Wednesday, October 19, 2016

Delay in Washington Football Team Appeal

I previously mentioned that the Washington Professional Football Team had unsuccessfully tried to skip the Fourth Circuit and proceed directly to SCOTUS on its First Amendment challenge to the cancellation of its trademark as disparaging; it was hoping to have its case consolidated with another case raising the same issue that SCOTUS will decide this Term. Stuck in the Fourth Circuit, the Team successfully moved to postpone oral argument (originally slated for November) pending the outcome in the similar SCOTUS case.

Again, pay attention to how it is more complicated than SCOTUS takes cases, makes decisions, and provides uniformity. SCOTUS picks the cases it wants to hear as the vehicle for resolving legal issues. But in the meantime, other cases are pending in the lower courts, which must manage their dockets and their decisionmaking with an eye towards what is happening elsewhere.

For Monday

Wednesday audio.

We continue with Third-Party Standing, focusing on associational standing and overbreadth. Think about the difference between associational standing and third-party standing. Think about the difference between first-party and third-party standing in a case such as Whole Woman's--might the clinic be able to have standing in its own right? Might an organization have standing on its own, apart from that of its members? How can you tell?

We then turn to the last parts of Standing--Legislative Standing and Standing to Appeal. Read Arizona--what distinctions does the Court draw among this case, Raines, and Coleman? Do those distinctions make sense? Why was there standing to appeal in Windsor but not Hollingsworth?

Finally, we should get to Ripeness, so prepare that section. Amber, Matthew, and Melanie are on panel. What was ripeness supposed to be about? How has ripeness come to overlap with standing?

Tuesday, October 18, 2016

Monday, October 17, 2016

For Wednesday

Monday audio. Remember that we will do a shortened class next Monday, as well.

We continue with Prudential Standing, then move to Taxpayer Standing and Third-Party Standing. Note that you only need to read the introduction and the standing discussion in Justice Thomas' Whole Women's Health dissent.
   • How does Lexmark change our understanding of Zone of Interest and why?
   • Why is taxpayer status not sufficient for standing? Why is the Establishment Clause an exception to this? Read the history of this doctrine in Winn. Do the distinctions drawn as to when there will or will not be taxpayer standing make sense?
   • Think about the similarities and differences among third-party standing, the standing of an organization to sue on behalf of its members, and the standing of an association to sue on its own. Be sure to bring a copy of FDC v. Scott with you to class.
   • Look at the various third-party standing cases. Does it make sense to allow standing in these cases?
   • Is Justice Thomas right about third-party standing in reproductive-rights cases?

Saturday, October 15, 2016

Defamation, Declaratory Judgments, and the Election

I am ashamed that I did not come up with this one on my own; it was suggested by a colleague via email. Note that it touches on the election, but does not depend on any particular views about candidates, the election, or the dispute.

As you all should know, Donald Trump has threatened to sue The New York Times over its initial story about a woman accusing him of sexual assault. (No matter your political views, you should recognize the gutsy lawyering underlying the paper's response to a cease-and-desist letter). As we know, one common use of the Declaratory Judgment Act is for a potential civil defendant to file first, seeking a declaration that his conduct did not violate the law. So, it was suggested, perhaps The Times should do that here--sue for a declaratory judgment that its article is constitutionally protected and thus it cannot be liable. While unusual in defamation cases (most newspapers want to avoid litigation, not prompt it), The Times might gain three benefits here: 1) It forces Trump to renounce any intention to sue (we will touch on this more when we get to Ripeness); 2) It triggers discovery; and 3) As the plaintiff, it goes first in making arguments.

Might this be a sensible strategy for the paper? Could it bring such an action in federal court? (The Times is a New York corporation with its principal place of business in New York; Trump is a New York citizen).

Monday, October 10, 2016

FDC v. Scott

The best time to take Federal Courts is during a presidential election, because things are always cropping up.

A district judge in the Northern District of Florida granted a temporary restraining order requiring Florida to extend the deadline for voter registration in light of Hurricane Matthew and the many people forced to leave the state due to the storm. A TRO is an ex parte order, issued prior to service on the defendant, and the first step in injunctive relief; it freezes the status quo until the defendant can be served and an adversarial hearing can be held. As you will see, the TRO lasts until Wednesday, when there will be an adversary hearing. (We will discuss the details of injunctive relief when we get to abstention).

For our purposes, look at Part I of the opinion, on two preliminary matters: 1) The standing of the Florida Democratic Party to sue on behalf of voters--we will discuss associational standing as part of third-party standing, so bring this case with you to class next Monday; 2) the proper defendants in this Ex Parte Young action--plaintiffs named Gov. Scott and Sec. of State Detzner.

Again, bring this to class with you on Monday.

For Monday

Eleventh Amendment Commentaries due at the beginning of class.

We continue with Standing, picking up with statutory standing and prudential standing, then proceeding to Taxpayer Standing and Third-Party Standing. Consider
   • Besides Separation of Powers, what other ideals might underlie standing?
   • What is an "ideological plaintiff" and how does she fit the standing analysis?
   • How does Lexmark change our understanding of Zone of Interest and why?
   • Why is taxpayer status not sufficient for standing? Why is the Establishment Clause an exception to this? Read the history of this doctrine in Winn.

Thursday, October 6, 2016

Some Fed Courts developments

Always keep an eye on the news--you never know when you will see something course-related. Here are two:

1) SCOTUS denied a cert. petition from the Washington professional football team on the question of whether their nickname is "disparaging" and thus not eligible for trademark protection. The Redskins lost in the district court and tried to go SCOTUS without a court of appeals decision. SCOTUS will hear a different case raising a similar issue this term, while the Washington case remains in the Fourth Circuit (oral argument will be in December). Even if you are not interested in intellectual property, keep an eye on this case as an illustration of a couple things: 1) How SCOTUS manages its docket and the cases it chooses to take or not to resolve particular legal issues; 2) How knowing SCOTUS is about to decide a case affects what lower courts do with cases raising similar issues (proceed as usual? hear argument, but do not decide anything until SCOTUS decides? Wait for SCOTUS and get extra briefing?); and 3) How parties can try to work their own case to get before, or avoid, SCOTUS.

2) SCOTUS refused to hear a mandamus petition, on original jurisdiction, from a New Mexico man seeking to compel Sen. Charles Grassley, Chair of the Senate Judiciary Committee, to hold a hearing on the nomination of Merrick Garland to SCOTUS. Can anyone come up with reasons, based on what we have covered or are covering, why SCOTUS would not touch this case? One reason, that we do not cover in this course (but in Civil Rights) is that members of Congress enjoy absolute immunity from any suit related to their legislative functions.

District Court Commentaries

Here and here.

Wednesday, October 5, 2016

For Monday

Wednesday audio. Remember, no class next Wednesday. So Sovereign Immunity Commentaries will be due on Monday, October 17 at the beginning of class.

Be ready to discuss the first three sections of Standing: Constitutional, Statutory, and Taxpayer. Be sure to print out and bring to class the assigned cases from the blog. Consider:
   • Think about the remaining two constitutional requirements for standing.
   • Why did the plaintiff in Fisher (challenging use of race in admission decisions at University of Texas) have standing? Does it matter that she might not have been admitted?
   • Why was there no standing in Clapper? In Allen?
   • What are the underlying policy justifications for the standing requirement? Do they justify the doctrine? How do you reconcile the focus on separation of powers with the close review of congressionally created standing in Spokeo and Lujan?
   • What is the argument that standing is really a merits question of whether the plaintiff has stated a claim? Consider two cases: 1) Plaintiff claims to be losing sleep out of concern for the homeless problem in the city, which he believes the government is not doing enough to remedy; she sues, claiming the loss of sleep as his injury and seeking an injunction prohibiting enforcement of the current homeless policies; 2) Plaintiff claims to be losing sleep because his neighbor's dog is barking; she sues, seeking an injunction requiring her neighbor to stop the dog from barking all night. Can either plaintiff bring her suit? Why or why not? Does it make sense to think of this in terms of standing (injury-in-fact).
   • Why is taxpayer status not a basis for standing? Why is it different in Establishment Clause cases? Does the distinction make sense? How did the Court divide in Winn?