Federal Rights Research Articles

Custom and Usage as Action under Color of State Law: An Essay on the Forgotten Terms of Section 1983

T HE same might be said the meaning custom and usage Section 1983, except that even the doctrine is difficult to find. Section 1983 creates a cause action for the deprivation federal rights under color any statute, ordinance, regulation, custom, or usage, any State.2 This last clause is usually thought to limit the statute only to state action, but if custom and usage are given their ordinary meaning, the statute reaches a wide range private conduct. Interpreted in this way, these terms would transform the under color of clause from a limitation on the statute to a dramatic expansion its scope. Such an interpretation would allow claims to be brought against private individuals or institutions that acted systematically to deny federal rights. Yet the

Constitutional Restraints on State Right of Publicity Laws

Over the past fifty years, a new intellectual property right called the right of publicity has evolved under state common law. The author explores a recurring concern hinted at by several lower courts and dissenting opinions: that current publicity laws offend parts of the Constitution beyond the First Amendment and the Copyright Clause. The existing hodgepodge of state statutory and common law that makes up the right of publicity appears to be a minefield of constitutional hazards. Courts must consider a variety of First Amendment, Copyright Clause, Commerce Clause, Due Process Clause, and Full Faith and Credit Clause issues when resolving publicity rights cases. The author argues that Congress could simplify this area of the law considerably for plaintiffs, defendants, and courts by creating a limited preemptive federal right of publicity. Alternatively, the right could remain state-based and still avoid these issues through other approaches.

The tenuous nature of the Medicaid entitlement.

Although Medicaid is regarded as a federal entitlement program, nowhere does the Medicaid statute explicitly recognize a federal right of action to enforce recipients' rights. Arguably, the Supreme Court, rather than Congress, first recognized the right of Medicaid recipients to protection of federal law. A controversial 2001 federal court decision, however, called into question the continuing existence of federally enforceable Medicaid rights. Although this decision has been reversed, it illuminates the tenuous nature of the Medicaid entitlement, as do recent Supreme Court decisions narrowing federal rights. Congress should amend the Medicaid statute to ensure the rights of Medicaid recipients.

Custom and Usage as Action Under Color of State Law: An Essay on the Forgotten Terms of Section 1983

Section 1983 is the general federal civil rights statute which creates a cause of action for any deprivation of federal rights color of any statute, ordinance, regulation, custom, or of any state. The terms and usage in this context have a meaning that, if it was once known, has been forgotten, and to the extent that it resembles the ordinary meaning of these terms contrasts sharply with the other sources of state law listed in the statute. If these terms are given their ordinary meaning, then a wide range of private action would suddenly come within the coverage of the statute, allowing claims to be brought against private individuals and institutions for actions taken systematically to deny federal rights. This article tries to determine why the statute has not received this interpretation, and indeed, why the terms and usage have received virtually no interpretation at all in current decisions under section 1983. The meaning of these terms is analyzed in four different periods: in the era before section 1983 was enacted as part of the Civil Rights Act of 1871; in the debates over this act and over similar provisions in other civil rights acts passed during Reconstruction; in judicial decisions in the late nineteenth century invalidating or narrowly interpreting these acts; and in judicial decisions in the twentieth century that otherwise expanded the scope of the section 1983. In each of these periods, developments in legal doctrine are set against the background of jurisprudential views of the appropriate role of custom as a source of law. The article concludes by examining the implications of this historical inquiry for the current scope of civil rights laws, and particularly for the power of Congress under section 5 of the Fourteenth Amendment.

The politics of water scarcity in the western states

Water is a scarce and highly prized commodity in the arid Western states. Not surprisingly, water policy creation is very much a challenge for a number of reasons. Citizens hold multiple water values such as economic development and the protection of wildlife which are often contradictory. State prior appropriation laws are not easily reconciled with federal reserve rights and the public trust doctrine. There are multiple governmental and nongovernmental actors who work to influence and implement policy in a decentralized political system. If actors lose a policy battle in one decisionmaking arena (such as a legislature), they often try to influence policy at another venue (a court, Congress or an agency). Policymaking involves water issues that are dynamic over time. Furthermore, there are several types of water policy (distributive, allocative, redistributive and cooperative) that vary according to who pays costs and receives benefits, the level of conflict, the openness of decisionmaking to interested parties, and the level of government which dominates. Long ago, Mark Twain was correct when he said “Whiskey’s for drinking, water’s for fighting about.”

Overcoming Immunity: The Case of Federal Regulation of Intellectual Property

The Supreme Court's decisions in Seminole Tribe v. Florida and Alden v. Maine have recognized a broad state sovereign immunity that Congress lacks power simply to override. In practice, the principal result of these decisions is to disempower Congress, when legislating under Article I of the Constitution, from subjecting an unconsenting state to damages liability in suits brought by private parties. This Article examines the importance of the constitutional foreclosure of that remedy, and the options open to Congress should it wish to compensate for the unavailability of that remedy by providing other means to deter and redress violations by states of federal intellectual property rights. The analysis focuses on the federal intellectual property statutes because the Court has already declared two of these statutes to be unconstitutional incursions upon state sovereign immunity, and because, in response to those decisions, the executive and legislative branches have begun to explore legislative alternatives. Most of this article's analysis is equally applicable, however, to other statutory schemes that Congress has enacted, or might enact, under its Article I powers. Four principal strategies are examined: (1) creation of a narrow cause of action for those violations by states that can also be viewed as deprivations of property without due process; (2) reliance upon suits against responsible state officials for damages to be paid by them personally; (3) authorization of the United States to sue the states for damages, coupled with a mechanism for enlisting private initiative on behalf of the United States; and (4) conditioning the conferral to the states of federal benefits upon the states' waiver of immunity from suit. In general, each of these four approaches raises an intersecting set of practical and legal difficulties; none provides a surefire and easy alternative to the remedy precluded by the Court's decisions. In that respect, the analysis suggests that the Court's state sovereign immunity doctrine, although viewed by some as being of secondary importance (because it does not preclude federal regulation of the states altogether but merely restricts the available remedies), is in fact a matter of considerable constitutional and practical importance.

Did the Oklahoma City Bombers Succeed?

The worst case of domestic terrorism in our country's history, the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, led to the enactment of a landmark antiterrorism statute. Not surprisingly, several of the statute's provisions strengthen federal power in extraordinary and unprecedented ways to counter the threat of terrorism. But other provisions radically restrict the ability of federal courts to enforce the federal constitutional rights of state prisoners. How could Congress miss the apparent irony of responding to the destruction of a federal courthouse with its own assault on federal judicial power? This article argues that the role of federal habeas corpus has changed substantially over the past three decades. Whereas federal habeas had emerged during the Warren Court as a general forum for supervising state court compliance with constitutional norms, it has now become primarily a forum for death penalty litigation. Congress appears to have recognized this transformation, and the antiterrorism statute confirms that Congress views federal habeas through the lens of the death penalty rather than the lens of federalism. This article explores the costs of the "capitalization" of habeas and the subtle relationship between federalism, federal habeas, and the death penalty.

Judging Judging: The Problem of Secondguessing State Judges' Interpretation of State Law in Bush v. Gore

Three United States Supreme Court Justices in Bush v. Gore would have held that the Florida Supreme Court's decision ordering a recount violated Article II Section 1's requirement that each state shall appoint, in such Manner as the Legislature thereof may direct electors for President and Vice-President. They reasoned that the Florida state court's of the Florida election laws impermissibly distorted them beyond what a fair reading required and thereby violated Article II, Section 1. Judicial interpretation can make law and rob individuals or other parties of desired predictability and stability Despite the seeming affront to federalism, the paper argues that the three Justices were on firm ground in holding that the U.S. Supreme Court can review a state court's construction of state law in order to protect a federal right, just as the Court has done in the Contracts Clause and criminal fair notice cases (Bouie). Indeed, in those two contexts, the Court has asked whether state judicial pronouncements changed prior law. Moreover, there is sound reason to conclude that the Article II, Section 1 claim should be justiciable. Irrespective of the historical pedigree, however, the concurrence's application of the doctrinal principles is nothing short of startling. When the Court has reviewed state law decisionmaking in the Bouie and Contracts Clause contexts, it has only disputed state court construction of state law on rare occasions, and it has concluded that state court decisions made new law even more rarely. Through a mixture of fictions and judicial legerdemain, federal judges in the Bouie and Contracts Clause contexts have assiduously avoided concluding that state court decisions changed prior law. They have relied on a variety of fictions to conclude that the decisions under review were foreshadowed in some way, whether because of prior dicta or developments in other jurisdictions. Courts backed off enforcing doctrine in those two contexts for a number of reasons. First, drawing a line between interpretation and making law is notoriously slippery. Few benchmarks exist to determine when interpretation stops and lawmaking starts. Although the Florida Supreme Court decision was in no way dictated by precedent, it found support in the language of the text and seemed, at a minimum, plausible. The U.S. Supreme Corut has consistently failed to disturb far more questionable state court deicisions in the Bouie and Contracts Clause contexts. Second, federal courts retreated from full enforcement of federal guarantees in light of the respect owed state judiciaries. As they began to view state jurists with greater respect, there was less justification for scrutinizing state court decisionmaking so carefully. The concurrence's opinion, in contrast, flies in the face of the Court's frequent paens to the fundamental role of federalism in our system. Third, equating judicial interpreation with lawmaking provides incentive for disapppointed litigants to seek redress in federal court for their disagreement with state court interpretation of state law. The need for finality seems even greater in the election contest. And, finally, the more that we equate judicial interpretation with lawmaking, the greater restraints that society may impose on judges. After all, the Supreme Court's equal protection analysis in Bush v. Gore appeared to many as nothing less than judicial lawmaking. The lessons of history should have alerted the concurrence to the quagmire of active enforcement of the Article II, Section 1 directive - some constitutional rights are better left underenforced.

Pegram and Preemption: Patients' Rights and the Case for Doing Nothing

In this article, Professor Zelinsky discusses the recent decision of the U.S. Supreme Court in Pegram v. Herdrich. Most advocates of broader patients' rights view Pegram as a signal that Congress should pass legislation amending ERISA to establish patients' rights against health maintenance organizations. Professor Zelinsky, however, concludes otherwise and contends that Pegram counsels advocates of patients' rights that, in terms of federal legislation, they should do nothing. The principal argument for federal patients' rights legislation, says Zelinsky, is that the Court has construed ERISA section 514(a) so as to preempt state law causes of action against HMOs and other medical care providers hired pursuant to employers' fringe benefit plans. Pegram suggests that, notwithstanding its prior case law, the Court is unwilling to construe ERISA as nullifying state law malpractice actions. Thus, substantively, the issue posed by the federal legislation Congress is now considering is whether there should be a single nationwide standard for patients' rights or whether there should be a diversity of state remedies.

Respecting state courts: the inevitability of judicial federalism

Preface The Once and Future Federalism Rights and Judicial Federalism Beyond Paradigms: State Court Adjudication of Federal Rights Judicial Federalism, Civil Law, and the New Forum Shopping Federalism, Liberty, and State Constitutional Law Special Problems for Judicial Federalism: Race, the Death Penalty, and Habeas Corpus Judicial Federalism: Power, Ideology, and Community Bibliography Index

Sovereign Immunity, Due Process, and the Alden Trilogy

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states' violation of federal law. The Court thus rejected the interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress acting through Article I. On the same day, however, the Court appeared to resurrect the forum allocation interpretation of the Eleventh Amendment with respect to a subset of federal laws: those that establish rights that constitute or within the meaning of the Fourteenth Amendment's Due Process clause. The Court in Florida Prepaid v. College Savings Bank affirmed that patents are and that a state violates the Due Process clause when it deprives persons of such without affording them an adequate compensatory remedy. The extent to which the Due Process principle articulated in Florida Prepaid undoes the sovereign immunity principle articulated in Alden depends on the breadth of the concepts of and Although the third case in the Alden trilogy, College Savings Bank v. Florida Prepaid, makes it clear that not all federal rights are for purposes of the Due Process clause, other cases, which the Court did not reject or even discuss, stress that the concepts of liberty and are broad indeed. In particular, the new property cases define in such a way as to include the right to accrued wages invoked by the plaintiffs in Alden. Thus, the Florida Prepaid's Due Process exception to Alden's sovereign immunity principle may be broad enough to have required a different result in Alden itself, had the exception been invoked. Alternatively, the decision in Alden, alongside that in College Savings Bank, may signal a dramatic narrowing of the Court's definition of and liberty. If so, the sovereign immunity tail is beginning to wag a large Due Process dog.

Whose Who? The Case for a Kantian Right of Publicity

Rapidly developing technological opportunities for unauthorized uses of identity -- from virtual kidnaping to digital casting in entertainment products -- coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of heterogeneous state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right of publicity as inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is highly vulnerable to such attacks. To date, no serious attempt has been made to elaborate an alternative philosophical justification that can withstand them. This article uses Kantian philosophy to justify an autonomy-based right of publicity that has both a moral and a property dimension. In doing so, it challenges both the traditional approach to the right and its postmodernist critiques. First, the right of publicity proposed here rejects the existing doctrinal bifurcation of publicity and privacy rights, and explicitly embraces both the economic and moral facets of the individual's need to control the use of identity. Second, re-conceiving the right of publicity as autonomy-based rather than purely pecuniary, the article gives it greater weight in the balance against competing First Amendment considerations. At the same time, in order to contain potential abuses of a more expansive right of publicity, the article considers First Amendment, fair use, and first sale doctrine limitations, and incorporates various elements of those limitations into proposed legislative language establishing a preemptive federal right.

Introduction

Colorblind Injustice largely derives from my workas an expert witness in federal voting rights cases. A vignette from one particularly important case, Garza v.Los Angeles County Board of Supervisors(1990), and a relatively brief summary may give those who have not yet read the book both a feel for its scope and a sense of how the issues it deals with impact real people.At an international historical conference in the mid-1980s, I met a young Russian historian, Sergei Stankevich, who specialized in America and who had read and liked some of my work. In the last few years of the Soviet Union, Sergei’s political career took off, and his fluent English and keen insights into both countries won him the attention of U.S. and Soviet media. In late 1989, when Sergei was brought to Los Angeles for the first showing of an American television documentary that prominently featured him, he called me from a Beverly Hills hotel and invited me for a drinkth e next day. But because I was working on the Garza case and had scheduled an all-day appointment to give a deposition before a lawyer in Century City (which is where people work who can afford to live in Beverly Hills), I regretfully declined, saying, ‘‘I’m sorry, Sergei, but I’m being deposed tomorrow.” There was a long pause on the other end of the line.

Whose Who? The Case for a Kantian Right of Publicity

Rapidly developing technological opportunities for unauthorized uses of identity -- from virtual kidnaping to digital casting in entertainment products -- coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of heterogeneous state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right of publicity as inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is highly vulnerable to such attacks. To date, no serious attempt has been made to elaborate an alternative philosophical justification that can withstand them. This article uses Kantian philosophy to justify an autonomy-based right of publicity that has both a moral and a property dimension. In doing so, it challenges both the traditional approach to the right and its postmodernist critiques. First, the right of publicity proposed here rejects the existing doctrinal bifurcation of publicity and privacy rights, and explicitly embraces both the economic and moral facets of the individual's need to control the use of identity. Second, re-conceiving the right of publicity as autonomy-based rather than purely pecuniary, the article gives it greater weight in the balance against competing First Amendment considerations. At the same time, in order to contain potential abuses of a more expansive right of publicity, the article considers First Amendment, fair use, and first sale doctrine limitations, and incorporates various elements of those limitations into proposed legislative language establishing a preemptive federal right.

Waiving States' Sovereign Immunity from Suit in Their Own Courts: Purchased Waiver and the Clear Statement Rule

In recent years, the Supreme Court has expanded the Eleventh Amendment concept of state sovereign immunity to limit the extent to which individual litigants may assert federal rights against states in federal court. In its 1998 term, the Supreme Court extended the sovereign immunity doctrine to shield states from federal claims asserted by individuals in state courts as well. While the Court has carved out exceptions to the sovereign immunity doctrine, it has consistently held that if Congress wishes to make states liable in federal court through one of those exceptions, it must do so by clearly expressing its intent to abrogate states' sovereign immunity. This Note focuses on one of the exceptions to sovereign immunity-the constructive waiver of sovereign immunity that sometimes occurs when states accept federal funds-and argues that the clear statement requirement should not be applied to federal funding legislation that seeks to provide individual claimants a right to sue their state in state court.

What Is Eleventh Amendment Immunity?

The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states from any damage liability to individuals under federal law. This latter view finds strong support in last term's decision in Seminole Tribe of Florida v. Florida. This article examines the doctrinal support for these competing lines of cases, and looks for ways to reconcile them. The article also considers the rule-of-law ramifications of adopting the latter interpretation of the Amendment. It concludes that so long as officials remain personally liable in damages for their willful violations of federal law, the latter interpretation comports tolerably well with the rule-of-law ideal that for violations of federal rights there be a federally enforceable remedy. If so, then what matters most from a rule-of-law perspective is not so much which of the two interpretations of the Eleventh Amendment the Court adopts, but that it clearly and definitively adopt one or the other.

The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming

Postmodern, Traditional, and Culture as Negotiation-and concludes that, by not considering the cultural choices it creates, the IGRA fails to provide an effective means of strengthening tribal sovereignty and economic development. In particular, Ms. Mezey stresses the IGRA's ironic effect of forcing tribes to surrender some measure of sovereignty in order to exercise the federal gaming right. She also suggests that those tribes that reap the greatest benefits from the IGRA may suffer least from the problems the statute sought to eliminate. I. POSTMODERN CONSUMERISM AND GAMING The Rabbi told my great great grandfather that if he wanted to cure his gambling addiction, he would have to move from Miskolc, Hungary to New York City. The move saved him from the pogroms and the Nazis, but needless to say, it did nothing for his gambling problem.

Nationalism, interethnic relations and federalism: The case of the Sakha republic (Yakutia)

THE WAR IN CHECHNYA has forced painful reassessments of the nature of the Russian Federation. Far from enhancing 'stability', it has increased the danger of polarisation that many in Russia's republics wish to avoid. Yet assumptions of an inherent contradiction between various nationalisms and federalism may be premature. When definitions of nationalism and federalism remain flexible, room for negotiation is still possible in the Russian Federation. Some analysts trying to learn lessons from the break-up of the former Soviet Union make analogies to the Russian Federation itself. Will it survive, or is it another large and unwieldy empire whose time has passed? Did the 'parade of sovereignty declarations' begun in 1990 among Russian republics presage the demise of the Russian (Rossiiskoe) state or was it a healthy striving for greater federal balance within Russia? The sovereignty declarations, in the views of many non-Russians, were part of a dynamic of interrelated republic politics. This dynamic occurred not because of conspiracies across republic lines against the Russian centre but rather out of the hunger of many different peoples of Russia for federal rights they felt they had been long denied under Soviet rule. And for some the appetite for greater sovereignty has grown at first taste. Despite similarities, due to legacies of Soviet nationality policies and hierarchical structuring of ethnically-based regions, each case within the Russian Federation requires description and analysis in its own historical and cultural context. Certain strategic cases, for example that of the Sakha Republic (Yakutia) of Eastern Siberia (the Russian 'Far East'), can help to reveal the messiness and non-inevitability of secession movements. A social anthropological approach is taken here, to demonstrate why the Sakha Republic (Yakutia) case is particularly significant, how its internal interethnic relations have developed, and what this case demonstrates for larger issues of Russian federation survival. Rather than assuming that Russia is an analogue of the Soviet Union, or that Russia's recent nationality politics consistently resemble the imperial polarising style of past multi-ethnic empires, judgement is suspended.1 We argue that various national bids for sovereignty or even full independence have been

Federal Jurisdiction and the Enforcement of Federal Rights: Can Congress Bring Back the Warren Era?

The Warren Court's history of expanding constitutional rights is well known. Less familiar are the many twists of jurisdictional doctrine that accompanied its rights-expanding agenda: the Warren Court supported its innovations in constitutional rights with rules that increased access to the federal courts. Similarly, the Burger and Rehnquist Courts have taken a much more constrained view of constitutional rights, and, less noticeably, they have cut off many of the jurisdictional paths opened by the Warren Court. Those who try to keep track of changes in constitutional law but do not follow developments in the notoriously hard-to-follow field of jurisdiction can never construct a complete picture of the Court's work. Yet what does all this mean? Why is there any connection between the scope of enforceable rights and which courts enforce those rights? Courts are courts, one might think. Whether they are part of the national government or the state governments, they are all bound by the U.S. Constitution to enforce federal law and to regard federal law as hierarchically superior to any other law or policy. One might fairly wonder why we have federal courts at all. There is no obvious impediment to the state courts' handling all the judicial work that might arise in the nation. One might contend that we need some institution capable of making a decision that will bind all courts, but that argument refers only to the need for a Supreme Court. It

Federal Jurisdiction and the Enforcement of Federal Rights: Can Congress Bring Back the Warren Era?

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