Georgia Law Review, Vol. 19, No. 4 (Summer 1985), pp. 1097-1133


Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the choice of forum issue arises. Part II discusses the premise that Congress created a general federal cause of action against state actors for constitutional violations, a concept that Professor Redish passes over too quickly, and shows that the cause of action cannot be defended in terms of legislative intent. Part III examines the Court's justifications for abstention more carefully than Redish does, but shares his conclusion that the Court's doctrinal foundations must be abandoned. Part IV proposes that the area be viewed as a kind of federal common law and addresses the article III and other problems this approach presents.