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.

Thursday, October 9, 2014


On a number of subjects. Feel free to post comments, reactions, etc. Have at it.

Eleventh Amendment.

District Court Jurisdiction.

Federal Common Law.

Non-Art. III Courts.

Wednesday, October 8, 2014

For Monday

Wednesday audio.

We will continue with some discussion of Kagan's dissent, including the hypotheticals she lays out. Is she right that all the situations would be identical? Also, consider: It may well be that because the Arizona program funded religious and secular schools, it was neutral between religion and non-religion and thus would not have violated the Establishment Clause. So why is the dissent so worried about the lack of Flast standing here?

We then will discuss Standing to Appeal, looking at Hollingsworth and Windsor. Can the standing decisions in these cases be reconciled?

We then turn to Ripeness/Mootness, doing just Ripeness for Monday. Note two cases (SBA List and Medimmune) to be downloaded. What is the connection between Standing and Ripeness and are they truly distinct?

Monday, October 6, 2014

Constitutional change without SCOTUS

SCOTUS today denied cert. in all seven petitions challneging statee bans on same-sex marriage (in all seven, the lower courts invalidated the state laws). Here and here are discussions of the immediate effects, which suggest that, within a few weeks or month, same-sex marriage will be legal in more than 30 states, owing to a combination of injunctions, binding precedent, and the signals that SCOTUS sends to lower courts.

Some questions to think/comment on:

• Why didn't SCOTUS take any of these cases?
• How does that decision comport (or not) with the purposes of having one Supreme Court?
• While cert denials have no precedential force, do the denials here hint at anything about SCOTUS's views? What should/will lower courts read from these denials?
• Will SCOTUS ever rule on marriage equality?

For Wednesday

Monday audio. Again, Eleventh Amendment commentaries due at the beginning of class on Wednesday.

We will continue with Third-Party Standing. Read all the short note cases in the reading; consider why we talk about these as third-party standing cases, rather than first-party standing, if the plaintiffs all satisfy Article III. Also, consider one more case: During the 2012 election season, the Obama Campaign brought suit to enjoin certain Ohio regulations that allowed early voting for absentee and military voters, but no one else. Does the Campaign have standing? And if so, why is it third-party or first-party standing?

We then move on to Taxpayer Standing, with a focus on Winn (on the Blog) and standing to defend/appeal.

Finally, here is the Seventh Circuit opinion in Association of American Physicians and Surgeons v. Koskinen, the challenge to implementation of the ACA that we discussed in class today.