Monday audio. Procedure papers due tomorrow. Confer w/ co-counsel and co-justice about roles prior to 9 am tomorrow.
Some clarifications from after class:
1) States must establish certification processes; absent that state decision, certification is impossible. Many certification processes are discretionary--the state high court can decline to answer the certified question. So what happens if the state refuses to answer the question? The federal court can continue and work with its best understanding of the statute. Or it abstains under Pullman and the plaintiff takes the long way through the state system. Recall that certification and Pullman overlap in requiring an ambiguity--so if the law is ambiguous enough that the federal court believed certification appropriate (and it asked the state court to answer, only for it to refuse), the federal court probably must abstain under Pullman if the state court declines certification.
2) Some confusion about Constantineau. Plaintiffs challenged the law on federal due process grounds; Wisconsin argued that the question of the law's validity on state due process was ambiguous. Had the Court accepted that, plaintiff would go through the state judiciary and obtain a decision as to the law's validity under state due process. If plaintiff wins because the law is invalid under the state constitution, the dispute is over--the law is invalid and cannot be applied against him. If plaintiff loses, he returns to federal court and the 14th Am issue is unavoidable; the law is valid as to state law and now the federal court must assess its validity under the federal constitution.
3) Another reason certification is preferable to Pullman: If the state court imposes a limiting construction on state law, the plaintiff may still argue that even the narrowed law violates the federal constitution. The case may inevitably return to federal court. So certification--right to the highest court, right back to the federal court--is preferable.
4) § 7421 does not have a "plain, speedy, and efficient remedy" element. But the federal courts all know about the Tax Court and accept that as an alternative, so it's unnecessary. Federal courts are more skeptical of state tax procedures, as seen in the Sixth Circuit's decision in Howard.
We will work the two Pullman Puzzles, then move to Younger, which is the most prominent and common abstention doctrine in § 1983 litigation. Our discussion will hit the underlying policies, then we will use the Puzzles to work through the multi-part steps of the analysis. Be able to work through all three steps of the Younger analysis for each puzzle, using the major SCOTUS cases (the ones listed on the Syllabus). Be ready to discuss:
• What the Court means by "Our Federalism."
• How Younger interacts with § 2283 as interpreted in Mitchum one year after Younger.
• Whether this is abdication or postponement and how a federal forum comes into play. Note the pre- and post-1988 versions of § 1257.
• How parity explains Younger.
