Friday, December 8, 2017

Friday, December 1, 2017

Cert granted in Salt River

SCOTUS granted cert in Salt River Project v. SolarCity, on the question "Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine." Although there will not be merits briefing in time,  you may look at the cert petition and brief-in-opposition in prepping for argument.

Wednesday, November 29, 2017

Final Class


Arguments begin at 10 a.m. on Monday, November 18. We will go until early afternoon, with a break for lunch (provided). Be sure to review the Standing Order on how arguments work, the Chief script, etc. Do yourself a favor and listen to some arguments to get a sense of what this should sound like.

Congressional Control Commentaries due to Donna Yff ( by noon on Friday, December 8 (you are, of course, welcome to turn it in sooner).

Thanks for a fun semester--this is the first time in several years we have gotten to the jurisdiction-stripping materials.

Tuesday, November 28, 2017

Reaction to Rooker-Feldman Paper

Rooker-Feldman does still serve a purpose, because it addresses the situation when a losing party of a state court decision states that the state court's judgment itself is the source of a new constitutional injury.

Because in that context the injury is new--it did not come into being until the state court's judgment--it is thus a new dispute, and falls within a district court's original jurisdiction under § 1331.

The RFD prevents this situation. Because although framing the injury that way may be a new dispute, the effect of the district court's hearing of that dispute may be to overturn a final state court decision. So, in effect, the district court was acting as a reviewing court, which SCOTUS said is not within any district courts jurisdictional grant.

What the RFD does is classify certain types of cases as not "new" and original if they potentially will overturn a final state court decision. The RFD places such cases outside of original jurisdiction. It fills a gap left between § 1331 and § 1257 based on Congress's intent to have SCOTUS be the federal reviewing court of state court decisions and principles of federalism and comity.

Monday, November 27, 2017

Here is an interesting article about the proposal for the repeal of the outdated "Savings Clause" of the Florida Constitution. If enacted, new criminal statutes will be permitted to apply retroactively so long as the Florida Legislature makes that clear in the language of the statute. This can have significant implications in the always changing realm of Florida criminal law.

Younger and Abstention Commentaries

Here, here, here, here, and here.

For Wednesday

Monday audio.

We continue with Congressional Control. We will begin with the question we left on--Does the existence of SCOTUS appellate jurisdiction necessarily suggest there would be (or must be) inferior federal courts? Review the scholarly debate over jurisdiction-stripping, considering: the "Orthodox" position, the "mandatory jurisdiction" position, the "essential functions" position, and Pfander's argument from supremacy and inferiority? What do these theories tell us about the scope or limits of Congress' power? What does the text of Article III tell us? Is the Pledge Protection Act constitutional? What about the statute requiring the Court to televise arguments?

What are the arguments for and against the Congressional Responsibility for Judicial Activism Act? How does this fit in the judicial supremacy/departmentalism debate?

Consider the validity and wisdom of the proposals to change the size or organization of SCOTUS--consider both the Proposal on Life Tenure and Segall's Eight Justices are Enough, which is now on the blog.

One quick reminder: Course Evaluations (now called S.P.O.T.S.) are now entirely online. Please take the time to complete these (you should have received an email explaining how).

Sunday, November 26, 2017

Who is the head of the CFPB? The Fed Courts angle (Update)

For those of you following the current political situation in which there are two purported acting directors of the Consumer Financial Protection Bureau (one appointed by the outgoing director pursuant to the CFPB statute, the other appointed by the President pursuant to a different statute), your thoughts immediately should have turned to the question of how this could be litigated and resolved in court.

• One possibility is that someone affected  by a CFPB action would challenge the validity of the action based on who approved the action (this is how the Line Item Veto Act ultimately was challenged). That could take some time. Meanwhile, the office would be in chaos.

Another possibility is for one of them to sue to recover salary or other benefits owed or for one to fire the other, creating standing. But that, too, may take too long. It also would leave the agency under cloud.

• A third, more interesting, and more immediate option is a quo warranto action. Quo warranto (literally meaning "by what warrant") is an old prerogative writ that tests whether someone has the power they purport to have, including determining which of competing officerholders properly hold that office. At the federal level, only the AG or US Attorney for the District of the District of Columbia can initiate such an action, which allows determination of competing claims without having to wait for someone to suffer a standing-providing injury. A private person cannot initiate a quo warranto action, although one of the birther plaintiffs tried.

Update: Here is the lawsuit Leandra English, the person appointed by the outgoing director, filed on Sunday. She seeks a declaratory judgment that she is the Acting Director, with the President and the President's appointee as defendants; she also cites the All Writs Act and the statute giving district courts jurisdiction over mandamus actions.

Monday, November 20, 2017

2283 Commentary


Argument Schedule

As discussion, Arguments will be held on Monday, December 18. Here is the Schedule of Arguments. Here is the Standing Order on Procedure for Oral Argument (this includes the "Script" for the Chief Justice).

For Monday

Monday audio.

We continue with When Does Congress Decide. What does Plaut stand for and how is it distinct from the principles in Klein? What do you suppose "legislative equity" might mean and how is it different from the system that Article III establishes? Is the PLCAA problematic under Plaut? What about FRCP 60(b)(5) and (6), which allow for reopening of judgments?

Here is the text of the Theresa Schiavo Law; please review and bring to class.

Finish the Syllabus, covering Limiting Federal Jurisdiction and Controlling the Structure of Federal Courts. The focus of the first is the longstanding and ongoing theoretical debate over jurisdiction-stripping and the power of Congress to control jurisdiction (both treatises do a good job of explaining the different positions that scholars have taken). The focus of the second is control over the structure of the courts. Download and bring with you the various proposed statutes and other ideas for controlling the jurisdiction or organization of the courts.

Finally, one more short reading: Eric Segall's Eight Justices are Enough. Prof. Segall first floated this idea shortly after the death of Justice Scalia, before everything else happened--the nomination of Merrick Garland, the Senate refusal to hold a hearing, and the nomination and confirmation of Justice Gorsuch. This is two pages of a longer essay (which can be found here and here, for those who are interested). We will not get to this until Wednesday.