Saturday, October 25, 2014

Supreme Court goes to the dogs

John Oliver (of HBO) explains here.

And below is the entire oral argument in last term's Hobby Lobby case.

So, in preparation for our oral arguments: You must decide what kind of dog you are.

Friday, October 24, 2014

The Eleventh Amendment in action

This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, (including FIU); the suit seeks unpaid wages and an injunction requiring student-athletes to be paid going forward. The FLSA is a Commerce Clause enactment.

Any problems jump out at you?

Wednesday, October 22, 2014

Standing Commentaries

Here, here, here, and here. Have at it.


Here is the Complaint in a pending in the Southern District of Florida raising some relevant issues under § 2283, as well as Skelly Oil (and § 1331). Review it for next week.

For Monday

Wednesday audio. Ripeness/Mootness commentaries are due Monday; Pullman commentaries due next Wednesday.

We will continue with § 2283, starting with ACL--could the federal court grant the injunction and why or why not? If not, what should the Union have done to avail itself of the Supreme Court's decision. What does this tell us about the difference between judgments and precedents? In addition to the statutes listed in the syllabus, look at § 1341 (in App. B), § 7421 (discussed in the materials on the Affordable Care Act), and 42 U.S.C. § 1983 (also in App. B, the statute at issue in Mitchum).

Then go ahead and read Younger Background. How does Younger interact with § 2283? What is the point of Mitchum (decided one year after Younger)?

Monday, October 20, 2014

For Wednesday

Monday audio. Commentaries on Mootness/Ripeness are due at the beginning of class next Monday.

We will continue discussing Pullman Abstention. What was the problem with the claim in Pullman? What happens if a court abstains under Pullman? Is this postponement or abdication? What are the limits on abstention? How does certification fit into the mix?

We then will discuss Statutory Abstention/§ 2283. Read the statute carefully and try to understand each of the three exceptions. Please look at 28 U.S.C. § 1341 (the state Tax-Injunction Act) and the material on the federal Tax Injunction Act and the Affordable Care Act.

Wednesday, October 15, 2014

For Monday

Wednesday audio. Standing commentaries are due at the beginning of class on Monday.

Here is the Eleventh Amendment case we discussed today, holding that a plaintiff can make an Ex Parte Young claim for reinstatement.

We will continue with Mootness, beginning with Honig--what new prudential limitation did Justice Rehnquist urge? And how does Justice Scalia view the Art. III/Prudential line with respect to capable-of-repetition? How does mootness apply when the defending party voluntarily changes its behavior, especially the government? If a case becomes moot during the appeals process, what happens to the lower-court decision(s)? Finally, consider the following situation:

Pap's A.M. is bar featuring nude dancing. It challenges an ordinance in state court prohibiting such activities, arguing it violates the First Amendment; the state trial court agrees and enjoins enforcement of the law, a judgment affirmed by the state supreme court. SCOTUS grants cert.; while the case is pending, the owner of Pap's A.M. moves to dismiss the case, stating (in an affidavit) that he has put the bar up for sale, no longer wishes to have nude dancing there, and no longer wishes to challenge the ordinance. Moot?

We then turn to Abstention and Related Doctrines, another way that the federal courts (with a bit of help from Congress) have limited their own roles. Read General Principles, which sets out the general ideas underlying abstention, and Pullman Abstention, which will be the first of our doctrines.

Tuesday, October 14, 2014

Beyond uniformity

This post from Prof. Michael Dorf at Cornell makes an interesting point about the importance of uniformity from SCOTUS decisions on matters such as same-sex marriage. His point is that we have to think of "splits" not only among circuits, but among state high courts. Thus, even if the circuits all fall in line, individual state high courts might not, exercising their own independent constitutional judgment. His example--the state executive recognizes same-sex marriages under the command of a federal injunction,  but the state supreme court decides that spousal privilege does not apply because state law (in its view) does not recognize same-sex marriage--shows the many and varied ways and contexts that constitutional issues can arise.

Monday, October 13, 2014

For Wednesday

Monday audio. Commentaries on Standing are due at the beginning of class next Monday.

We will continue with Ripeness, beginning with Poe and why that claim was not ripe. We then will discuss the connection between ripeness and the Declaratory Judgment Act and how that played out in Medimmune.

We then turn to Mootness. Be ready to discuss the different arguments about whether mootness (and its "exceptions") is an Art. III or prudential doctrine.