Sunday, December 16, 2018

Tuesday, December 11, 2018

Recent cases of interest

Because Fed Courts law never stops developing:

• The Court last week denied cert in Americulture. This is too bad, because while the collateral-order issue was tangential to the case, there is a major circuit split on application of SLAPP statutes in federal court (we used this as an exam question or a review problem in Civ Pro each of the past two years).

• The First Circuit held that there is a First Amendment right to record government officials in public, even secretly. The decision required the Court to pass through standing and ripeness analysis.

Monday, November 19, 2018

Final Classes

Last day audio--Regular, Make-up.

Reax Papers for Younger, Other Abstention, Decide, and Congressional Control all due when you show up for arguments.

See everyone for Oral Arguments on Thursday, December 13.

Saturday, November 17, 2018

Using Ex Parte Young

Here is a really interesting case showing some of the below-the-surface procedural puzzles created by Ex Parte Young. It also shows creative ways to raise constitutional issues, including directly to SCOTUS without having to pass through lower courts.

For those of you following the news (which you should be doing), there is debate over the statutory and constitutional validity of President Trump's appointment of Matthew Whitaker as acting attorney general. A number of actions have been filed or considered to challenge the appointment, obviously needing to work around standing problems (who has standing to challenge something like this)?

An EPY action is challenging the constitutional validity of the federal law prohibiting felons from possessing firearms; defendants included then-Attorney General Jeff Sessions. The plaintiff lost below and petitioned for cert, naming Sessions (among others) as respondent. Yesterday, the petitioner filed a Motion to Substitute Rod Rosenstein (current Deputy AG) for Sessions as respondent, asking the Court to hear and resolve the succession question and declare that Rosenstein, not Whitaker, is the proper acting AG.

On the other hand, there is a debate on a Civ Pro/Fed Courts list serve about why plaintiffs ever sue the officer by name rather than office. Since the action is against the officer in his official capacity, it is against the office. So why not just sue "Attorney General of the United States" and be done with it? FRCP 17(d) provides that "A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer's name be added."

Wednesday, November 14, 2018

For Monday

Wednesday audio--Morning, Make-up. Reax Papers on Younger, § 2283, and the rest of abstention due when you come for oral arguments.

Double-session (regular time and 12:30-1:45 make-up) on Monday. Opinion papers are due at the beginning of the 12:30 make-up. Be on time.

We will combine our last two sections and panels, which are unified by the question of how much control Congress has over the federal courts. What does "judicial independence" mean and what types of independence are there? What does Klein stand for and how have recent cases (such as Bank Markazi) understood Klein? What is the principle of Plaut? Note the several proposed and passed statutes to download from the blog and consider under these precedents.

Pullman Reax Papers

Here and here.

I am going to make a comment having read both. Both offer creative ideas and arguments. But both make the mistake of confusing the certification/Pullman distinction with the general wisdom (or lack thereof) of the federal court delaying so a state court can resolve ambiguous state-law questions. That is, the question of whether Pullman or certification is the preferable mechanism is separate from the overall wisdom of the federal court sending state-law issues into state court.  That is, if you think giving states more opportunities to decide state-law issues is a good thing (as one paper does), it does not matter whether that is by certification or Pullman.

Thursday, November 8, 2018

Oral Argument Schedule (Corrected) and Standing Order on Procedure

Argument Schedule and Standing Order on Procedure.

I tried as best I could to mix-up the Civil Rights and Fed Courts cases.

Wednesday, November 7, 2018

Due Dates

Because of the tight schedule, here are the due dates for various things:

Pullman Reax Papers: Wednesday, November 14

All final Reaction Papers (Younger, Statutory, Other Abstention): At oral argument (although you can turn it in sooner)

Opinions: 12:30 (start of the make-up class) on Monday, November 19.

For next Wednesday (Both classes)

Wednesday audio. Double session on Wednesday for Fed Courts, at 9-10:15 and 12:30-1:45, both meeting in RDB 2007. Civil Rights should plan on attending the morning session and at least part of the lunchtime session, up to and through our discussion of Rooker-Feldman.

Civil Rights will meet tomorrow (Thursday, November 8) at 1:45.

We continue with Younger. Looking at what Younger covers, how can a federal plaintiff avoid Younger's bar, without having to rely on the exceptions? Consider the following:

Doe, a student at the University of Kentucky, was twice found by a university disciplinary body to have violated the university code of conduct; both decisions were reversed by the university appeals board, which identified constitutional and procedural defects in both proceedings. The disciplinary body scheduled a third hearing.

Doe files a § 1983 action in federal district court, arguing that the code of conduct violates the 14th Amendment and Title IX and seeking an injunction stopping the third hearing and prohibiting the university from enforcing the code of conduct against him.

Fed Courts should then do the remaining abstention doctrines--Colorado River, International Comity, Rooker-Feldman, and "Other." We will begin with Rooker. What is the source of Rooker and its underlying policy? Should it apply only to final state court orders or also to interlocutory orders? What is the difference between Younger and Rooker-Feldman? What about between Rooker and preclusion?

Civil Rights should stay through the Rooker discussion.