Thursday, October 19, 2017

Climate Change and Federal Courts

Following class on Wednesday, Shannon asked about standing to challenge climate change and the government's failures with respect to that. Prof. Robbins' Environmental Law class on Thursday addressed that issue, discussing the litigation in Juliana v. United States, in which a district court denied dismissal of a lawsuit challenging government failure to stop and exacerbation of climate change.
Here is a web site tracking the litigation, including a list of major filings.

For our purposes, check out:
• The order denying the government's motion to dismiss for lack of standing (discussion begins at p. 18) and for failure to state a claim. Note how the court deals with the argument that this is a generalized grievance, pointing that the fact that an injury is widely shared does not make it generalized; a generalized grievance must be widely shared and abstract, not where the plaintiff can point to unique, concrete, and particularized injuries they suffered. Note also the discussion of imminence of the injury-in-fact and the other elements. (This would be a good possible topic for a Commentary on Standing).
• The plaintiffs raised Fifth Amendment Substantive Due Process claims; the opinion touched on some issues we explore in Civil Rights, for those of you who continue to that class.
• The Magistrate took the first pass at this, so there also is discussion of the standard of review of a Magistrate's R&R.
Order denying certification of interlocutory review under § 1292(b), although without much analysis.
Notice of substitution of parties replacing President Obama with President Trump.
Government's Petition for Writ of Mandamus in the Ninth Circuit, captioned as United States v. United States District Court for the District of Oregon. The Ninth Circuit ordered briefing on the petition and that is where we stand.

Wednesday, October 18, 2017

For Monday

Wednesday audio.

We continue with Standing and the dissent in Winn; what is the argument that there should be standing because the economic effect is the same as with an expenditure. Justice Kagan presented two hypos; for each, consider how government might achieve the (arguably unconstitutional) goal, whether there could be taxpayer standing, and whether any distinctions between the methods make sense: 1) Government wants to give a $ 500 reward to all Jewish people; 2) Government wants to subsidize the purchase of crucifixes.

We then move to Third-Party Standing. What is necessary for 3d-party standing? Why is it not first-party standing? Does this doctrine make sense? We will consider the following cases (several of which are discussed in the reading) and whether there is third-party standing in each and why:
 • Singleton: Drs. challenge state law prohibiting use of Medicaid funds for abortion
 • Whole Woman's Health: Clinics challenge state laws requiring clinics performing abortions to have all facilities of mobile surgical center
 • Eisenstadt: Individual prosecuted for distributing literature about contraception in violation of law
 • Kowalski: Attorneys challenge state law eliminating mandatory counsel on appeal in certain cases
 • JEB: Convicted D challenges Prosecutor's use of gender-discriminatory peremptory challenges
 • Barrow: White homeowner sued to stop sale to African-American buyer, challenges restrictive covenant prohibiting sale of homes to African-Americans
 • Craig: Bartender challenges state law imposing higher drinking age for me
 • Political campaign: Challenges restrictions on voting

Then move to Legislative Standing and Standing to Appeal and Defend.

Patent counterclaims, exclusive jurisdiction, and the W/P/C

I think everyone is getting confused about what happens with patent counterclaims when they are asserted but cannot form the basis for removal. Prior to 2011, it was theoretically possible that a state court might be able to exercise jurisdiction over a compulsory patent counterclaim (although the court could have held that the counterclaim was not compulsory, because it lacked jurisdiction). But the statutes were vague enough that there was confusion. In 2011, Congress enacted the America Invents Act, which eliminated even this theoretical possibility in two respects.

Section 1338 (which we have studied) makes clear that a state court cannot exercise jurisdiction over a patent claim. So if a defendant brought a patent counterclaim but it could not form the basis for removal, the state court must dismiss the counterclaim for lack of subject matter jurisdiction, which is clear from the new text. So not allowing removal based on the counterclaim does not undermine the federal interest in exclusive federal jurisdiction over patent claims, because the state court is not going to hear the patent claim. What it does undermine, perhaps, is the interest in broad joinder of parties, because it would require the patent issue to be separated from the state law claims; the state claims are in state court and the patent claim, although perhaps transactionally related, must be brought as a separate action in federal court.

But event that is not a problem because of § 1454 (which we did not look at), which allows for removal when "any party" asserts a patent claim (or a plant-variety-protection claim or copyright claim), with removal by "any party." So now, the defendant can assert that patent counterclaim and either party can use that as the basis for removal. And the fact that the basis for removal was a claim over which the state court would not have had jurisdiction does not matter. The federal court can hear the remaining claims, as it would under § 1367 supplemental jurisdiction. So § 1454 ensures that these claims can be brought together.
Reacting to the well-pleaded complaint rule & patent counterclaim dilemma:

When Congress wants to allow courts to "look under the hood" to determine if an action involves a federal question, it can establish that authority. It did so with regards to arbitration. In 9 U.S.C. § 205, courts are directed that "the ground for removal [for arbitration actions] need not appear on the face of the complaint but may be shown in the petition for removal." This gives the court broad discretion to examine the notice of removal and any attached documents to determine if the action involves a federal question related to arbitration.

So Congress could amend or add the law regarding patents, allowing courts to exercise jurisdiction over patent counterclaims. Why does it not? Perhaps docket control; but if at least one purpose for exclusive jurisdiction over patent law is that we want uniformity in application of the laws and do not want states creating a lot of other confusing decisions, then continuing to allow states to handle patent counterclaims simply because we want to make it easier on the Federal court system seems like a bad trade-off.

Monday, October 16, 2017

District Court Commentaries

Here, here, here, and here.

Two additions. First, one your colleagues wrote about the case of the NFL running back who appealed his suspension, with the Fifth Circuit holding that there was no jurisdictional, arguably an example of a court confusing subject-matter jurisdiction with other issues in the case.

Second, a lot of you are still referring to federal courts by the wrong names, confusing district and circuit, names and numbers, etc. Recall the map of the federal judiciary I posted at the beginning of the semester.

For Wednesday

Monday audio--I, II. Apologies for finishing 15 minutes early; we will make that up 5 minutes at a time on Wednesday and next week. 11th Amendment Commentaries due next Monday.

We continue with Constitutional and Statutory Standing. How do citizen suits relate to the problem of generalized grievances? Why is an "informational injury" (as under FOIA) not a generalized grievance? If standing is not about pure separation of powers (because the Court is somewhat stepping on Congress' toes), what other ideas might justify it, as part of what we want or expect from "cases or controversies"? How did Lexmark change the understanding of the "Zone of Interest" test?

Then move to Taxpayer Standing. Why doesn't taxpayer status ordinarily accord standing? Why are Establishment Clause cases different and how? Look at the discussions of Winn and Hein to see how this doctrine applies and has been narrowed.

Then move to Third-Party Standing. Why limit third-party standing? When will third-party standing be allowed? What is the difference between an injury and a right and how does that explain third-party standing?

Friday, October 13, 2017

Oral Argument in ATS Case

Here is the oral argument in Jesner v. Arab Bank, on whether corporations can be sued under the cause of action under the Alien Tort Statute.

By the way, oral arguments of all cases for this Term (and past terms) can be found at You should listen to some cases there to get a sense of what your oral arguments should sound like for the end of the semester.

Thursday, October 12, 2017

Air Force Court of Criminal Appeals Oral Arguments

At noon on Tuesday, October 24, the College of Law will host oral arguments of the Air Force Court of Criminal Appeals in United States v. Swafford. You can download the appellant brief and government brief; the main claim is the defendant was denied effective assistance of counsel in his marijuana-possession prosecution.

This is a military court and the first appellate court to review courts martial; review is in the non-Article III United States Court of Appeals for the Armed Forces, with certiorari review in SCOTUS.

Attendance point will be awarded for attendance.

Wednesday, October 11, 2017

For Monday

Wednesday audio. District Court Commentaries due at the beginning of class.

Remember that we are doubling-up on Monday as our advance make-up for the day before Thanksgiving; we will go until 12, take a 15-minute break, then go from 12:15 to 1:30. We then have one additional make-up (date TBD) for our missed day last Wednesday.

The lateness and absenteeism ends now. We have had all 13 in one room one time this semester and have never had all 13 in one room at 10:45. I expect to see 13 people in the room at 10:45 for the rest of this semester or I expect to hear a good reason why.

Because it is a double session, we will finish Eleventh Amendment. Review the discussions of Ex Parte Young and the role the Eleventh Amendment played in that case. How does a Young action as an Eleventh Amendment exception comport with the idea that "The King Can Do No Wrong"?  Young is derided as a legal fiction--what is fictitious about it? And in what ways is Young not a legal fiction, but perfectly consistent with historic uses and purposes of equity and sovereign immunity? What is a prospective remedy and what is a retroactive remedy? Eleventh Amendment Commentaries will be due on Monday, October 20.

We then turn to the first of our justiciability doctrines, Standing, covering the first section (Constitutional and Statutory). What are the elements of standing? What are the purpose(s) of standing and do they justify the doctrine? What power does Congress have and why?

Do not let this happen to you

Not exactly this course, but an illustration of the importance of looking at and knowing the rules. This is from Tuesday's Supreme Court argument in Hamer v. NHSC, which considers how to handle an appeal that was filed late because the district court gave the appellant an unlawfully long extension of time to file. NHSC, which prevailed in the district court, did not object when the judge gave Hamer too much extra time; Justice Ginsburg wanted to know why and the following exchange occurred:
MR. STEWART: And, again, so we were not -- we were not given the opportunity to -to look at the rules. We didn't have an opportunity to respond
JUSTICE GINSBURG: You didn't have an opportunity to look at the rules?
You cannot hear tone of voice from the transcript; we will have to wait for the transcript to be released on Friday. But Ginsburg's incredulity comes through in the text. You always, she seems to say, have an opportunity to look at the rules.

Tuesday, October 10, 2017

SCOTUS activity

The Supreme Court added two original jurisdiction cases to the docket for OT 2017--Florida v. Georgia and Texas v. New Mexico. They probably won't be argued before the class ends, but something to watch. The question presented in Florida is whether "Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region." Texas is a dispute over the Rio Grande Compact and Rio Grande Project Act and apportionment of Rio Grande waters.