Monday, September 18, 2017

Argument/Opinion Cases

Order of the Court here.

Andrew will be the extra judge.

Note that there are 12 cases--seven that we will argue and an extra five that you can write the opinion. You cannot write on either the case you are arguing or the case(s) you are judging.

Review the instructions for the arguments and opinions. I will answer questions at the beginning of class on Wednesday.

SCOTUS Commentaries

Here and here.

Have at it.

For Wednesday

Monday audio. Court of Appeals Commentaries due next Monday, September 25. Check your availability for arguments on Friday, December 15 or Sunday, December 17. Also, consider Sunday December 10, if that is not too close to an exam.

We continue with District Courts, moving to Arising Under: "Arising Under." What is the third way of granting district courts jurisdiction and what are some examples? Review the sections on removal and map out the removal process. What does "arising under" mean under Mims/Holmes and under Grable? Is there a distinction between "brought under" and "arising under"? Should there be?  What about between "arising under" and "brought to enforce this statute"? What are the rules governing exclusive jurisdiction for district courts? What is the difference between a merits issue and a jurisdictional issue, as in Morrison?

Thursday, September 14, 2017

For Monday: A Quick Review

I hope everyone is back home with power and A/C. Since it has been two weeks since we met, here is a quick reminder of where we left off and where we are going next.

SCOTUS Commentaries are due on Monday.

We are still talking about the jurisdiction of the courts of appeals, which we will finish on Monday (Commentaries for this will be due on Monday, September 25).

We left with our antitrust hypo: A brought only federal antitrust claims and B brought federal antitrust claims and some additional state law claims; the district court decided that neither plaintiff had pled a viable antitrust claim. Can either or both appeal now and what must/can each do?

We then move on to Writs of Mandamus as a method obtaining review. Below (again) is the material on writs of mandamus (28 U.S.C. § 1651), to review.

An additional, but difficult to establish, mechanism for seeking immediate review of a non-final order is to seek a writ of mandamus (see 28 U.S.C. § 1651) from the court of appeals, ordering the district court to follow its legal obligations. The Supreme Court said the following about mandamus in Mohawk Industries:

[I]n extraordinary circumstances—i.e., when a disclosure order "amount[s] to a judicial usurpation of power or a clear abuse of discretion," or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. While these discretionary review mechanisms do not provide relief in every case, they serve as useful "safety valve[s]" for promptly correcting serious errors.
The Seventh Circuit looks for three things in deciding whether to grant mandamus:
First, the party seeking the writ must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without the writ it will suffer irreparable harm. Second the party seeking the writ must demonstrate a clear right to the writ. Third, the issuing court must be satisfied that issuing the writ is otherwise appropriate.
Spend a minute to think about the process for seeking mandamus.

Consider the following hypo (based on Gulfstream, discussed in a footnote of Chemerinsky p. 745) as a review of the court-of-appeals materials. Can A get immediate review of the decision, using any of the appellate methods we have discussed?
A sues X in state court for breach of contract; X does not remove, but answers and raises some counterclaims in state court. X then sues A in federal court (the parties are diverse) for breach of the same contract. In federal court, A moves to dismiss or stay the federal proceeding in deference to the state proceeding (under what is called Colorado River Abstention); the district court denies the motion and insists that the federal case continue as parallel legislation.

Then move to District Courts. Read Overview, Removal, and Arising Under Jurisdiction: Arising Under. In addition to the cases listed, be ready to discuss Mottley (in both the Chemerinsky and Pfander readings). Work through and understand all the assigned statutes and how original jurisdiction and removal work as processes. What does it mean for a case to "arise under" federal law? Also, think (again) about our jurisdictional pairs: Original/Appellate, Exclusive/Concurrent. This is Panel III (Sam, Rachel, Simone, and Yusef).

Thursday, August 31, 2017

Oral Arguments

We have an odd # of people in the class, so I need one person to double-up as a judge. If you would like to judge a second case (you will be evaluated only on one), email me.

Wednesday, August 30, 2017

For Wednesday

Wednesday audio.  SCOTUS Commentaries due on Wednesday. We will finish Courts of Appeals; commentaries will be due the following Wednesday, September 13.

Also, I hope to have the list of opinion/argument cases for you by next Wednesday.

We begin with our antitrust hypo: Can A or B appeal now and what must each do?

Then move to District Courts. Read Overview, Removal, and Arising Under Jurisdiction: Arising Under. In addition to the cases listed, be ready to discuss Mottley (in both the Chemerinsky and Pfander readings). Work through and understand all the assigned statutes and how original jurisdiction and removal work as processes. What does it mean for a case to "arise under" federal law? Also, think (again) about our jurisdictional pairs: Original/Appellate, Exclusive/Concurrent.

Below (again) is the material on Mandamus:

Review the following on writs of mandamus (28 U.S.C. § 1651).

An additional, but difficult to establish, mechanism for seeking immediate review of a non-final order is to seek a writ of mandamus (see 28 U.S.C. § 1651) from the court of appeals, ordering the district court to follow its legal obligations. The Supreme Court said the following about mandamus in Mohawk Industries:
[I]n extraordinary circumstances—i.e., when a disclosure order "amount[s] to a judicial usurpation of power or a clear abuse of discretion," or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. While these discretionary review mechanisms do not provide relief in every case, they serve as useful "safety valve[s]" for promptly correcting serious errors.

The Seventh Circuit looks for three things in deciding whether to grant mandamus:

First, the party seeking the writ must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without the writ it will suffer irreparable harm. Second the party seeking the writ must demonstrate a clear right to the writ. Third, the issuing court must be satisfied that issuing the writ is otherwise appropriate.
Spend a minute to think about the process for seeking mandamus.

Consider the following hypo (based on Gulfstream, discussed at Chemerinsky p. 745) as a review of the court-of-appeals materials:
A sues X in state court for breach of contract; X does not remove, but answers and raises some counterclaims in state court. X then sues A in federal court (the parties are diverse) for breach of the same contract. In federal court, A moves to dismiss or stay the federal proceeding in deference to the state proceeding (under what is called Colorado River Abstention); the district court denies the motion and insists that the federal case continue as parallel legislation.
Can A get immediate review of the decision, using any of the appellate methods we have discussed?


Monday, August 28, 2017

For Wednesday

Monday audio. SCOTUS Commentaries due on Wednesday, September 6.

We continue with Courts of Appeals, both sections. Pick up where we left off: How does the Will distinction--right to stand trial simpliciter (not sufficient) v. right not to stand trial where the denial of appeal would imperil substantial public interest--explain the areas in which C/O/D has been held to apply: Denial of Double Jeopardy, denial of official immunity (e.g., qualified immunity), denial of state, foreign, and U.S. sovereign immunity, and denial of a SLAPP motion to dismiss. Think about the policies underlying each of those defenses and why immediate review makes sense. Then consider the second prong: Aren't all defenses (such as attorney-client privilege) "important issues"? How can the court narrow that?

Move on to Interlocutory Orders and the various statutory provisions. Review the following on writs of mandamus (28 U.S.C. § 1651).

An additional, but difficult to establish, mechanism for seeking immediate review of a non-final order is to seek a writ of mandamus (see 28 U.S.C. § 1651) from the court of appeals, ordering the district court to follow its legal obligations. The Supreme Court said the following about mandamus in Mohawk Industries:
[I]n extraordinary circumstances—i.e., when a disclosure order "amount[s] to a judicial usurpation of power or a clear abuse of discretion," or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. While these discretionary review mechanisms do not provide relief in every case, they serve as useful "safety valve[s]" for promptly correcting serious errors.

The Seventh Circuit looks for three things in deciding whether to grant mandamus:

First, the party seeking the writ must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without the writ it will suffer irreparable harm. Second the party seeking the writ must demonstrate a clear right to the writ. Third, the issuing court must be satisfied that issuing the writ is otherwise appropriate.
Spend a minute to think about the process for seeking mandamus.

For class (probably on Wednesday), consider the following hypo (based on Gulfstream, discussed at Chemerinsky p. 745) as a review of the material:
A sues X in state court for breach of contract; X does not remove, but answers and raises some counterclaims in state court. X then sues A in federal court (the parties are diverse) for breach of the same contract. In federal court, A moves to dismiss or stay the federal proceeding in deference to the state proceeding (under what is called Colorado River Abstention); the district court denies the motion and insists that the federal case continue as parallel legislation.
Can A get immediate review of the decision, using any of the appellate methods we have discussed?

Thursday, August 24, 2017

The emptiness of "judicial activism"

This is a regular feature in Slate, a moderated conversation between Judge Richard Posner of the Seventh Circuit (up there with Learned Hand as the greatest federal judge not to sit on SCOTUS) and Jed Rakoff of the Southern District of New York. Note how both judges resist the term "judicial activism" (which the moderator, citing Wikipedia (which you should never do), defines as "judicial rulings that are suspected of being based on personal or political considerations, rather than on existing law." Law is indeterminate, fluid, and changeable--there is no such as a ruling based on "existing law," because existing law changes. And "person and political considerations" are built into the process of common law decisionmaking, in which courts (especially SCOTUS or a court of appeals) decides a case but also makes prospective law.

Additional Material on Courts of Appeals

This is the additional material for Courts of Appeals: Interlocutory Review. Neither Chemerinsky nor Pfander discusses this, so I include a brief summary.

An additional, but difficult to establish, mechanism for seeking immediate review of a non-final order is to seek a writ of mandamus (see 28 U.S.C. § 1651) from the court of appeals, ordering the district court to follow its legal obligations. The Supreme Court said the following about mandamus in Mohawk Industries:

[I]n extraordinary circumstances—i.e., when a disclosure order "amount[s] to a judicial usurpation of power or a clear abuse of discretion," or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus. While these discretionary review mechanisms do not provide relief in every case, they serve as useful "safety valve[s]" for promptly correcting serious errors.

The Seventh Circuit looks for three things in deciding whether to grant mandamus:

First, the party seeking the writ must demonstrate that the challenged order is not effectively reviewable at the end of the case, that is, without the writ it will suffer irreparable harm. Second the party seeking the writ must demonstrate a clear right to the writ. Third, the issuing court must be satisfied that issuing the writ is otherwise appropriate.
Spend a minute to think about the process for seeking mandamus.

For class (probably on Wednesday), consider the following hypo as a review of the material:
A sues X in state court for breach of contract; X does not remove, but answers and raises some counterclaims in state court. X then sues A in federal court (the parties are diverse) for breach of the same contract. In federal court, A moves to dismiss or stay the federal proceeding in deference to the state proceeding (under what is called Colorado River Abstention); the district court denies the motion and insists that the federal case continue as parallel legislation.
Can A get immediate review of the decision, using any of the means we have discussed?

Wednesday, August 23, 2017

For Monday

Wednesday audio.

We will finish our discussion of SCOTUS Jurisdiction with Camreta v. Greene and winners' petitions.

Some background (to save class time): § 1983 (on. p.1101 in Appendix B of Chemerinsky) creates a cause of action for suing for violations of constitutional rights by state and local officials (such as the police officers in Camreta); § 1983 is the vehicle for suing and the claim requires the plaintiff to prove her rights were violated. The Court has imposed on § 1983 an affirmative defense of qualified immunity--the officer is not liable, even if the plaintiff's rights were violated, unless the right was "clearly establish" such that a reasonable officer would have known that what he did violated the Constitution. Courts apply a two-step approach: First ask if the plaintiff's rights were violated; if they were, the court then asks whether the right was clearly established.

We then move to both sections of Jurisdiction of Federal Courts of Appeals. Read the various rules and statutes carefully; think about which statute applies, when, and the procedure underlying it. I will post an additional excerpt on Mandamus later today.