Wednesday, November 14, 2018

For Monday

Wednesday audio--Morning, Make-up. Reax Papers on Younger, § 2283, and the rest of abstention due when you come for oral arguments.

Double-session (regular time and 12:30-1:45 make-up) on Monday. Opinion papers are due at the beginning of the 12:30 make-up. Be on time.

We will combine our last two sections and panels, which are unified by the question of how much control Congress has over the federal courts. What does "judicial independence" mean and what types of independence are there? What does Klein stand for and how have recent cases (such as Bank Markazi) understood Klein? What is the principle of Plaut? Note the several proposed and passed statutes to download from the blog and consider under these precedents.

Pullman Reax Papers

Here and here.

I am going to make a comment having read both. Both offer creative ideas and arguments. But both make the mistake of confusing the certification/Pullman distinction with the general wisdom (or lack thereof) of the federal court delaying so a state court can resolve ambiguous state-law questions. That is, the question of whether Pullman or certification is the preferable mechanism is separate from the overall wisdom of the federal court sending state-law issues into state court.  That is, if you think giving states more opportunities to decide state-law issues is a good thing (as one paper does), it does not matter whether that is by certification or Pullman.

Thursday, November 8, 2018

Oral Argument Schedule (Corrected) and Standing Order on Procedure

Argument Schedule and Standing Order on Procedure.

I tried as best I could to mix-up the Civil Rights and Fed Courts cases.

Wednesday, November 7, 2018

Due Dates

Because of the tight schedule, here are the due dates for various things:

Pullman Reax Papers: Wednesday, November 14

All final Reaction Papers (Younger, Statutory, Other Abstention): At oral argument (although you can turn it in sooner)

Opinions: 12:30 (start of the make-up class) on Monday, November 19.

For next Wednesday (Both classes)

Wednesday audio. Double session on Wednesday for Fed Courts, at 9-10:15 and 12:30-1:45, both meeting in RDB 2007. Civil Rights should plan on attending the morning session and at least part of the lunchtime session, up to and through our discussion of Rooker-Feldman.

Civil Rights will meet tomorrow (Thursday, November 8) at 1:45.

We continue with Younger. Looking at what Younger covers, how can a federal plaintiff avoid Younger's bar, without having to rely on the exceptions? Consider the following:

Doe, a student at the University of Kentucky, was twice found by a university disciplinary body to have violated the university code of conduct; both decisions were reversed by the university appeals board, which identified constitutional and procedural defects in both proceedings. The disciplinary body scheduled a third hearing.

Doe files a § 1983 action in federal district court, arguing that the code of conduct violates the 14th Amendment and Title IX and seeking an injunction stopping the third hearing and prohibiting the university from enforcing the code of conduct against him.

Fed Courts should then do the remaining abstention doctrines--Colorado River, International Comity, Rooker-Feldman, and "Other." We will begin with Rooker. What is the source of Rooker and its underlying policy? Should it apply only to final state court orders or also to interlocutory orders? What is the difference between Younger and Rooker-Feldman? What about between Rooker and preclusion?

Civil Rights should stay through the Rooker discussion.

Monday, November 5, 2018

Mootness/Ripeness Reax Papers

Here and here.

Make-up classes

We will do lunchtime make-ups on Wednesday, November 14 and Monday, November 19. Both will be from 12:30-1:45 in RDB 2007 (our regular room). If you have a conflict, let me know ahead of time.

For Wednesday (Both Sections)

Monday audio.

A few final issues on tax injunctions: Why are challenges to tax credits not barred? Are there circumstances in which a federal court need not abstain even if the action does challenge the collection of taxes? What about other remedies for invalid taxes, such as damages or declaratory judgments (on the latter, the answer is different for federal and state taxes).

We then move to Younger Abstention; prep both Origins and Extensions. What is the connection between Younger and § 2283? What is the point of Mitchum, decided one year after Younger? What are the elements of "Our Federalism?" What is the scope and limits of Younger abstention?

Wednesday, October 31, 2018

Overlapping Classes (Big Picture)

Big-picture, Abstention covers about six classes in Fed Courts but only about four in Civil Rights. So doing them together requires some moving around. So here is how we will do it:

• We will finish Pullman on Monday
• We will do Statutory Abstention, but covering only the first exception in § 2283 ("expressly authorized") as it applies to § 1983, along with the tax-injunction statutes.
• We will do all of Younger.
• We will do all of Rooker-Feldman.

The classes will then break up and we will circle back to the rest of Statutory, Colorado River, and International Comity. I will provide guideposts as we go.

For Monday (Both Classes) (Reading assignments updated)

Wednesday audio. Fed Courts: At the start of class Monday, I will get information about who is which side for arguments; please meet with opposing counsel and co-Justice before then.

Ripeness/Mootness Reax Papers due for Fed Courts on Monday. Entity Liability Reax Papers for Civil Rights also due on Monday.

We continue with Pullman. What is the drawback to Pullman? What is certification, how does it work with Pullman, and how does it alleviate those concerns? Why would a plaintiff, sent to state court under Pullman, not want to raise his federal constitutional issues in state court? What is the potential problem if he doesn't and how do plaintiffs avoid this problem?

Be ready to discuss the following problems and whether Pullman abstention is proper (Civil Rights: These are in § 8.07):
   1) State law (pre-Obergefell) defines marriage as between one man and one woman. A same-sex couple sues in federal court, claiming state law violates the 14th Amendment. At the same time, there is litigation in state court (to which the federal plaintiffs are not party) challenging the same law as violating state equal protection and due process.
    2) The state litigation described in # 1 results in the state supreme court declaring the marriage ban invalid. The voters then enact (by referendum) a constitutional amendment defining marriage as between one man and one woman. Two state issues lurk as to the new constitutional provision. First, is whether it was an amendment or revision to the state constitution (only an amendment can be done by popular vote). Second is whether one constitutional provision violates another. Several couples sue in state court, challenging the new provision on 14th Amendment grounds.
We then move to Statutory Abstention, but only the portions that overlap in the classes, focusing on § 1983 and the first exception to § 2283, as well as the tax injunction acts (§§ 1341 and 7421). What are the rationales behind the anti-tax-injunction statutes? What are the limitations on their scope, both as a matter of the text and of judicial interpretation?
   Fed Courts students: Read all the assigned statutes, along with Chemerinsky pp. 779-89 and 797-811 and Pfander pp. 328-32. The panel for that is Payton, Sarah, and Annasofia, but you don't have to sit in place.
    Civil Rights students: Read Part B Chapter 8.

We may at least begin our discussion of Younger Abstention, at least getting to Younger itself. What was the lawsuit in Younger? What is the connection between Younger and § 2283? What is "Our Federalism" and its elements? Is this abdication or postponement?
   Fed Courts: Read the assigned statutes, Chemerinsky pp. 871-83 and 905-11 and Pfander 345-49
   Civil Rights: Read all of § 8.10.

Monday, October 29, 2018

Standing Reax Papers

Here, here, and here.

For Wednesday

Monday audio.

Remember, please confer prior to Wednesday morning with co-justice about who will be Chief and with opposing counsel as to who will represent which party. I will gather that information at the beginning of class on Monday.

We are done with Ripeness/Mootness, although we will carry over with that final question about the other reasons for a special mootness rule once the case reaches SCOTUS. Reax Papers due next Monday.

We then turn to Abstention, covering General Principles and Pullman. What is the basic idea of abstention? What are the arguments for and against abstention, particularly about the power of the courts to create these doctrines? What is the basis for Pullman abstention, what are its elements, and what are the limits on courts declining to hear a case? Below is a very basic background on seeking equitable relief in constitutional cases, which you should understand in reading this material (note that some of this is review, but brings a number of disparate things together).:

Prospective Relief: Overview:

Injunctive relief covers three distinct remedies--a Temporary Restraining Order (TRO), Preliminary Injunction, and Permanent Injunction. A TRO is typically issued ex parte and under FRCP 65, can last no more than 14 days; the goal is to freeze the status quo (e.g., prohibiting enforcement of the challenged law) until the plaintiff can serve the complaint and proceedings can begin. A Preliminary Injunction is issued following some adversarial proceeding and freezes the status quo until litigation can be resolved. A Permanent Injunction is a final judgment, following trial.

All three remedies require the same showing by the plaintiff, with a sliding scale as to the level of proof. The elements are: 1) Substantial likelihood (for TRO/Prelim) or Actual (Perm) success on the merits of the claim (i.e., that the challenged law is constitutionally invalid); 2) Irreparable harm to the plaintiff if she does not get the injunction; 3) No adequate remedy at law; 4) The injury to the plaintiff without the injunction is greater than the injury to the defendant if the injunction issues); and 5) the injunction is in the public interest.

A simple constitutional case might proceed as follows: Plaintiff sues the responsible executive officer under Ex Parte Young, often moving for a TRO at the same time. There will be a hearing and often a decision on a preliminary injunction within the first few weeks of litigation. Prior to 1976, all such challenges went to three-judge courts; post-1976, it is only the cases covered by § 2284. And under § 1292(a)(1), an order granting, denying, or otherwise ruling on a request for an injunction is immediately appealable, meaning much resolution of constitutional questions is on appeal from a preliminary injunction.

Finally, remember that a declaratory judgment is an available alternative remedy in an action to halt enforcement of a constitutionally invalid law.

Saturday, October 27, 2018

For those writing or arguing Stinnie

For those arguing or writing their opinion on Stinnie v. Holcomb, here is a recent decision from the Middle District of Tennessee considering a challenge to a similar state law suspending drivers' licenses dues to unpaid court fees, including a Rooker-Feldman defense.