Monday, September 17, 2018

For Monday (Updated)

Monday audio. Again, no class on Wednesday.

We continue with Declaratory Judgments, the other congressional response to Ex Parte Young. How does the D/J/A work? How is a D/J different than an injunction and what are the perceived benefits of a declaratory judgment compared with an injunction?

In the following disputes, determine what an enforcement or coercive action would look like and what an anticipatory or preemptive action for a D/J would look like. Then consider whether the anticipatory actions would arise under federal law for § 1331 purposes.

1) The dispute in Medimmune
2) The dispute over the free passes the Mottleys believe the RR owes them
3) The dispute in Skelly Oil
4) X provides liability insurance for A, including a duty to defend A and to indemnify A for any judgment; B has a claim against A.

Finally, consider a recent and highly controversial attempted use of the D/J/A, by MGM Resorts in the dispute with victims of the Mandalay Bay mass shooting. One complaint is here; a story is here;  the relevant statute and implementing regulations. Does this arise under?

Time permitting, we will move to Non-Article III Courts, which will take us through the rest of Monday and Wednesday of next week; the panel is Adrian, Matthew, and Nathalie. What are the types of non-Article III courts and what is the purpose behind them? What makes a tribunal "non-Article III" and what are the benefits and drawbacks to them? In addition to the statutes cited, look at 28 U.S.C. § 636, which lays out the powers of magistrate judges. Finally, in the piece labeled SCOTUS Review of Non-Article III Tribunals, review the assigned provisions and consider whether § 1259 is constitutionally valid in light of Marbury.

Thursday, September 13, 2018

The NInth Circuit

The Ninth Circuit is huge, consisting of 29 active circuit judges and another 16 senior circuit judges; it so big that it never sits en banc (the entire court), but rehearing is in larger panels of 16 randomly selected judges. En banc review is important because it is the only way to overrule prior circuit precedent.

There has been talk of breaking up the circuit for years (especially among congressional Republicans, who believe the circuit too liberal). A new bill in the House Judiciary Committee, being marked up today, would divide the circuit into three geographic divisions (the law of each not binding on any other division) and a circuit division (consisting of randomly selected judges from the geographic divisions) to perform the en banc functions and to hear certain appeals.

This will not go anywhere with less than two meaningful months left of the current Congress and no taste for this in the Senate, but it is an interesting proposal. Note that it is introduced alongside a proposal to increase the number of Article III judgeships throughout the system.

Wednesday, September 12, 2018

Thoughts on "preserving resources"

A quick comment on the second reaction paper for court of appeals, because I want you to see the complexity and detail in your arguments.

The third argument in this paper is that replacing the Collateral Order Doctrine with a rule or statute would save resources, because courts and parties would know whether something is immediately appealable and would not have to spend time and energy litigating the issue or figuring it out. But is this true?

We have to think more carefully about what a replacement statute might look like. It can't be "let's replace it with a statute and that will be better;" we have to be specific about what the statute would say and how that must apply. One possibility would be a statute that codifies the current three-part test for C/O/D. But that leaves us where we are now--having to litigate and apply those factors to a new situation to determine whether an appeal is proper. We now have a statute to look at, but the courts and parties must do the same work, meaning no resources are saved. A second possibility would be a statute enumerating specific situations for appeal--immunity, sovereign immunity, whatever, which means other situations (say, denial of attorney-client privilege) are not appealable. While such a statute saves resources, it presents two new problems. First, there is no rule or statute that defines jurisdiction so sharply, so such a statute would be difficult to draft. Second, and more important, such a statute leaves no room for the development of the law or the possibility that a new, heretofore-unthought-of class of issues might arise that does warrant immediate review. So the second type of statute would be ineffective as a legal tool, because it could not be adapted to new situations.

This is not to pick-on the (unknown) author of a solid paper. It is to emphasize that you need to check your most simplistic assumptions when it comes to things such as preserving resources or avoiding floodgates or similar arguments. The issues are always more complicated than it seems and it is important to follow that complexity all the way through.

Court of Appeals Reaction Papers

Here and here.

Comments or responses encouraged.

For Monday

Wednesday audio. Remember that we have no class next Wednesday; also to be made up during a lunch period TBD.

We will continue and complete District Courts; we will start with the ATS and the question of whether that statute grants jurisdiction, creates a cause of action, both, or neither. What is the problem with a jurisdiction-only interpretation?

 Then move to Three-Judge Courts and Declaratory Judgments, both of which are responses to Ex Parte Young (which is described well in Pfander). How are three-judge courts and D/Js a response to the perceived problems of Young? Review Shapiro and § 2284 for the process of three-judge courts. What are the perceived benefits of a declaratory judgment compared with an injunction? What are the perceived benefits of an anticipatory action (such as for a D/J) as opposed to waiting for a coercive or enforcement action.

In the following disputes, determine what an enforcement or coercive action would look like and what an anticipatory or preemptive action for a D/J would look like.

1) The dispute in Medimmune
2) The dispute over the free passes the Mottleys believe the RR owes them
3) The dispute in Skelly Oil
4) X provides liability insurance for A, including a duty to defend A and to indemnify A for any judgment; B has a claim against A.

Depending on how fast we go, we should finish District Courts by Monday, September 24; we then will move to Non-Article III Courts.

Tuesday, September 11, 2018

The end of Complete Diversity?

This proposal, pending in the House, would switch § 1332 from requiring complete to minimal diversity. It also adjusts the unanimity requirements for removal. No idea whether it will go anywhere.

Wednesday, September 5, 2018

For Wednesday

Wednesday audio. No class on Monday; this class will be made-up during a lunch period (12:30-1:45) T/B/D. Court of Appeals Reaction Papers due in class on Wednesday.

We continue with Arising Under. How does Morrison describe the meaning or effect of the statute's "reach"--is extraterritoriality a matter of jurisdiction or merits? What about whether the Title VII plaintiff is an employee or independent contractor? Then look at the discussions of Grable and Gunn; what is the broader test for "arising under" and why was it satisfied or not in those cases? Why is the Mims/Well Works "creates the cause of action" standard sufficient--why is a broader test necessary?

Then move to Complete Preemption (including the Notice of Removal in Rodriguez v. MLB) and Alien Tort Statute.

Then move to Three-Judge Courts, which begins with the background of Ex Parte Young. Know the facts and result of Young, then consider how the creation of 3-judge courts makes sense as a reaction to Young.

Tuesday, September 4, 2018

For Wednesday

Tuesday (as Monday) audio. Needless to say, having only 6 of 14 class members present is not acceptable. Court of Appeals Reaction Papers due next Wednesday, September 12.

We continue with District Courts, covering Introduction, Removal, "Arising Under", and Removal and Exclusive Jurisdiction. What are the arguments against the Well-Pleaded Complaint Rule, especially as they connect to the underlying purposes of arising under jurisdiction. Based on all the statutes assigned (including those on the blog), what are the three types of statutes giving district courts jurisdiction under the "arising under" language of Article III? How does removal operate in general? (Note: Use the current removal provisions in the Pfander book). Why are remand orders not reviewable (subject to strange exceptions)? Finally, consider the following, in light of all statutes assigned:

A sues X in state court on a state claim; X asserts a counterclaim for patent infringement. Can this case be removed to district court?

Finally, what does it mean for a claim (in the W/P/C) to "arise under"? What is the connection between the merits of a claim and the jurisdiction of a court under Morrison?