Friday, September 12, 2014

A-Rod v. MLB Removal

One more thing for Monday's discussion of Complete Preemption: Take a look at the Notice of Removal in Alex Rodriguez's lawsuit against Major League Baseball challenging his suspension for using PEDs; notice how MLB framed this to pull it within the complete preemption doctrine.

Wednesday, September 10, 2014

There are always exceptions . . ..

As we said in class, removal is proper only if the district court would have had original jurisdiction, which triggers the well-pleaded complaint rule. Which means removal ordinarily is not proper based on a defense or claim brought into the case by any other party (counterclaim, cross claim, etc.).

Except, the Western District of Texas tells us, in patent, plant variety, and copyright cases. Under 28 U.S.C. § 1454, which was part of the America Invents Act of 2011, which allows for removal of a case in which "any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights," § 1454(a), and that the action may be removed by "any party." § 1454(b)(1). So in this case, the plaintiff brought a variety of state-law claims in state court; one defendant answered and included a counterclaim for copyright infringement, then removed the case to federal court. The district court declined to remand, saying that § 1454 overrides the well-pleaded complaint rule, at least in patent and copyright cases.

Assuming this is the correct reading of § 1454, why might Congress have wanted broader removal of these cases, as part of a general reform of federal intellectual property law? Note, incidentally, that this is just for purposes of removal. The Well-Pleaded Complaint Rule still controls initial filing, so the plaintiff in that case could not have filed in district court originally.

For Monday

Wednesday audio. Commentaries for Jurisdiction of Courts of Appeals are due on Monday. Remember, panelists, you are expected to be prepared at a 1-L level.

We will continue with District Courts and the expansion of "arising under" jurisdiction beyond the Holmes/Mims core, as discussed in Grable  and Gunn. Why the different outcomes in those cases (and in Empire)?

We then move on to both Complete Preemption and Federal Common Law, which get at the issue of the sources of law under which a claim may arise for § 1331 purposes. What is going on with complete preemption? Note the discussion in the book about the evolution of this doctrine.

Tuesday, September 9, 2014

Case Assignments

Here. There are seven cases. Everyone is assigned one case as justice and one case as counsel. You can write your opinion on any other case. Refer to the Course Evaluation Information sheet at right for more details on the opinion.

Note that there is one case on the list for both this class and Civil Rights. If you are taking both classes, you only may write about the case for one of them.

Monday, September 8, 2014

For Wednesday

Monday audio. If you want to write your Commentary on Courts of Appeals, it is due next Tuesday. Case assignments for oral arguments will be posted on Wednesday morning.

We continue with the introduction and background to District Courts. What are the policy reasons for giving federal courts (and district courts in particular) "arising under" jurisdiction? Given the Well Pleaded Complaint Rule, how do parties get a federal forum in cases such as Mottley (hint: remember the different definitions of "arising under" in § 1331 and Art. III). What are the benefits and defects in the Well Pleaded Complaint Rule? Be ready to discuss the meaning of "arising under," both the minimum "exclusion" meaning in Mims and the broader meaning in Grable and Gunn; why were the outcomes different in those two cases?

Then go ahead onto Complete Preemption, which we may get to by the end of the class.

Friday, September 5, 2014

Judicial activism?

Judge Posner's opinion for the Seventh Circuit invalidating marriage-equality bans in Wisconsin and Indiana. Is this an example of judicial activism (in a good or bad sense)? Does anything strike you about the opinion that makes it more or less susceptible to the activism charge?

Wednesday, September 3, 2014

For Monday

Wednesday audio.

We will continue with Courts of Appeals and the various forms of interlocutory appeals allowed under the statutes and rules; be sure to review all the assigned provisions. We will begin with § 1292(a)--why allow immediate appeals for injunctions? When is § 1292(b) review appropriate? What happens if the district court declines to certify an issue under § 1292(b) when asked?

We then will begin our discussion of District Courts; prepare Overview, Removal (which is a number of statutory provisions to prep), and the first part of "Arising Under". What is the purpose of "arising under" jurisdiction? What does it mean for a claim to "arise under" federal law? Do those definitions make sense? What is the difference between "arising under" for Art. III and § 1331 purposes?

Wednesday, August 27, 2014

For Wednesday

Wednesday audio. Remember, no class on Monday for Labor Day; our next meeting is Wednesday, September 2. For those of you wanting to write on Supreme Court Jurisdiction, your comments are due at the beginning of class.

We will get into both sections of Federal Courts of Appeals; think about what is going on under Collateral Order Doctrine, how it has been limited, and whether the limitations make sense. Does the distinction between "right not to be liable" and "right not to stand trial" make sense? How does Mohawk normalize the doctrine? Ali, Ryan, and Ashley are on panel for this.

We may get into the very preliminary part of Federal District Courts. Read the statutes for Overview and Removal (note those provisions are on the blog). This will start us with a general discussion of how cases get into Federal District Court; we then will pick up after that with what those cases entail. Joe, J.C., Franco, and Ryan are on panel for this.