Tuesday audio. Panel I reax papers due on Tuesday at the beginning of class. Please follow the guidelines and instructions on the assessment information. Also, here is an updated and corrected syllabus.
We continue with Supreme Court. Review the three Court-reform proposals (even Court, Regulation of Appointments Act, and lottery); be ready to discuss the benefits, drawbacks, and constitutional concerns for each. What textual objections can there be to each.
On the textual point, think about the meaning of four constitutional phrases and how they affect these proposals. We have discussed two of them: "the judicial power" in Art. III § 1 and Congress's necessary-and-proper power. With respect to SCOTUS in particular, we need to think about two more: "one Supreme Court" in Art. III § 1 and "with such exceptions and under such regulations" as to SCOTUS's appellate jurisdiction in Art. III § 2 cl.2. So think about all of these, what they might mean, and how they might affect the constitutional validity of reform proposals. Also, thinking about whether Segall's even-Court proposal violates the President's appointment power under Art. II § 2.
Then move to Original Jurisdiction. What is the difference between original and appellate jurisdiction? What is the difference between exclusive and concurrent jurisdiction? What is within SCOTUS's original jurisdiction and what is within its appellate jurisdiction? What is the source or origin of SCOTUS's jurisdiction? Why put these cases in SCOTUS's original jurisdiction? Why make some of SCOTUS' original jurisdiction exclusive and some concurrent? Concurrent with whom? Why was § 25 of the 1789 invalid in Marbury?
What is the difference between mandatory and discretionary jurisdiction? How has SCOTUS evolved on that, within its appellate jurisdiction? How does the move to virtually all discretionary jurisdiction undermine the rationale for judicial review? What guides the Court in deciding whether to hear a case? Is there a difference between hearing "case or controversies" and hearing "questions?" Is SCOTUS's original jurisdiction mandatory or concurrent? Why? And what are the arguments for and against that? This short essay by Prof. Steve Vladeck offers a nice overview of the evolution of the Court's jurisdiction, on top of the discussion in Chemerinsky.
