Tuesday audio. No class Monday; happy Labor Day and enjoy the long weekend. SCOTUS Reaction Papers due at the beginning of class.
A final word on the shadow docket and, to a lesser extent, cert-before-judgment. Here is the question: How early in cases should SCOTUS get involved in cases, routinely or in special cases? Stated differently, how important is the three-step litigation process, in which three courts have a full opportunity to decide the issues. Critics of the expansion of the shadow docket and CBJ complain that the Court is taking the power to be the lone decsionmaker (or leaving the district court only a preliminary one). One scholar described this as "Supreme Court Imperialism." Another suggested that the Court was acting not as a "court of last resort" but as a "court of first (and only) resort."
Read all of Courts of Appeals--Finality and Interlocutory. Why the finality requirement in § 1291--what are the policies, benefits, and drawbacks to that? What are the elements of the collateral order doctrine and do they make sense? What is the difference between a right not to stand trial and a right against liability, does the distinction make sense, and how does it affect COD? How does a party seek review of non-final/non-appealable orders? What are the various mechanisms for non-final review and how do they interact? Consider Donald Trump's statement that he plans to appeal the district court order setting a trial date--how could that be appealed, if at all?
