For Monday, October 6

Tuesday audio--Part I, Part II. Court of Appeals papers due Monday.

We will finish District Courts with Complete Preemption, including the Rodriguez Notice of Removal.

Then move to the next panel, prepping Ex parte Younge and Three-Judge Courts.

For Tuesday, September 30

Monday audio. Double session on Tuesday--9:30-10:45 in RDB 2008, then regular time in regular room. Court of Appeals papers due next Monday, October 6.

Finish everything for District Courts (ignore the questions about § 1350). This will take us through both sessions Tuesday and probably a bit next Monday. Ignore the questions marked "Three Judge" and "Declaratory Judgments;" that is for the next section. Looking at § 1338(a), what is the rule for exclusive or concurrent jurisdiction in federal district courts?

Consider: An independent contractor brings a Title VII action against a business that has fewer than 15 employees. Title VII only prohibits discrimination against employees, not independent contractors; Title VII only prohibits "employers" from discriminating, defined as an entity with 15 or more employees.

What is the basis on which this action fails? 

Another stay and cert before judgment

In Trump v. Slaughter, on whether the president can fire FTC commissioners without cause. The Court stayed the injunction (allowing the firing to take effect immediately) and granted cert before judgment to reconsider Humphrey's Executor and whether district courts can hear federal officers' challenges to removal from office.

According to Steve Vladeck, this is the 23d grant of cert before judgment since February 2019; prior to that, the Court had not taken a case this way in more than 15 years.

For Monday, September 29

Monday audio. No class tomorrow. First make-up at 9:30 a.m. next Tuesday, September 30 in RDB 2007, followed by our regular class.

We will hit a few final words on Courts of Appeals, namely the process for mandamus. How is it consistent with Marbury? Who litigates on behalf of the sued court/judge? 

An interesting-but-rare side issue to our discussion of § 1292(b): The District of Delaware held that that where a case is transferred to a new judge, the new judge cannot certify the old judge's order. This creates some obvious problems for appealability? Worth considering whether the court gets the text right and what the textual solution might be.

We then move to District Courts, covering Structure, Jurisdictional Overview, Removal, and Removal of Exclusive Jurisdiction. Note there are a bunch of provisions, some of which are on the blog; please have them in class. Add to the statutory mix § 2000e-2 (Title VII). Also read Chemerinsky pp. 273-84 and 287-88 and Pfander pp. 133-44--be ready to talk about the meaning and purpose of the well-pleaded complaint rule.

Knowing finality

This Ninth Circuit case involves bankruptcy courts and appeals to district courts, which we will discuss in a few weeks. But it involves appeals and timing and illustrates what we discussed last week: A party must understand when an order is final even if if does not plan to immediately appeal, because it may have no choice--a final order must be appealed

The bankruptcy court (the lowest court) entered an order (vacating a stay) that is understood as final (through a doctrine functionally equivalent to the COD). The adversely affected party did not appeal it at the time, continuing to litigate other issues. The later attempt to appeal was untimely.

For Monday, September 22

Tuesday audio. We do not have class on Tuesday. I expect/hope to finish Courts of Appeals on Monday; if not it may carry to the following Monday (9/29). anel 4 (District Courts) should be ready to go for the beginning of class on Monday, 9/29.

Prep and review Interlocutory Orders. How can SCOTUS grant mandamus, given Marbury? 

For Tuesday, September 16

Monday audio. Panel # 2 papers due tomorrow. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD.

Continue with Finality. Can you explain how COD has broken out, along the lines of the three elements of Cohen? Consider:

   X, the defendant in a criminal prosecution, challenges (as a Fifth Amendment violation) a court policy of keeping pre-trial detainees in five-point shackles during non-jury court proceedings, regardless of whether the detainee poses a security threat; the court holds that the shackling is permissible. Can X appeal under COD? How should we understand the decision for purposes of the third prong of Cohen?

Move to Interlocutory Review, including all the assigned statutes. How do all the various mechanisms fit together as a whole?