Fred O. Smith, Jr. (Emory University School of Law) has posted Younger and Older Abstention (123 Mich. L Rev. ___ (2025), forthcoming) (55 pages) on SSRN. Here is the abstract:
When victims of systemic rights violations in state criminal proceedings seek federal court relief, governmental defendants often ask federal courts to abstain for reasons of federalism. These arguments frequently disregard the Supreme Court's emphasis that abstention is a narrow exception to federal courts' duty to exercise jurisdiction. Lower federal courts are increasingly employing a form of "free-floating federalism," diverging from the Supreme Court's careful balance between comity and individual rights. This has led to a significant expansion of criminal abstention doctrine in lower courts, leaving severe irreparable harm unaddressed in an increasingly broad range of settings, such as pre-trial detention and child-welfare proceedings.
Given the federal judiciary's increased emphasis on tradition in interpreting contemporary equitable remedies, this Article contrasts these novel expansions with historical equitable practices. While the doctrine of criminal abstention is now known as "Younger abstention" after the 1971 case Younger v. Harris, criminal abstention and its core exceptions have roots in centuries-old equitable proceedings in both the United States and England. Historically, courts of equity intervened in ongoing criminal proceedings when those proceedings were inadequate to redress harm and when irreparable harm would otherwise result. Moreover, in the decades after the Fourteenth Amendment, federal courts similarly balanced federal constitutional rights against state interests in ways that accounted for a federal judicial role in ending great irreparable harm. The most recent lower court expansions of the doctrine are in severe tension with that tradition.
I find the argument intuitively appealing, because (as discussed here in an entirely different context) I think federal courts have an obligation to hear (at least) constitutional and federal statutory claims absent a near-founding era practice to the contrary. So I think the presumption is against abstention and related doctrines. I'm not sure how that affects Younger abstention though.
Posted at 6:12 AM