A Full and Fair Capacity

Date01 November 2005
Published date01 November 2005
Subject MatterArticles
A&S278591.vp ADMINISTRATION & SOCIETY / November 2005
Federal Courts Managing State Programs

Indiana University

Federal courts play a significant role in the management and execution of public programs.
Judicial intervention is evident in examples ranging from prisons to mental hospitals to
schools. To clarify the appropriateness of federal judicial intervention, the authors construct
a so-called full and fair judicial and administrative capacity standard. Where state judicial
and administrative capacities are evident, federal courts do well to refrain from exercising
jurisdiction. The analysis of the authors also reflects consideration of the capacity of the
federal judiciary to manage a state administrative scheme.

courts; judicial capacity; management; administrative capacity; abstention
More than two decades ago, Justice Sandra Day O’Conner (1981) iden-
tified an increasing trend of federal courts granting state courts responsi-
bility for determining federal constitutional questions in criminal cases.
Concerning civil cases, however, O’Connor made a contrasting observa-
tion noting that in “cases of great public concern,” federal jurisdiction is
far less restricted than in criminal cases. A similar and possibly related
trend is equally remarkable: Federal courts are playing an increasing role
in the management and execution of public programs. This increased
presence is evident in examples ranging from prisons to mental hospitals
to schools, among other public programs (Friedman, 1992; O’Leary &
AUTHORS’ NOTE: We wish to thank Laurence E. Lynn, Jr., and Anthony M. Bertelli for
their insight as we developed this research. Special thanks go to John Rohr for his contribu-
tions and encouragement on an earlier version of this article. We are also indebted to the
anonymous reviewers for their helpful comments. Correspondence concerning this article
should be addressed to Robert K. Christensen, 410B SPEA, Indiana University,
Bloomington, IN 47405; phone: (812) 855-1392; fax: (812) 855-0269; e-mail: rokchris@

ADMINISTRATION & SOCIETY, Vol. 37 No. 5, November 2005 576-610
DOI: 10.1177/0095399705278591
© 2005 Sage Publications

Wise, 1991; C. R. Wise & O’Leary, 2003). The question arises whether
federal courts are always the best equipped institution to regulate and
manage state and local programs, even when individual rights protection
is involved, or whether the federal system provides alternative institutions
that can share the responsibility.
Regarding constitutional adjudication, O’Conner (1997) articulated
that state courts are often well equipped to hear both criminal and civil
federal constitutional questions and that federal courts should defer juris-
diction to state courts that provide a “a full and fair adjudication” (p. 249).1
Regarding the terrain of the management and execution of public pro-
grams, parallel arguments are relatively underdeveloped. Although no
full and fair legal canon exists to signal a federal court when judicial inter-
vention is warranted and necessary in the execution of state public pro-
grams, the U.S. Supreme Court has introduced a doctrine articulating var-
ious circumstances that would signal federal courts that they should
abstain from considering a federal question in favor of state court consid-
eration. It is in the articulation of this doctrine that a more effective
division of labor for individual rights protection may be found.
The abstention doctrine permits federal judges, at their discretion and
under certain circumstances, to decline to decide cases otherwise properly
before the federal courts (C. R. Wise & Christensen, 2001). It is based on
the notion that federal courts should not intrude into sensitive political and
judicial controversies unless absolutely necessary, favoring instead reso-
lution in state courts.
Three specific articulations of the general abstention doctrine are the
Younger, Pullman, and Burford abstentions (for a more thorough review
of abstention doctrines, see C. R. Wise & Christensen, 2001). Younger
abstention applies to state criminal trials and calls for federal court absten-
tion in cases where litigation involving parallel issues of law and fact are
simultaneously going on in both state and federal courts (Brody, 2001, p.
556). Pullman abstention allows federal courts to abstain so that state
courts can settle an underlying issue of state law and in so doing avert the
need for a federal court to solve the federal constitutional question. In this
regard, the Supreme Court has noted the tradition of federal courts avoid-
ing constitutional adjudication if the controversy could be resolved by rul-
ing on a state issue. More in keeping with the focus of this article is
Burford abstention, which calls for a dismissal of the federal case when
the federal court determines that timely and adequate review of a chal-
lenged state regulatory action is available in state court and when there are
difficult questions of state law bearing on policy problems of substantial

public import or where the “exercise of federal review of the question in
the case would be disruptive of state efforts to establish a coherent policy
with respect to a matter of substantial public concern” (Colorado River
Water Conservation Dist. v. United States
, 1976, p. 814).
This article argues that on consideration of federalism issues, where
full and fair (to borrow O’Connor’s [1997] phrase) state judicial and
administrative capacities are evident, federal courts do well to refrain
from exercising jurisdiction. Abstention can provide the means to accom-
plish this. Unfortunately, to this point, the development of abstention doc-
trine has not been clear and robust, and ambiguities regarding when it is
appropriate may be found in federal litigation and pronouncements of the
Supreme Court (for a discussion of these, see C. R. Wise & Christensen,
2001, pp. 394-397). To resolve and clarify the existing ambiguities, this
article proposes that the federal courts employ a balancing test that incor-
porates the major factors bearing on the likelihood of providing effective
consideration of asserted claims and successful remedies. This balancing
test must include an assessment of the capacity of the federal judiciary to
play the role of manager of a state administrative scheme. In the end, a fed-
eral court’s decision to intervene or abstain should be the result of balanc-
ing three major factors: federalism concerns, assessments of judicial
capacity, and assessments of administrative capacity.
Institutional reform litigation is heavily populated with instances of
federal judicial intervention. Bertelli and Lynn (2001) note the dilemma:
Plaintiffs routinely accuse public officials of violating their constitutional
rights. Federal judges order officials to make sweeping changes to their
agencies. Of course, sometimes, as with the school desegregation cases,
federal courts have had no choice but to be heavy-handed with public offi-
cials. Yet court directives often contradict the duties and responsibilities of
public managers. The argument for judicial intervention is rarely straight-
forward. (p. 317)
Considering the federal judicial role in ensuring administrative account-
ability such as citizens’ rights protections, Judith Resnik (1995) observes
that the issue of judicial intervention, or the exercise of federalism juris-
diction, finds a broader conceptual home in the familiar tensions of the
federalism context.

The issue of federal court jurisdiction is a subset of the general question of
federalism, and whatever overall picture of federalism is chosen is then
reflected in the tasks permitted the federal courts. The federal judiciary’s
long range planners remain loyal to . . . state court judicial authority [as] the
baseline, and the burden of proof is placed on Congress to explain why to
give federal courts jurisdiction. The judiciary also remains loyal to the
premise of dichotomous choices, of state or federal court action rather than
forms of collaboration, parallel to those ascribed by political scientists to
other branches of United States government. (p. 238)
Thus, when considering suits such as those arising under institutional
reform litigation, federal courts essentially face two alternatives. The fed-
eral court may choose to exercise jurisdiction based on the federal consti-
tutional nature of the question, or it may abstain in accordance with
abstention doctrine. To reiterate, abstention is grounded in principles of
comity and federalism and is based on the notion that federal courts
should not intrude in sensitive state political and judicial controversies
unless absolutely necessary. Proponents of abstention feel such contro-
versies should instead be settled by state courts (C. R. Wise &
Christensen, 2001, pp. 389-390).
Significantly, the U.S. Supreme Court has recently expanded the rec-
ognition of the role of federalism in federal jurisprudence. C. R. Wise
(2001) argues that decisions made by the Supreme Court since the early
1990s constitute a pattern of new judicial federalism. This reinforcement
has important implications for Burford abstention (C. R. Wise &
Christensen, 2001). In filling out its federalism doctrine, the Court has

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