Monday audio. EPY/Non-Article III papers due tomorrow.
No new reading and no new panel. I hope to finish Eleventh Amendment tomorrow and move to Standing next Monday. We will do our make-up next Tuesday, October 17, in a double session.
• Why does "plan waiver" explain the results in PennEast and Torres?
• Why is abrogation permissible under § 5? What are the limits on § 5 abrogation? Considering modern civil rights statutes, which allow abrogation and which do not and how can you explain the different results?
• Consider whether the following ADA claims can be brought in federal court:
• A, an employee of a private law firm, is fired because of a disability.
• B, an employee of the City of Coral Gables Legal Counsel, is fired because of a disability.
• C, an employee of the Office of the Florida Attorney General, is fired because of a disability.
• What is the connection between Ex parte Young and the Eleventh Amendment? If the lawsuit was against the Office of Attorney General Young, why didn't sovereign immunity apply?
• In what way(s) is EPY a "legal fiction" and in what ways can we says it actually is consistent with principles of sovereign immunity?
• How does EPY lend new meaning to "the King can do no wrong?"
• What two things must be true for a claim to fall within the "Ex parte Young exception" to the Eleventh Amendment? A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:
• Damages for pain and suffering
• Reinstatement to his job
• Backpay (wages he would have earned from his wrongful firing until the point of judgment)
• Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)
Consider the following:
New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.
(Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).
