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In Copyright


In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from precedent, which I label “the new comity abstention.” The new comity abstention doctrine, currently percolating in the lower federal courts, would bar enforcement of federal rights any time there might be some downstream effect on state court proceedings or require a federal court to review state court procedures. If fully adopted, however, the doctrine would amount to a categorical abdication of the federal courts’ role in enforcing federal rights over more than a third of state policymaking and severe threat to federal jurisdiction.

I proceed in three parts. In Part I, I define the new doctrine and demonstrate how it deviates from its antecedents in scale and scope. In Part II, I argue that the new doctrine lacks coherence, at least when comity and federalism concerns function as a quasi-jurisdictional bar at the threshold of litigation in federal court. Instead, as addressed in Part III, comity and federalism concerns are better understood as informing which remedies the federal court should adopt after adjudication on the merits, not whether to hear the case in the first place. Doing so acknowledges the federalism and comity concerns at play, mitigates the potential harms of federal court review, and still allows federal courts to safeguard access to federal rights.

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California Law Review

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