Between the Acts: Federal Court Abstention in the 1940s and 50s
35 Pages Posted: 27 Sep 2013
Date Written: September 1, 2013
The abstention doctrines that developed in the 1940s and 50s, as scholars have noted, reflected certain strands of Progressive and New Deal Legal thought, particularly an emphasis on institutional competencies and judicial restraint. This emphasis in turn was tied to the substantive policy goal of reducing federal court invalidation of progressive legislation. This article, written for New York Law School’s symposium celebrating Martin Luther King, aims to make a modest addition to prior scholarship by showing ways in which the reasoning supporting abstention doctrine corresponded to reasoning with respect to substantive doctrine. This correspondence was not only at the general level of emphasizing institutional competencies and judicial restraint, but also at the more specific level of relying on a social-fact-based jurisprudence, imagining any-state-of-facts that might justify legislation, and balancing governmental interests against formerly more absolute individual rights. Reinforced by such reasoning, abstention doctrine at mid-century appeared to be heading in the direction of requiring exceptional circumstances not to abstain when plaintiffs contested state and local regulation. Justice Douglas, later joined by Justice Brennan and Chief Justice Warren, would play a critical role in resisting abstention, thus helping to usher in the modern civil rights era. Because abstention subsists and continues to evoke academic criticism, it may be easy to forget how pervasive a doctrine abstention once threatened to become.
Keywords: civil rights, abstention, federalism, federal courts, constitutional law, legal history, judicial review
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