Thursday, December 4, 2014

Oral Argument Change

The stand-alone case that I will be arguing was originally set-up as Colgate-Palmolive v. Barlow (Colgate as petitioner, having lost below). The en banc Fourth Circuit just reversed the panel and held that a motion to vacate a remand order is not barred by § 1447(d). So the en banc is the decision on review to SCOTUS, with Barlow as petitioner and Colgate as respondent.

I will be arguing the Colgate, the respondent.

Wednesday, November 19, 2014

For Monday

Opinions are due at the beginning of class on Monday (don't be late). Please follow all the instructions on formatting, etc.

We will finish the semester by discussing congressional control over the structure of the federal judiciary. What might that control entail? Consider the validity and wisdom of FDR's "Court-Packing" plan; proposals to break-up the Ninth Circuit; the Carrington Plan on SCOTUS tenure, and the Cameras in the Courtroom Act. What are the benefits and drawbacks to life tenure? What are the alternatives?

Tuesday, November 18, 2014

Oral Arguments

Here is the  Schedule for Oral Arguments.

Here is the Standing Order for Oral Arguments.

Review both in preparation for oral arguments on Wednesday, December 17.

This link contains the arguments from my Civil Rights class from fall 2013.

Finally, this page on has a list of cases from the last SCOTUS term; by clicking on a case, you can access the audio. I suggest listening to some cases to hear what both litigants and justices should sound like in these arguments.

Monday, November 17, 2014

For Wednesday

Colorado River Commentary here. Decide a Case commentaries are due, along with your papers, at the beginning of class next Monday.

We will continue with Congressional Control. What is the argument for the traditional view that Congress has plenary authority over SCOTUS appellate jurisdiction? What are the arguments against that view? Look at the various pieces of legislation and proposals assigned and think about their validity, in light of everything we have discussed.

Please be sure to review the Course Evaluation Information sheet (on the Blog) and follow all the requirements in terms of style, format, etc., for your paper.

Thursday, November 13, 2014

Marriage equality and Fed Courts

It's a week old, but here is last week's decision by a district court enjoining Kansas's SSM ban. It covers every abstention doctrine we discussed in class, as well as standing, Ex Parte Young, and Atlantic Coast Line, and does a pretty nice job. It is worth noting that many of the arguments by the government are arguably frivolous, or at least reflect their lawyers were not paying attention in class. For example, the government argued that § 2283 applies even though this is a § 1983 constitutional claim, then argued that even if the statute doesn't apply, its underlying policies prohibit the injunction--which is, of course, the same thing as Younger.

Wednesday, November 12, 2014

More commentaries

On Younger here and here. On Pullman here. On justiciability here and here.

Have at it.

For Monday

Colorado River Commentaries are due start of class Monday.

We begin with the potential Klein problems in the FISA Amendments Act and in the Teri Schiavo Law.

We then turn to the final two sections and Congress's power to control the jurisdiction and structure of the federal judiciary. What would such a power entail? How broad is that power? Are the sample laws valid? Again, this is theoretical stuff; we don't know because Congress hasn't actually pushed its power. But try to think these problems through in light of general principles of constitutional text and the principles we've been discussing throughout the class. Also, what is the significance of the distinction between "Stupid" and "Unconstitutional"?

Finally, have a look at this district court opinion invalidating South Carolina's ban on same-sex marriage. There is some good Fed Courts stuff in the first half of the opinion--including 1) arguments over the Eleventh Amendment and the proper "responsible executive officer" in an Ex Parte Young action; 2) arguments about Younger and Rooker-Feldman, which the court easily swept aside for reasons you should understand; and 3) arguments about the "first-to-file" rule (that one federal district court stays its hand in deference to parallel litigation by another federal district court).

Note that the court's decision to dismiss the claim against the governor on Eleventh Amendment grounds because she not the responsible executive officer is in conflict with the typical approach to the "wrong defendant" in a Young claim, which typically relies on lack of standing.

Monday, November 10, 2014

For Wednesday

Younger commentaries due on Wednesday; Colorado River commentaries due next Monday. I need to know who represents which side in Mauze & Bagby.

We will continue with Klein and its three possible meanings. If Congress cannot tell a court how to decide a case, how does that principle interact with the power of Congress to change statutory law? Consider, as part of this, the Constitution Restoration Act (proposed, never enacted), which would prohibit courts from applying foreign and international law in interpreting the Constitution. Is this valid? What if Congress prohibited courts from using foreign/international law in interpreting federal statutes? After we discuss Plaut, we will consider the validity of the Schiavo law and the two statutes on the blog under Plaut and Klein.

We then turn to Limited Federal Jurisdiction and the power of Congress to "strip" federal courts of jurisdiction. Note the various positions in the scholarly debate. What does the power to control jurisdiction entail? What does the power to control the structure of the federal courts entail?