Wednesday, September 28, 2016

For Wednesday

Wednesday audio. No class Monday. District Court Commentaries due at the beginning of class on Wednesday.

We will continue and finish with 11th Amendment, specifically the role of Ex Parte Young. So Young is described as resting on a legal fiction. But there is an argument that Young reflects ideas inherent in sovereign immunity, given the longstanding availability of anti-suit injunctions. In light of Young, what does the phrase "The King Can Do No Wrong" mean? Look at what Chemerinsky has to say about Edelman and Quern and the "prospective compliance exception;" how do we reconcile Young, the 11th Amendment concerns for the state purse, and the inevitable costs of injunctions? Be sure to review the Complaint and District Court opinion (focusing on 11th Amendment, not abstention) in Tyler v. Commonwealth.

We then move on to Justiciability, beginning with Standing; prepare Constitutional Standing and Statutory Standing, which will overlap. Note the several additional cases from the Blog. What are the policy rationales for standing and do they make sense? What are the elements of standing and what does each mean? Think about why there was or was not standing in each of the assigned cases.

Monday, September 26, 2016

For Wednesday

Monday audio. District Court Commentaries due next Wednesday, October 6.

We continue with Eleventh Amendment/Sovereign Immunity. What is abrogation and how/when/why can Congress abrogate? What does "Plan of the Convention" mean? What do we mean by the "political safeguards of federalism"? What is necessary for Congress to abrogate? How does Ex Parte Young interact with the Eleventh Amendment? Why is it described as a legal fiction and is it? How does Ex Parte Young offer a new meaning for "The King Can Do No Wrong"?

Wednesday, September 21, 2016

Court of Appeals Commentaries

Here and Here. Feel free to respond.

For Monday

Wednesday audio.

On Monday, we continue with and finish Non-Article III, which will end our section on District Courts. District Court Commentaries will be due on Wednesday, October 5 (remember, no class on Monday, October 3). What are the benefits and drawbacks to these specialized non-Article III judges and tribunals? What is lost in terms of judicial independence and how might we overcome that? Why have magistrates and what are they entitled to do? How did we get to the current form of bankruptcy courts and what can bankruptcy courts hear or not. How is power divided between the Article III and non-Article III judge?

This will finish the first part of the course, in which we explored the jurisdiction that all levels of federal courts have been granted. We next turn to judicially created limits on federal jurisdiction, beginning with Eleventh Amendment/Sovereign Immunity. The main focus is on the Chemerinsky reading rather than cases, although review Ex Parte Young and the document assigned on the blog. What does sovereign immunity mean and protect? What does the Eleventh Amendment say, what does it mean, and how does the Court reconcile those two things? Review the history that lead to the enactment and interpretation of the Eleventh Amendment. The phrase associated with the Eleventh Amendment is "The King Can Do No Wrong"--what does that phrase mean (it may have multiple meanings) and how does it explain the whole of sovereign immunity doctrine? What does it mean to "abrogate" sovereign immunity?

Monday, September 19, 2016

Avast yee, ATS plaintiffs

So it turns out that today is International Talk Like a Pirate Day. I wish I had known before our discussion of the ATS.

For Wednesday

Monday audio.

We pick up with Three-Judge Courts as a response to Young. What is the process under § 2284(b), as interpreted in Shapiro--when must a district judge refer a case? How does the three-judge court respond to Young? What is it about the three cases subject to three judges in current § 2284(a) that warrant three-judge courts? Be sure to review § 1253 and its role in this process?

We then turn to Declaratory Judgments, the other response to Young? How does this make sense as a response and why? How does an anticipatory declaratory judgment action fit with the Well-Pleaded Complaint Rule? How is a D/J both more and less intrusive than an injunction? Are there times when a D/J is alone a better remedy than an injunction?

Work the following cases, considering what an enforcement/coercive action would look like and what an anticipatory D/J action would look like:
• Medimmune
A was injured in a car accident w/ B--X is A's insurer and A needs X to defend and cover the claims
• Skelly Oil

Finally, we hopefully will begin Non-Article III Courts, which explores the adjudication that happens outside of Article III courts or within Article III courts but before non-Article III adjudicators. What can bankruptcy courts hear and why? Be able to explain the role and operation of magistrates, both under the statute and in practice.

Wednesday, September 14, 2016

For Monday

Wednesday audio.

We have a few final words on Complete Preemption. What was the district court's preemption analysis in Bollea? Look at Justice Scalia's Beneficial dissent and the discussion of the evolution of this doctrine. Given how it has evolved, does this doctrine make sense? Or is Scalia right that this should be mere dismissal of the state claim and nothing more? Should it matter that Sinclair was overruled?

We then turn to Customary International Law (we are skipping Implied Rights of Act, on which I will lecture briefly). What does § 1350 mean? Where do the majority and concurrence in Sosa depart? Is Kiobel consistent with that meaning of § 1350? How does extraterritoriality affect jurisdiction? What is it under the ATS that does not apply extra-territorially?

We then turn to Three-Judge Courts, which requires first a dive into Ex Parte Young, which is the cornerstone of constitutional litigation in federal court. When is an Ex Parte Young suit permitted and under what circumstances? How was the three-judge district court (first established in 1911) a response to, and limitation on, Young? Be sure to look at the repealed statutes as well as the current version of § 2284. For a sense of the process of three-judge courts, in addition to the statute, read Shapiro v. McManus. Also read Armstrong v. Exceptional Child Care (download from the blog; this was to be part of the reading on implied rights that we are moving to this section).

Tuesday, September 13, 2016

Hearing on complete diversity

The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing today on eliminating the complete-diversity requirement under § 1332. Although we do not spend much time on diversity jurisdiction in this course (since we spent a lot of time on it in Civ Pro), pay special attention to the testimony of Charles Cooper, which previews some arguments about congressional power that we will see later in the semester.

Monday, September 12, 2016

For Wednesday

Monday audio. Courts of Appeals Commentaries due at the beginning of class on Wednesday. Be sure to review the list of argument/opinion cases to see assignments; I will answer any questions at the beginning of class on Wednesday. FWIW, the cases are all heavily weighted to the first half of the semester, so you will not have to read ahead to write the opinion.

We continue with Arising Under. How did the Court apply the Grable test in Grable, Gunn, and Bollea and why? What is the difference, if any, among "arising under," "brought under," and "brought to enforce"?

We then turn to Complete Preemption. What is going on in these cases? How does complete preemption differ from Field and Conflict Preemption (which you covered in Con Law)? Does the doctrine make sense, given its evolution as described in LJB? These cases exist at the intersection of two ideas: "The plaintiff is master of the complaint" and the prohibition on "artful pleading." What do those terms mean and how do they affect this area? Do not forget the extra cases and materials in this section.

We then move on to Customary International Law. What does § 1350 say and what does it mean? How does the understanding of jurisdiction in Kiobel differ from the interpretation in Sosa?