Tuesday, October 6, 2015

For Thursday

Tuesday audio. District Court commentaries due at beginning of class on Thursday.

We have final thoughts on Sovereign Immunity. Was Quern v. Jordan a valid Ex Parte Young action and why? What were the sovereign immunity problems in Tyler v. Commonwealth? Was the Court's Ex Parte Young analysis correct?

We then turn to Justiciability, beginning with Standing; prepare Constitutional Limits and Statutory Standing; we will be looking at them together to begin with a big-picture discussion. What does standing require and what are its sources? What is the underlying logic/purpose of a strict standing requirement? What is the connection between standing and the merits of the claim?

Monday, October 5, 2015

Rethinking Gunn v. Minton

An additional thought as we put District Court Jurisdiction behind us. In Gunn v. Minton, the plaintiff sought more than $ 100 million in his legal malpractice claim (the underlying patent action was against NASDAQ and the NYSE and the patent potentially was very valuable). Does that potentially affect whether the federal issue/interest is "substantial" in a systematic sense? Why or why not? Why might the system of federal courts want the patent attorney in that case to have a federal forum?

Note that SCOTUS never talked much about the underlying lawsuit in the opinion.

Thursday, October 1, 2015

For Tuesday

Commentaries on District Courts/Non-Article III are due at the start of class next Thursday.

We will continue with (and hopefully) complete Sovereign Immunity. Review Ex Parte Young with a focus on Eleventh Amendment issues--what is the relationship between Young and the Amendment? When can Congress abrogate sovereign immunity and when can it not and what is the test for different powers? In what way(s) is Ex Parte Young a legal fiction. In what ways is it not a legal fiction? Are there any limits to Young actions?

Also, note that one of the cases on which you can write an opinion is Islamic Republic of Iran v. Peterson. SCOTUS this morning granted cert in that case, specifically on the United States v. Klein/separation-of-powers question you were assigned. Although that is a subject we will get to late in the semester, it obviously is a live constitutional issue.

Tuesday, September 29, 2015

For Thursday

Tuesday audio.

We have a few final points on Non-Article III Courts. How do Stern claims get dealt with? What is the role of consent in picking a non-Article III forum? Are there/should there be limitations on the right to consent?

We then turn to the first of the judicially created limits on federal jurisdiction, Eleventh Amendment.  Note the history of the Amendment's enactment, as well as competing views on its meaning? What does "Plan of the Convention" and "Procedural Safeguards of Federalism" mean and how do they affect our understanding of the Amendment. Review Ex Parte Young with a focus on Eleventh Amendment issues--what is the relationship between Young and the Amendment? When can Congress abrogate sovereign immunity and when can it not?

Thursday, September 24, 2015

For Tuesday

Thursday audio.

We will continue with Declaratory Judgments; go back through the three situations and see what an enforcement action would look like and what anticipatory actions might look like. Then, consider: Does § 2201 grant jurisdiction? If not, where does a district court get the power to decide these cases? How does the well-pleaded complaint work with an anticipatory declaratory judgment action?

Then move to Non-Article III Courts. What does it mean for a court or judge to be "non-Article III"? What is the point of moving these cases out of Article III courts?

Reminder that all posts, including responses to Commentaries, should be done as new posts through blogger.com. Everyone should be registered as an author; if not, follow the instructions in the syllabus.

Tuesday, September 22, 2015

For Thursday

We will pick with Kiobel. How does Kiobel apply and build-on the understanding of the ATS in Sosa? Why did this claim fail? What is the difference between "entertaining" a cause of action and "creating" or "recognizing" a cause of action

We then return to Ex Parte Young and the two statutory responses to Young--three-judge district courts and the Declaratory Judgment Act. Several statutes are assigned (several from the blog), so read them closely. Consider:
   • Injunctions should issue only if there is "no adequate remedy" in a court of law--why was this prong satisfied in Young?
   • If not through the lawsuit, how else could the RR have challenged the Minnesota law?
   • How does a declaratory judgment differ from an injunction and how does the creation of the declaratory judgment respond to complaints about Young?
   • How does the well-pleaded complaint rule work with declaratory judgment actions?
   • How does the 3-judge district court operate (see § 2284)? And how does it respond to the complaints about Young?

Consider the following situations. What would "coercive" litigation look like and what would "anticipatory" or "preemptive" litigation (through a declaratory judgment) look like:

1) Mottley: Mottleys believe RR is in breach; RR has defense of federal statute; Mottleys believe statute is unconstitutional.
2)  Medimmune
3) X provides liability insurance for A; B is injured by A; A wants X to cover the claim
4) Skelly Oil

Thursday, September 17, 2015

Court of Appeals Commentary

Here. Feel free to post comments and responses.

For Tuesday

Thursday audio.

We continue with Implied Statutory Rights of Action. The first question will be on the problems created by the court's presumption of exclusivity in stated remedies, which turns on the purpose behind having private enforcement of statutes. We will finish going through the Cort factors, so review that reading. Be sure to review Armstrong.

We then move to Customary International Law, with § 1350, Sosa, and Kiobel (download from Blog). What does§ 1350 mean and where does the substantive law come from? How is Kiobel consistent with that reading?

Finally, we will move to Three-Judge District Courts, focusing first on Ex Parte Young (which also will help you understand Armstrong). Look at §§ 2281-2281 and § 2284 (on the blog). How does the three-judge court respond to Young?