/3/4362ca46-3a7d-43e8-a3ec-be02457­05722/6E1A0F30F9204E380A7AD0C84EC572EC.doc148.pdf [https://perma.cc/7CA7-NKAQ]. In a call with reporters, National Security Advisor Robert O’Brien cited both the President’s constitutional authority and the 2002 Iraqi Authorization for Use of Military Force (“AUMF”). Maggie Haberman & Catie Edmondson, White House Notifies Congress of Suleimani Strike Under War Powers Act, N.Y. Times (Jan. 4, 2020), https://www.nytimes.com/2020/­01/04/us/politics/white-house-war-powers-resolution.html [https://perma.cc/HK7E-9ELW].Show More In short, longstanding practices, not specific statutory authorization, set the metes and bounds of presidential war powers.11 11.This Article uses the terms “Native American” and “Indian” interchangeably. This is to acknowledge and respect the preferences that different indigenous people have. See Samantha Vincenty, Should You Use Native American or American Indian? That Depends on Who You Ask, Oprah Mag. (Oct. 30, 2020), https://www.oprahmag.com/life/a34485478/native-american-vs-american-indian-meaning/ [https://perma.cc/7GR4-4DXU]; Native Knowledge 360°: Frequently Asked Questions, Nat’l Museum of the Am. Indian, https://american­indian.si.edu/nk360/faq/did-you-know#:~:text=In%20the%20United%20States%2C%20Na­tive,preferred%20by%20many%20Native%20people [https://perma.cc/AU2N-SKRJ] (last visited Feb. 10, 2021).Show More

This confident claim, that Presidents have waged war on their own authority since the Constitution’s earliest days, rests on an unjustly obscure conflict: the Northwestern Confederacy War (or First War) conducted against several Native American12 12.The war goes by many names, including the “Northwest Indian War,” the “Little Turtle War,” and “President Washington’s Indian War.” In this Article, we will use either “Northwestern Confederacy War” or “First War.” We delve more deeply into the events infra Part II.Show More tribes north of the Ohio River.13 13.April 2018 Airstrikes Against Syrian Chemical-Weapon Facilities, supra note 6, at 6.Show More According to the OLC, “Presidents have exercised their authority to [wage war] without congressional authorization since the earliest days of the Republic.”14 14.Id.Show More Specifically, “President Washington [ordered] offensive operations against the Wabash Indians in 1790.”15 15.A number of scholars have helped establish the dominant view that the original Constitution left the decision to go to war to Congress, to be exercised by bicameralism and presentment. Here is a partial list: Michael D. Ramsey, The Constitution’s Text in Foreign Affairs, ch. 11 (2007); Louis Fisher, Presidential War Power 6–7 (2d ed. 2004); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 3–4 (1993); Michael J. Glennon, Constitutional Diplomacy 80–84 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law 17–18 (2d ed. 1989); Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45, 48 (2007); William Michael Treanor, Fame, the Founding, and the Power To Declare War, 82 Cornell L. Rev. 695, 699 (1997); Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29, 36 (1972); Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672, 679 (1972).Show More And because Presidents since George Washington have authorized military attacks without legislative sanction, modern Presidents likewise enjoy the power to wage war without congressional approval.

If our first President waged war without congressional authorization, that fact undermines a common constitutional assertion—that Presidents cannot take the nation to war.16 16.Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring).Show More Although many modern scholars and legislators insist that Presidents cannot wage war without congressional authorization, Washington apparently committed the very act that they regard as constitutionally verboten. Further, one might suppose that what was true for Washington must be no less true for Harry Truman, Barack Obama, and Donald Trump. Hence, as a matter of constitutional law, Presidents can wage war as they please against North Korea, Libya, Syria, or, for that matter, Canada.

The OLC’s argument could be understood in two different ways. First, the OLC could be asserting that because Presidents have enjoyed the power to wage war from the Constitution’s inception, this practice sheds light on the original meaning of “executive power,” “Commander in Chief,” and “declare war.” Second, the OLC could be advancing a different claim, namely that despite the original meaning of these phrases, practice from the government’s earliest days has layered a “gloss” on them,17 17.John C. Yoo & Robert J. Delahunty, Authority for Use of Military Force To Combat Terrorist Activities Within the United States 10 n.15 (Oct. 23, 2001), https://nsarch­ive2.gwu.edu/torturingdemocracy/documents/20011023.pdf [https://perma.cc/­4QEN-AF­WP]; Authorization for Continuing Hostilities in Kosovo, 24 Op. O.L.C. 327, 333 (2000).Show More meaning that whatever the original scheme, Presidents today enjoy the power to wage war. We believe the 2018 OLC opinion makes the first sort of claim. After all, dutiful and upright Washington would never deliberately violate the Constitution. If he took the nation to war, it would seem that, notwithstanding Congress’s power to declare war, the original Constitution truly sanctioned presidential wars. And it follows that the conventional view about war powers is misguided because Washington’s war refutes it.

The OLC’s recent invocation of the Northwestern Confederacy War is not exceptional. Other OLC opinions have cited the war, although none have given it the prominence and weight that the 2018 opinion does.18 18.Abraham D. Sofaer, The Power Over War, 50 U. Miami L. Rev. 33, 38–41 (1995); John Yoo, George Washington and the Executive Power, 5 U. St. Thomas J.L. & Pub. Pol’y 1, 19–20 (2010).Show More These opinions relied upon the work of scholars, most notably Abraham Sofaer and John Yoo, who drew constitutional lessons from the war.19 19.See Yoo & Delahunty, supra note 18, at 10 n.15; Authorization for Continuing Hostilities in Kosovo,supra note 18, at 333.Show More

Because the OLC has repeatedly cited the First War to justify the executive’s unilateral use of military force abroad,20 20.Federal Legislature, Phila. Gen. Advertiser, Jan. 4, 1793, at 3 (comments of Rep. Wadsworth).Show More it is necessary to carefully assess it. There is a considerable risk that an incomplete or mistaken understanding of the war may become embedded in the historical narrative and mislead politicians and scholars. The First War may become the sturdy keystone for a view that Presidents can take the nation to war because that is what Washington supposedly did only a year after the Constitution’s inception.

The OLC’s opinions, and the underlying scholarship, while rigorous in many respects, rely on incomplete evidence and fail to properly situate the conflict in its historical context. The historical record demonstrates that Congress in fact authorized Washington to start the Northwestern Confederacy War and repeatedly approved the war’s continuation. Far from inaugurating the practice of presidential wars, the First War marked the earliest exercise of Congress’s power to “declare war.”

Consequently, Washington laid no novel gloss on the “executive power” or the “Commander in Chief” Clauses. Claims to the contrary tether the first President to a flawed and anachronistic proposition he never once entertained—that Presidents enjoy constitutional authority to start wars. As we demonstrate, George Washington in fact publicly proclaimed exactly the opposite. He forcefully insisted that Commanders in Chief could not wage war unilaterally. He endorsed this principle categorically, applying it even in the wake of declarations of war issued by other nations. On this point, his cabinet fully agreed. The claim that Presidents could lawfully take the nation to war was so outside the mainstream that neither Washington nor anyone else voiced it, even to reject it. At the time, no one read the Constitution as the executive branch (mis)reads it today. The debate we have today simply did not exist during the Washington administration because no one at the time claimed that the Constitution authorized Presidents to start wars.

Resting on the first in-depth evaluation of primary materials, this Article corrects the record and sheds new light on the original War Constitution. In our telling, America’s First War teaches a number of vital lessons. First, Congress’s power to declare war encompassed authority to sanction military expeditions, including the power to authorize offensive measures. Second, despite serving as Commander in Chief and enjoying the “executive power,” the President clearly lacked such power. Third, Congress could exercise its authority to “declare war” without using the precise phrase or a formal declaration. Fourth, via its decisions over the army’s size and the delegation of authority to summon state militias, Congress regulated the President’s conduct of the First War.

The Northwestern Confederacy War witnessed a remarkable number of “firsts.” The war marked the first exercise of Congress’s power to declare war. As one critic said, it was “the war of the legislature.”21 21.By Particular Desire, Phila. Gen. Advertiser, Jan. 7, 1792, at 2.Show More As another detractor put it, the new government found the Indians in the Northwest “in a state of disquietude” and “declare[d] war against them, as a display of power.”22 22.Prakash, supra note 16, at 96, 105.Show More The war also marked the first major interplay between the Commander in Chief and Congress, with the latter guiding the former and the former acting under the auspices of legislative decisions. The Commander in Chief was under the command of Congress.

Part I reviews existing treatments of the Northwestern Confederacy War and recounts the First War. Part II discusses the power to declare war and what the Founders said of that power prior to 1789. Part III recounts the statutes that Congress passed to authorize and support the First War. Part IV discusses what Washington and his cabinet said about presidential power to wage war without congressional authorization. Part V draws concluding lessons from America’s first war.

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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