Fall 2023 arguments

Link here, then click on the chosen case. Login required.

Thank you again for a great round of arguments and a great semester.

Cert grant in mifepristone case

Order list here. Note that the Court granted petitions from the FDA and the drug manufacturers on the issues on which they lost--standing and the challenge to the later changes to mifepristone approval. It denied a cross petition from the plaintiffs on the issues on which they lost--challenge to the original 2000 approval of the drug. This suggests that standing, especially traceability, will be the real focus of the argument.

The Court allotted one hour of argument time for the consolidated arguments. Post-COVID, Court shifted the way it conducts arguments. Each side gets some time (usually 15-20 minutes, probably 30 minutes in this case) for a regular argument. That is followed by a round of serial questioning from each Justice, in order of seniority. And that has no time limit, often it is less about questioning than about the Justices making arguments, and can go on for awhile. So do not be surprised if these arguments surpass three hours.

Oral Arguments (Updated and moved to top)

 Reminder that arguments are coming up next Tuesday, December 12. We will begin promptly at 9:30, so you should be there well before then.

Updated Schedule of Arguments and Standing Order on Procedure.

If you have dietary needs and have not notified me, please do so.

Congressional Control papers due at the beginning of arguments. All other graded papers are available for pick-up outside my office.

Acheson decided

SCOTUS on Tuesday decided Acheson Hotels v. Laufer, one of our argument cases. The Court dismissed the case as moot and vacated the lower-court judgment; the opinion is short (3+ pages). Of note are the concurrences--Justice Thomas argues that "testers" lack standing. Justice Jackson questions how routinely (if not automatically) the Court vacates lower-court judgments when cases become moot on appeal; she makes some interesting points about why lower-court decisions should survive even if mootness prohibits appeal.

Congressional Control over SCOTUS

From Prof. Steve Vladeck on Belva Lockwood, the first woman admitted to the SCOTUS Bar. It includes an interesting piece for our purposes: When the Chief Justice refused her admission, Congress enacted a law requiring admission of anyone who meets certain requirements. No one on the Court believed the law problematic--the Chief admitted Lockwood two weeks after Pres. Hayes signed the "Lockwood Bill."

Fed Courts Never Rests (Not Even During Thanksgiving)

A district judge abstained under Younger from an action by a member of the North Carolina Supreme Court to stop an investigation by the state Judicial Standards Commission. The court spent some time trying to distinguish the second and third Younger categories; the rest was pretty straightforward.

Abstention II Reax Papers

Here, here, here, here, here, here, and here.

Final Class

Monday audio.

All previous graded papers will be available outside my office this afternoon.

Abstention II papers will be available next week.

Congressional Control papers due when you come for arguments on December 12.

We begin promptly at 9:30 on Tuesday, December 12. Please refer to the schedule and standing order on procedure for details. Lunch will be provided. Please email if you have dietary needs or restrictions.

Have a great holiday and good luck on finals.

New proposal on Cameras

A bill proposed earlier this year. Prep this in conjunction with the bill posted in Additional Materials.

Interesting Standing Puzzle

The UF chapter of Students for Justice in Palestine, represented by the ACLU, has sued Gov. DeSantis, State University Chancellor Raymond Rodrigues (the head of all public universities), and the president and trustees of UF and moved for a preliminary injunction. As the complaint allegees, Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint does not allege that UF has, at this point, done anything in response to that order.

Assume (as seems likely) any move to deactivate UF SJP would violate the First Amendment. Anyone see a standing problem? Does anyone think the court might recognize and take that seriously? Anyone wanting to analyze can email me and I will post here.

Abstention I Papers

Here, here, here, here, here, here, here, here, here, and here.

Arguments

After the jump are individual links to arguments from Fed Courts in 2019 (the last time I did them in-person); you probably will need to log in. Here are the arguments from Civil Rights last spring; same format.

Also, here is the link for Oyez; under cases, you can click on any case and find the link for the argument. You also can find arguments on SCOTUS's websit (supremecourt.gov).

In saying to avoid moot court niceties, I mean things like giving your name, saying who you represent, etc. Obviously, you should have a roadmap or a theme to your argument--that's what makes it a legal argument. You have a minute uninterrupted to give your arguments--don't waste it.

For Final Class

Tuesday audio. Abstention II papers due Monday. Please note that the site for SPOTS evaluations is now open; please fill them out--we do welcome the feedback.

We continue with Plaut and the new separation of powers principle the Court announced. Can that square with FRCP 60(b)?

We will spend the rest of the class considering different examples of Congress regulating the Court and whether those impermissibly invade the "judicial power." Read the scholarly debates over jurisdiction stripping; although we will not discuss this, it informs much of our conversation. In addition to the Chief's Letter and the Cameras in the Courtroom Act (both on the blog), consider the constitutional validity of the following:

    • Believing opinions are too long and thus impenetrable for ordinary citizens, Congress enacts a law limiting majority opinions to 7500 words, dissents to 5000 words, and concurrences to 2500 words.

    • In resolving a case, the court shall:

        • Issue one per curiam (for the Court, no named author) opinion representing the judgment of the Court and the opinion of a majority. It shall not indicate vote counts.

        • No justice shall write a separate opinion.

        • If a majority of the Court cannot agree on a rationale for a judgment, the Court shall issue an order summarily affirming or reversing, with no opinion and not establishing precedent.

    • Congress enacts a code of ethics binding on SCOTUS.

    • Congress refuses to appropriate money for the courts in a given year, other than to pay the salaries of all Article III judges.

For all of these, consider whether the answer as to the permissibility differs for SCOTUS than for lower courts. If so, what makes SCOTUS different and does that difference justify or require different treatment on these matters?

For Next Class

Monday audio. Abstention II papers due next Monday.

We continue with Congress Decides a Case. Can Congress tell the courts how to interpret statutes, including by requiring or prohibiting, e.g., resort to canons of construction or use of legislative history? What can Congress do or not due under Klein, as we now understand it? What result and why in Robertson, Bank Markazi, and Patchak? What about the Protection of Lawful Commerce in Arms Act? What about § 324 of the 2023 debt ceiling act (begins on p.39)? What about the Congressional Accountability for Judicial Activism Act of 2005 (on the Additional Materials) post? How does judicial departmentalism affect how we understand that statute? What is the law and principle from Plaut and how does it relate to and differ from Klein? How does the law in Plaut differ from FRCP 60(b)'s grounds for granting relief from a judgment?

Puerto Rico and the 11th Amendment

A fun potentially open question: Is Puerto Rico sovereign for 11th Amendment purposes, as applied to IP claims? Longstanding precedent in the First Circuit (which covers Puerto Rico) says yes and the district court must adhere to that. But plaintiffs--the descendants of Puerto Rican baseball legend Roberto Clemente--seem to be trying to set-up a SCOTUS challenge on the issue.

Trump Appeals Gag Order

For those of you following the January 6 prosecution of Donald Trump: Trump has appealed a gag order the district judge imposed to prevent Trump from making certain public statements, especially about witnesses. The jurisdiction statement is on pp. 2-6. He argues the order is appealable under the collateral order doctrine (consider why) and as the equivalent of an injunction under § 1292(a).

Younger in action

An interesting Younger case because it crosses state lines and has some of the timing issues we discussed.

Yelp posts notices on reviews of crisis pregnancy centers, stating that these centers do not provide abortion services. The Texas AG sent Yelp a letter that those notices violate Texas deceptive-practice laws and threatening an enforcement action. Yelp sued in California federal court, alleging that enforcement violates the First Amendment. The next day, Texas filed its state-law action, then moved to dismiss the federal action on Younger grounds (and for lack of personal jurisdiction).

Mootness Papers

Here, here, here, here, here, here, here, and here.

Federal Courts always ongoing

More on settlement and mootness

In our discuss of mootness and Campbell-Ewald, we considered how settlements and settlement offers affect mootness (or should not be deemed to affect mootness.

In this Third Circuit case, a member of a public-employee union sued to recover damages covering past dues paid plus interest, following the Supreme Court holding that compelled union payments violate the First Amendment. The union sent the plaintiff a check in the amount of dues paid plus interest; although the plaintiff did not cash the check, the union argued the offer mooted the case. The Third Circuit rejected the argument, because there was no agreement and the plaintiff had suffered a past injury (subsidizing the union) for which she sought a traditional damages remedy.

More on finality

This is Eleventh Circuit case should have been easy. But it shows you how courts have to quickly address things when the parties fail to pay attention and do something obviously wrong. District court granted summary judgment on the plaintiff's claims but did not address defendant's counterclaims; plaintiff then appealed. The court of appeals dismissed for lack of jurisdiction because the decision on the claims was not final and plaintiff had not obtained an FRCP 54(b) certification. The defendants tried something cute--asking the court to retain jurisdiction and stay the appeal but do a limited remand so the district court can address the counterclaims. The court of appeals refused; lacking jurisdiction, it could do nothing other than dismiss for lack of jurisdiction.

For Next Class

Moot Court semis at 4 p.m. tomorrow in RDB 1000. Judicial Lecture with Justice Couriel at 12:30 p.m. next Thursday, November 16 in RDB 1000. Moot Court finals at 6 p.m. next Thursday, November 16 in RDB 1000. Please note we want to have a small group of students have lunch with Justice Couriel following the lecture; if you are interested, please let me know.

Statutory Abstention/Pullman papers due next Monday.

We will continue with Younger/Colorado/Burford/Comity; those papers (which can cover any doctrines discussed while you were on panel) likely will be due on the final day of class. What are the factors to balance for international comity abstention.

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction and why? What different approaches might the court take?

Move Congressional Control: When Does Congress Decide a Case. In addition, look at § 324 of the 2023 debt ceiling bill (p.39 of document) and Title II of the Constitution Restoration Act. What proposition(s) does Klein stand for? Consider whether there are Klein problems in Bank Markazi, Patchak, the Protection of Lawful Arms in Commerce Act, and the two provisions above? What if Title II of the Constitution Restoration Act applied to statutory claims? Was there a Klein problem in Plaut? What is the distinct constitutional principle the Court adopted there? What makes a law retroactive and what limits are there on retroactivity?

For Next Class

I forgot to turn the audio on--apologies. Pullman/Statutory is done; papers due next Monday--you can write about Pullman. We will have one final word about Pullman, going to Alex's question.

We then turn to the remaining Abstention doctrines--Younger, Colorado, International Comity, and Burford.

We will move to the next panel and the judge-made abstention doctrines (Colorado, Burford, and international comity). What are the elements of each of these? What are the similarities between Colorado River and international comity abstention? What factors and principles do courts balance as to each?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction?

Read the pfander section on Younger (pp. 371-81). Consider the following cases:

    1) Andrew Warren, the Hillsborough County State Attorney, was suspended from office by Gov. DeSantis, a first step under state law to removing him from office under the governor's authority to remove certain officials for "misfeasance, neglect of duty, or incompetence." Warren brings a § 1983/EpY action against DeSantis, alleging the suspension violates the First Amendment. He also believes that nothing he did constitutes "misfeasance, neglect of duty, or incompetence." Suspension triggers a Senate trial, in which the Senate will review the Governor's decision and either reinstate Warren or remove him from office.

    2) Harris is prosecuted in state court under an anti-Communist law for engaging in the constitutionally protected speech of advocating the overthrow of capitalism. Harris sues Younger (the district attorney) in federal court, alleging a First Amendment violation and seeking to enjoin Younger from enforcing the law.

    3) After his victory in the Supreme Court, Jack Phillips of Masterpiece Cakeshop declines a request to bake a cake celebrating a customer's male-to-female transition. The customer complains to the state Civil Rights Commission, which commences a proceeding under the state public accommodations law. Phillips sues the the head of the Commission in federal court, alleging the new proceeding violates the First Amendment (as determined by SCOTUS in his prior case) and seeking to enjoin it.

    4) 3 companies--Tim-Rob, M&L, and Salem--operate nude dancing establishments in a town. The town passes an ordinance prohibiting nude dancing. The companies sue, claiming the ordinance violates the First Amendment; they seek a TRO (which is denied), DJ, and Preliminary injunction. The day after filing, M&L resumes nude dancing and is ticketed; Salem and Tim-Rob comply with the ordinance. The city moves for Younger abstention.

What is the connection between Younger and § 2283? How does the requirement that the state proceeding be "pending" affect abstention?

Ex parte Young and the responsible executive officer

One feature of standing or sovereign immunity in Ex parte Young actions is identifying and suing the responsible executive officer. Plaintiff must show that the named defendant has the particular legal duty to enforce the particular challenged legal provision. As we said in class, this is easy for federal law, because the chain of enforcement authority runs through agency and cabinet heads and to the president (in whom the executive power is "vested" under Art. II). It is harder at the state level, where executive power is divided among state officers and between state and local government.

The Fifth Circuit has been especially strict on this, as indicated in this case holding that plaintiffs cannot sue the governor over an executive order the governor issued, because the EO ordered the state Department of Public Safety to enforce it.

Standing Papers

Here, here, here, here, here, here, here, here, here, here, and here.

For Next Class

Tuesday audio. Mootness/Ripeness papers due next Tuesday. I will gather argument roles at the beginning of class Monday.

We will continue with the current panel for § 2283 and the tax injunction acts (§§ 1341 and 7421); be sure to review § 2201 and § 1983. What does "expressly" mean in § 2283? Why does § 1983 constitute an exception and why does § 16 of the Clayton Act (in Vendo) not?

What is the purpose of the tax injunction acts? How does a person challenge a constitutionally invalid state or federal tax? What constitutes a tax subject to the statutes? What if a party seeks a declaratory judgment that a tax is invalid, rather than an injunction?

We will move to the next panel and the judge-made abstention doctrines (Colorado, Burford, and international comity). What are the elements of each of these? What are the similarities between Colorado River and international comity abstention? What factors and principles do courts balance as to each?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction?

Finally, Pullman and Younger abstentions are the most frequently litigated judge-made abstention doctrines. But they arise exclusively in constitutional cases, so for space reasons I move them into Civil Rights next semester. I want to spend a few minutes reviewing each, so you have a basic idea of what is going on. So read the (short) Pfander sections on Pullman (pp. 363-69) and Younger (pp. 371-81). Consider the following cases:

    1) Andrew Warren, the Hillsborough County State Attorney, was suspended from office by Gov. DeSantis, a first step under state law to removing him from office under the governor's authority to remove certain officials for "misfeasance, neglect of duty, or incompetence." Warren brings a § 1983/EpY action against DeSantis, alleging the suspension violates the First Amendment. He also believes that nothing he did constitutes "misfeasance, neglect of duty, or incompetence."

    2) Harris is prosecuted in state court under an anti-Communist law for engaging in the constitutionally protected speech of advocating the overthrow of capitalism. Harris sues Younger (the district attorney) in federal court, alleging a First Amendment violation and seeking to enjoin Younger from enforcing the law.

    3) After his victory in the Supreme Court, Jack Phillips of Masterpiece Cakeshop declines a request to bake a cake celebrating a customer's male-to-female transition. The customer complains to the state Civil Rights Commission, which commences a proceeding under the state public accommodations law. Phillips sues the the head of the Commission in federal court, alleging the new proceeding violates the First Amendment (as determined by SCOTUS in his prior case) and seeking to enjoin it.

The Question is Moot

As we finish this piece of the course, I must share that no law student or lawyer above a certain age can learn or discuss mootness without thinking of this October 1984 SNL skit featuring Rev. Jesse Jackson. Jackson had run for the 1984 Democratic presidential nomination. One of his talking points was that a particular issue or question was "moot," because the policies and actions of the Reagan Administration had stripped the issue of practical effect.

Jackson parodied that as the host of a game show called "The Question is Moot," recognized as one of the great skits of the '80s. The second contestant is a very young Julia Louis-Dreyfus. You can watch at this link.

For Next Class

Monday audio. Please confer with opposing counsel and co-judge before class next Monday. Once I have roles, I also will distribute information about the arguments, including dress code.

We will begin with some final words on Mootness. Why might the state-court origins of Pap's A.M. have affected the Court's choice on mootness? What is the problem with, as Pfander suggests, courts considering the merits of a case (or class of cases) in deciding how strictly to apply justiciability? Why might a Court do that? Consider two examples: SCOTUS held in Poe v. Ullman (1961) that a pre-enforcement challenge to Connecticut's was not ripe; in Griswold v. Connecticut (1965), the Court declared the law invalid. SCOTUS held in Hollingsworth v. Perry (2012) that intervening defendants lacked standing to appeal a trial court judgment declaring California's prohibition on same-sex marriage invalid; it held in Obergefell (2015) that prohibitions on SSM violate the 14th Amendment.

We turn to Abstention--General Principles and Statutory Abstention. What is abstention? What is "mandatory jurisdiction?" What are the separation of powers arguments for and against these doctrines? What is Congress' role as to abstention? Does statutory abstention raise the same separation of powers concerns? What is comity as a policy concern for federal courts?

On Statutory Abstention:

    • What is the purpose of § 2283--who benefits from limiting federal courts and how? What is the purpose of the tax injunction acts (§ 1341 and § 7421) and why not allow claims to enjoin taxes?

    • What are the exceptions to § 2283 and why? What is the difference between "necessary in aid of jurisdiction" and "to protect or effectuate" judgments?

    • Why is § 1983 an expressly authorized exception? Why is the Clayton Act not in Vendo?

    • What is the relitigation exception and how does it fit into § 2283? How does preclusion fit into the statute? How can preclusion be raised as an issue?

    • Consider the procedural posture of Atlantic Coastline. How did § 2283 apply and what should the Union do?

        • Railroad sues Union in federal court in 1967, seeking to enjoin pickets at the Moncrief Terminal. The federal court denies the injunction.

        • Railroad sues Union in state court in 1967, seeking to enjoin pickets at Moncrief Terminal on state-law grounds. The state court grants the injunction.

        • SCOTUS in Jacksonville Terminal (1969) held that unions enjoy a statutory right to picket on employer property and that the union could picket at Jacksonville Terminal.

        • Following Jacksonville, Union moves the state court to dissolve the injunction, under authority of Jacksonville. The state court refuses.

        • Union sues Railroad in federal court, asking the federal court to enjoin the Railroad from seeking to enforce the state-court injunction.

Non-Art. III Standing and SCOTUS Review

Something we did not cover in our Standing discussion, but consider this an addendum to class.

Art. III addresses the "judicial power of the United States" vested in SCOTUS and inferior courts Congress creates--the "courts of the United States," meaning federal courts. It is silent as to the courts of the states. That means, as with state constitutions generally, states can create their own standing rules, including allowing people to have standing in state court who would not have standing for the identical claim in federal court.

To use one example in the news--Texas municipalities can adopt "abortion trafficking" ordinances allowing "any person," however random or disconnected to the events, to sue someone who uses a particular road to drive a person for an out-of-state abortion. For another example, this decision from a Colorado trial court refusing to dismiss a lawsuit brought by some voters seeking to keep Donald Trump off the state ballot under § 3 of the 14th Amendment. No one challenged standing, which was granted by state law. This contrasts with the federal cases (cited in the opinion) from 2008 by voters trying to sue to keep Barack Obama off state ballots because he was not a natural-born citizen; all rejected standing.

So states get to set their own rules. Many (including Florida) follow Article III. Others (Texas and California are notable) enable much broader private enforcement, especially for environmental and consumer-protection laws.

Here is one more question to consider, looping standing back to SCOTUS jurisdiction: The Colorado lawsuit will address federal issues--the scope and meaning of § 3; any lawsuit under a Texas ordinance will trigger federal defenses of the right to travel and probably First Amendment. In an ordinary state-law action, SCOTUS can review the final decision of the state supreme court following review through the state-court system. But SCOTUS is an Article III court, meaning it requires a case-or-controversy that meets Article III requirements, particularly injury-in-fact.

Nevertheless, the Court has held that it can exercise appellate jurisdiction and review the federal issues in this situation (state-court judgment on federal issues in a case that would have lacked standing in a federal district court). How do you suppose it reached that conclusion--where is the Article-III satisfying injury? You are welcome to research it and write it as an email to me (to be posted here) or as a reaction paper for your panel.

For Next Class

Tuesday audio. Standing papers due Monday. I expect to finish Ripeness/Mootness Monday and at least begin Abstention, so the next panel should be ready to go.

On Mootness:

How can parties overcome mootness? What does capable-of-repetition-yet-evading review entail and what does it require? What sorts of cases will be covered by this? Is it an exception to mootness? Does CRER cover the detainee released from custody and deported wishing to challenge the shackling policy? What about a teen who is 18 and graduated challenging school policy of allowing students to be questioned without their parents present? When does voluntary cessation moot a case--consider mootness when 1) a statute is repealed, 2) a regulation is repealed, 3) an internal departmental policy is changed, and 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable. Can a party avoid mootness by seeking nominal damages and why? What happens to the lower-court judgment when a case becomes moot on review?

Consider City of Erie v. Pap's A.M.: The owner of a nude-dancing establishment sued in state court to enjoin enforcement of an ordinance; it prevails in the state supreme court, which rules that the ordinance violates the First Amendment. After SCOTUS grants cert, the owner closes the business (although he maintains his business license). Moot? How is this different from the typical mootness case? How might where the case originates affect the Court's decision about mootness? (Note: Chemerinsky refers to Pap's as the defendant--it was the plaintiff in state court).

What is the problem with, as Pfander suggests, courts considering the merits of a case (or class of cases) in deciding how strictly to apply justiciability? Why might a Court do that? Consider two examples: SCOTUS held in Poe v. Ullman (1961) that a pre-enforcement challenge to Connecticut's was not ripe; in Griswold v. Connecticut (1965), the Court declared the law invalid. SCOTUS held in Hollingsworth v. Perry (2012) that intervening defendants lacked standing to appeal a trial court judgment declaring California's prohibition on same-sex marriage invalid; it held in Obergefell (2015) that prohibitions on SSM violate the 14th Amendment.

I hope to begin Abstention, so prep General Principles. What is abstention? What are the separation of powers arguments for and against these doctrines? What is Congress' role as to abstention?

For Next Class

Monday audio. Standing Reax Papers due next Monday.

We will spend a few minutes at the start of class tomorrow on the dissent in Biden.

We move to Ripeness and Mootness. For Ripeness, read § 2201, SBA (including FN 5), Medimmune (including FN 8), and the Pfander reading; skip Chemerinsky. What is the connection between ripeness and standing? What was the dispute over ripeness in Medimmune and how did the Court resolve it? Imagine a municipality prohibits yard signs. Two individuals want to sue--A never wants to post a sign, while B wants to post a sign supporting Kamala Harris for President in 2028. Can either suit go forward and why?

Then move to Mootness; prep the entire section. Mootness is described as "standing set in a time frame;" what does that mean? What is the standard for mootness? What sorts of events can moot a case? How can parties overcome mootness? What does capable-of-repetition-yet-evading review entail and what does it require? What sorts of cases will be covered by this? Is it an exception to mootness? Does CRER cover the detainee released from custody and deported wishing to challenge the shackling policy? What about a teen who is 18 and graduated challenging school policy of allowing students to be questioned without their parents present? When does voluntary cessation moot a case--consider mootness when 1) a statute is repealed, 2) a regulation is repealed, 3) an internal departmental policy is changed, and 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable. Can a party avoid mootness by seeking nominal damages?

What is the problem with, as Pfander suggests, courts considering the merits of a case (or class of cases) in deciding how strictly to apply justiciability?

Finally, one last word on standing. Many have commented on what we can call the "ideological drift" of standing. Narrow standing came from conservative courts attempting to reign-in progressive litigation on issues such as consumer protection, environmental protection, and constitutional rights; the left decried the rules while the right celebrated them. That dynamic arguably has flipped--the right decries narrow standing as it engages in more constitutional litigation and the left seeks to defeat claims on standing grounds. Similarly, conservative Justices have become more likely to find standing (at least in certain cases), with liberal Justices railing about the Court abandoning the judicial role. We see that in the reactions to Biden, 303 Creative, and other cases. This article by Richard Re (University of Virginia) argues that progressive reaction to 303 reflects the left's potential abandonment of pre-enforcement constitutional litigation.

11th Amendment papers

Here, here, here, here, here, here, here, and here.

For Monday

Standingstock audio--Part I, Part II.

We continue with Taxpayer Standing, Third-Party Standing, and State Standing. I hope to finish Standing on Monday and  Ripeness/Mootness on Tuesday; that panel should be ready to go for Tuesday.

    • What are the limits on Flast standing under Valley Forge, Hein, and Winn? Imagine the government wants to subsidize the purchase of crucifixes by private individuals (an obvious EC violation)--how could it work that program and could a taxpayer challenge it?

    • Why limit third-party standing?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • Barrow v. Jackson: White homeowner sued for damages for violating restrictive covenant by selling to African American purchaser

        • Kowalski: Attorney sues to challenge constitutional validity of law denying public funds for an attorney on appeal where the defendant pleads guilty.

        • Craig v. Boren (you should remember this one from Con Law): Bar owner challenges constitutional validity of law allowing women to purchase higher-alcohol beverages at 18 but men at 21.

        • Morales-Santana: Federal law makes it easier for a US-citizen mother living overseas to transmit citizenship to child than for a US-citizen father living overseas. Man facing deportation challenges the law, arguing he is US citizen from brth and thus not deportable. He was born overseas to US citizen father and non-US citizen mother and thus was not citizen at birth; he would have been citizen at birth if his mother was the US citizen parent. His father is deceased.

    • State law that imposes criminal penalties and loss of medical licenses on medical who prescribe contraception or prescribe gender-affirming hormone therapy; providers sue to enjoin enforcement of the laws. What is the argument that this is first-party rather than third-party standing?

    • What is overbreadth and how can we understand it as 1st-party standing and 3d-party standing?

    • What is associational standing? What is organizational standing? How are they different?

For Tuesday

Monday audio. 11th Amendment papers due Tuesday. For our double session tomorrow, we will go until 12, take a 15-minute break, then go until around 1:25.

We continue with Considerations. Is there standing in 303 Creative? What about for the restaurant owner who wants to begin a Sunday family drag brunch and has made plans (designed a menu, finding talent, designed decorations, planned advertising), where state law prohibits drag for mixed audiences and the law has been enforced against other venues?

    • What is "adverseness" and how does it fit into the standing analysis?

    • What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech" Act (discussed in class last week)?

    • Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing?

    • Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies), and Clapper.

    • What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine?

    • What is an "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See pp. 40-47 in Judge Newsom's concurring opinion in this 11th Circuit case.

     • How does standing protect the executive power, given Article II? What is the argument that separation of powers does not explain standing--and arguably undermines it? If not S/P, what other values does standing serve?

    • How do merits and standing interact? (See pp. 40-49 of the Newsom concurring opinion in this 11th Circuit case).

    • How should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

Prep Taxpayer Standing and Third-Party Standing.

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Why limit third-party standing?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a father to pass citizenship compared with mother.

Non-Art. III Papers

Here, here, here, here, here, here, here, here, and here.

For Monday

Tuesday audio. Double session (minus the 10 minutes from today) next Tuesday. Eleventh Amendment Papers due at the beginning of class Tuesday.

Move to Standing; prep Constitutional and Statutory Considerations; in addition to the cases listed, focus on TransUnion (discussed in Pfander)and SpokeO (discussed in both). Also read pp. 40-49 of the concurring opinion in this 11th Circuit case (you are welcome to read the whole thing).

What are the elements and types of standing? What are the supposed purposes of standing and why do they justify (or not) the doctrine? How does standing connect with the merits--and what is the argument that what we call standing is really about the merits? Consider:

    • What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech" Act (discussed in class Monday).

    • Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing?

    • What is the difference between "certainly impending" and "substantial risk?" When does Driehaus say a risk of enforcement is sufficiently imminent? Can you reconcile Clapper and Driehaus in terms of imminence?

    • Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies), and Clapper.

    • What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine?

    • What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See pp. 40-47 in Judge Newsom's concurring opinion in this 11th Circuit case. 

    • Is there standing in the following case: A, a website and graphic designer, wants to begin designing web sites for weddings. She has laid the groundwork for those plans, including mock-ups of the sites she would design, although she has never designed (or been asked to design) a site for a couple. State law prohibits discrimination in places of public accommodation because of sexual orientation. A has ideological and religious objections to same-sex marriage and would not want to tell the story on her web-site of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.

For Tuesday

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).

 

For Monday

Tuesday audio. Non-Article III Reax Papers due at the beginning of class Tuesday. To be clear: I can review papers with you, so long as I don't see the Blind ID #.

Torres v. Texas Dept. of Public Safety is from 2022, showing how the Court has shifted in its approach. Read at least Justice Breyer's majority opinion. Then read the remainder of the assigned pages in both treatises.

What are the competing theories of the Eleventh Amendment's meaning? WWhat are the purposes of sovereign immunity--what does it hope to achieve? What does immunity protect states from and what does it not protect them from? What is abrogation and when can Congress abrogate or not? How does abrogation relate to and depart from the concept of the "plan of the Convention" before and after PennEast and Torres. What are the "structural safeguards of federalism" and how does that explain abrogation? Looking at what abrogation has been allowed for modern civil rights statutes under § 5, its there a logical way to explain the different outcomes? Can Congress subject states to suit under the Spending Clause and why, if it is a § 8 power?

For Tuesday

Monday audio.

We will finish Non-Article III Jurisdiction. On the "§ 1259 is invalid" argument, what about SCOTUS review of state courts, D.C., and Puerto Rico? What is the argument that § 1259 is valid? What makes CAAF different (around the term "adjudication") from James Madison refusing to deliver Marbury's commission? Then move to Magistrates, with a detailed focus on § 636, and Bankruptcy Courts. For bankruptcy, look at 28 U.S.C. § 157 and 28 U.S.C. § 158, which establish the process for bankruptcy cases (somewhat similar to magistrates). As to both, what is the connection between the non-Article III adjudicator and the Article III district judge?

We move to Eleventh Amendment and the next panel. For tomorrow, we will touch on the background to sovereign immunity and the Eleventh Amendment. Read the Amendment, along with Pfander pp. 249-56 and Chemerinsky pp. 445-62. What are the competing theories of the Eleventh Amendment's meaning? Where does sovereign immunity come from and what is its purpose? What does it mean to say "The king can do no wrong?" What happened in Chisholm and how did the Eleventh Amendment respond?

Finally, a last word on our discussion from today about DJs and injunctions. We said a DJ is sufficient in many patent cases, particularly involving parties, such as Genentech and Medimmune, who enjoy a business relationship; they need the determination of rights, not necessarily the judicial restriction on conduct. And the business relationship establishes some level of trust Not always, of course, as this Eleventh Circuit case shows, where one of the parties is a bad actor. The restriction on conduct and the contempt hammer become necessary. This also shows some of the issues arising from J.J.'s question about who an injunction binds.

Removal and Remand Everywhere

Some more cases that your successors will see in oral arguments next fall. But they illustrate the analysis and interaction of many of the doctrines from our last two sections of class. Worth skimming through both.

Sherod v. Comprehensive Healthcare (3d Cir.) held (based on controlling on-all-fours circuit precedent) that a nursing home could not remove a state negligence claim arising from a patient's COVID death under either § 1442, complete preemption by a federal COVID-response statute, or Grable. Every circuit to consider such cases has rejected removal.

Connecticut v. Exxon-Mobil (2d Cir.) is the latest case rejecting removal of state or local government suits against oil companies over climate change. Again, the court discusses § 1442, Grable, and complete preemption. It also offers a handy way of explaining the three situations in which a non-federal cause of action can be removed--where Congress provides for removal of state-law claims (e.g., § 1442), complete preemption, and Grable; it frames the first two as falling under the "artful pleading" doctrine.

Both cases illustrate a point not discussed in the reading and which I neglected to mention in class. Section 1447(d)'s bar on appeals of remand orders makes an exception for removal based on §§ 1442 and 1443. But what happens if a defendant removes based on § 1442 and § 1441 and the district court decides that neither ground supports removal? Obviously the defendant can appeal the portion of the order rejecting § 1442. Can it also appeal the rest of the order, rejecting § 1441 removal (i.e., deciding that the well pleaded complaint rule does not support federal question jurisdiction)? BP v. Mayor and City Council of Baltimore said it can. Section 1447(d) speaks of appealing an "order remanding a case;" that includes everything the district court addressed in the order. We thus have seen a dramatic increase in appellate review of remand orders, as large businesses assert (often dubious) § 1442 removal along with § 1441, then appeal the whole. Justice Sotomayor warned of this problem in her solo dissent. That happened in both of these cases.

District Court Papers

Here, here, here, here, here, here, here, and here.

For Monday

Tuesday audio (first 31 minutes only, sorry about that).

We continue with Declaratory Judgments. Download Medimmune from the Additional Materials post; read the facts and procedural posture for now. Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Then move to Non-Article III Courts, including the additional statutes on the blog. What do we mean by "non-Article III courts?" What are the four types of non-Article III bodies? What is the public rights doctrine and how does it explain non-Article III jurisdiction? What is the argument, grounded in Marbury, for and against SCOTUS power to review the Court of Appeals for the Armed Forces? Would it be different if review was in the courts of appeals?

18 year SCOTUS retirements

Jack Balkin is a professor at Yale and a supporter of the regular-appointments plan. Here he elaborates on a way to impose 18-year limits on current justices--He limits the junior-most nine plan to appellate cases, thereby using the exceptions-and-regulations clause as the hook for the limitation. All justices would hear original cases (the few that arise). But because most of the action is on the appellate docket, this achieves what everyone wants--rotation in the Court's core functions.

Pathways to Federal Clerkships

The Wilkie D. Ferguson, Jr. Bar Association (the federal bar association for South Florida) is sponsoring Pathways to Federal Clerkships, a panel discussion on federal clerkships. Speakers are Judges Bloom, Gayles, and Maynard of S.D. Fl. The event is 5:30 p.m. on Tuesday, October 3 at Stearns Weaver Miller. Registration link on the event web site.

Fed Courts is the essential class for a federal (or, frankly, state) clerkship. I encourage everyone to consider clerking at some level and I encourage everyone to attend this event.

Shadow Docket Watch

A new blog that tracks and updates emergency motions and applications to SCOTUS (the "shadow docket").

For Tuesday

Tuesday audio. No class Monday. District Court Reax Papers due at the beginning of class on Tuesday.

We begin with Ex parte Young, as discussed in Pfander. What happened in the case and how did it create a new way for constitutional rights to be litigated? What is the "rule" of EpY and what sorts of lawsuits does it allow. What are the criticisms of this way of adjudicating rights? What are the benefits to the federal rights-holder?

We then turn to Three-Judge Courts and Declaratory Judgments. Both reflect ways to address objections to and criticisms of EpY--how does each do that?

What is the complete process for 3-judge courts in § 2284(b), Shapiro, and § 1253? Why allow those 3 classes of cases to still be heard by 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, and why?

Then move to Declaratory Judgments. What is a declaratory judgment and how does it differ from an injunction? Consider the enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:

    • 2017 MGM mass shooting: Victims have tort claims against MGM; MGM believes it is protected by a federal statute immunizing property owners from claims arising from terrorist activities. The statute provides a federal right of action against the third-party hired by the property owner to provide security services; no claim lies against the property owner.

    • I insures Dr. X against malpractice; Dr. X injures A, one of his patients.

    • Mottley

    • Medimmune v. Genentech (facts discussed in Pfander pp. 80-81)

    • Skelly Oil (discussed in Chemerinsky)

How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Do not move on to Non-Article III Courts. We will get there the following week.

For Tuesday

Monday audio.

We continue with Arising Under and embedded federal issues. Discuss whether there is jurisidction in Grable, Gunn, and Trump's removal of the Colorado lawsuit invoking § 3 of the Fourteenth Amendment.

Move to Complete Preemption and Customary International Law (you may have covered this material in ICL). What is the "rule against artful pleading" and how is it a counterpart to the rule that plaintiff is master of the complaint? What is complete (or "transformative" preemption), how does it affect jurisdiction, and when does it apply? To what does preemption apply and does the doctrine make sense? Review the Notice of Removal in Rodriguez--what is the preemption argument there? What does § 1350 do according to Sosa and what sorts of claims are possible in federal court?

We then move to the next panel. For tomorrow, know the basics of Ex parte Young (discussed in Pfander). How does EpY allow plaintiffs to assert constitutional rights. Without EpY, how would defendants (such as the railroad) assert constitutional rights?

We then move to Panel # 5 towards the end of class. Prep Three-Judge District Courts. Know the basics of Ex parte Young (discussed in Pfander, pp. 257-62); disregard the Eleventh Amendment piece for now.  How does EPY allows plaintiffs to assert constitutional rights; before EPY, how would defendants (such as the railroad) assert their rights?

Court of Appeals Reax Papers

Here, here, here, here, here, here, here, here, and here.

Meadows removal

As we know, former Trump chief of staff Mark Meadows removed the Georgia prosecution under § 1442; the district court ordered remand. As your preparation of § 1447(d) tells you, that is appealable. Meadows appealed and requested that it be expedited; argument will take place this Friday morning, via zoom. Also, the court of appeals ordered the parties to brief whether a former federal office holder (one not in office at the time the action commences) can remove. Recording of the argument may be available as early as Friday afternoon; check the 11th Circuit web site.

When I said the material in this class makes the news, I was not kidding.

For Monday

Tuesday audio. Court of Appeals papers due Monday.

What is the purpose of allowing removal (of, by definition, state-law cases) under § 1442 and § 1443--why allow removal in these situations? Review §§ 1455, 1446, and 1447 on the process of removal, including appealability of remand. When a defendant files a notice of removal, where is the case? What happens then? Again, skim the the order remanding in Meadows.

Prep Arising Under, then prep Removal and Exclusive Jurisdiction and Complete Preemption. How would removal work (if at all) for the following actions in state court, in light of § 1441 and § 1454:

    1) A sues X on state law claims; X asserts a counterclaim for Trademark infringement

    2) A sues X on state law claims; X asserts a counterclaim for antitrust violations

    3) A sues X on state law claims; X asserts a counterclaim for Copyright infringement

When does an action on the face of the WPC arise under, under Mims and American Well Works? Why extend it beyond that core? How is the core expanded in Grable and Gunn? What is the difference between subject matter jurisdiction and the merits of a claim? Was there jurisdiction in Morrison? What about in a Title VII case against an entity that does not qualify as an "employer" (because it has fewer than 15 employees) or by a person who is not an "employee" (because an independent contractor?

Last week, a lawsuit was filed in Colorado state court seeking to exclude Donald Trump from the ballot there because he engaged or supported insurrection, making him ineligible for federal office under § 3 of the Fourteenth Amendment and thus unable to qualify for the ballot under Colorado law. Trump removed to federal court. What is the argument for and against jurisduction under Grable and Gunn?

Please note that some of the provisions in the Chemerinsky appendix are old or inaccurate. I am checking and will provide updated versions if they are wrong. The appendix in Pfander is more up-to-date but does not include many provisions.

What if the District Court refuses to certify under § 1292(b)

Alex asked. Part III of this (fairly short) opinion gives the general answer. Your successors in this class next fall are likely to face this as an oral argument case. A deeper analysis is fair game for a reaction paper.

For Monday

Monday audio. Court of Appeals papers due next Monday.

We move to District Courts; prep Structure, Overview, Removal, and Arising Under: Arising Under (just Chemerinsky 305-18 and Pfander 133-44; and all the assigned statutes). Add Chemerinsky, 842-53.

How are the district courts organized? Why do federal courts have federal-question jurisdiction-what are the three policies behind it? What is the process for removal? What is the Well-Pleaded Complaint Rule, what are the arguments for and against it, and how does it limit jurisdiction? How do cases governed by the WPC get a federal forum for federal issues? What does "arising under" mean for Article III, § 1257, and § 1331 purposes? Why give district courts "arising under" jurisdiction? What are the three types of statutes through which Congress gives district courts "arising under" jurisdiction (based on §§ 1331, 1337, 1338, 1121, and 2000e-5(f))? Know the facts and procedure of Mottley and how that affected jurisdiction.

For the removal section, current events require broader discussion of federal-officer removal under § 1442. Why allow federal officials (or those they supervise) to remove? Read Mark Meadows' (former Trump chief of staff) notice of removal under § 1442 of the Georgia RICO prosecution and skim the order remanding. See also 28 U.S.C. § 1455.

SCOTUS Reax Papers

Here, here, here, here, here, here, here, here, here, and here.

For Monday

Tuesday audio.

Prep all of Courts of Appeals, which I hope to finish (or mostly finish) Monday. We pick up with that final question--how does the availability of interlocutory-appeal rules (especially from SCOTUS in § 1292(e) affect the scope of COD? Why are injunctions immediately appealable under § 1292(a) and how does that relate to our discussion of the shadow (emergency) docket? What is the argument that denial of class certification (allowing a named plaintiff to sue on behalf of thousands of unnamed, similarly situated persons) should be reviewable under COD? Where does 23(f) come from and how does it reflect a response to Coopers & Lybrand?

Consider the following two cases in district court

    1)  A and B v. X; A asserts one antitrust claim while B asserts one antitrust claim and one state law claim.

    2) A v. X, asserting one antitrust claim. B v. X asserting one antitrust claim and one state law claim. The cases are consolidated under FRCP 42 because they share common questions of law or fact.

What is the process and standard for mandamus? Given Marbury, how can SCOTUS issue a writ of mandamus in cases such as Cheney?

Panel # 4 (District Courts) should be ready to go for Tuesday.

For Tuesday

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?

For Tuesday

Monday audio. Monday audio reposted.

We finish with § 1257(a) and the third possibility under Cox Broadcasting.

In addition, read pp. 8-11 in Moore v. Harper. The Court reject the independent state legislature doctrine--the theory that the U.S. Constitution grants state legislatures exclusive and unilateral control over redistricing and selector of presidential elections, unchecked by the state executive or state courts. The case was complicated because the North Carolina Supreme Court first reached the merits and rejected ISL, then (while the case was pending in SCOTUS and after the court's political alignment changed) reconsidered and held that political gerrymandering claims are not justiciable under the state constitution. SCOTUS thus had to consider whether the initial judgment rejecting ISL was final for § 1257. Was the Court right in finding finality? Did it rely on the correct Cox category?

Then move to Review of Federal Courts of Appeals. Add Supreme Court Rule 11, which deals with Cert before judgment; the Vladeck piece provides a nice history of this practice. What does it mean for a case to be "in" the court of appeals for § 1254?

I hope to move to Panel 3 and Courts of Appeals for the end of the class. For tomorrow, prep Structure and Finality/Collateral Order. Note how the courts of appeals are organized and the slightly different status and longevity for judges, as shown in the rules and statutes.

Judicial Supremacy v. Departmentalism

This post from Prof. Steve Vladeck (Texas) discusses judicial supremacy and the language of Cooper v. Aaron. (please do not share the link outside class). He elaborates on stuff we touched on in class-the difference between the judgment in Brown (binding only on the parties and, something we did not mention, enforceable by contempt of court if ignored) and the opinion in Brown and how various officials react.

Several points worth highlighting:

    1) Judicial supremacy depends on public perception and attitude. If the public regards SCOTUS opinions as pronouncing the controlling meaning of the Constitution, it creates political pressure for other actors to fall in line. Eisenhower sent in the 101st Airborne--importantly, to enforce not Brown but the district court opinion in a Little Rock lawsuit applying Brown--because national public pressure pushed him in that direction.

    2) The President plays a unique role here. If the judgment involves non-federal law (as in Brown and Cooper), the President's role is to enforce that judgment, raising the question of what a President can and should do if he disagrees with that judgment. If the judgment involved federal law (e.g., the injunction prohibiting enforcement of the student-loan relief plan), the President (or some other executive official subject to presidential control) is both the party bound by the injunction and the person who enforces it.

    3) The line between judicial supremacy and judicial departmentalism ultimately turns on how much leeway we give political actors who were not parties to the first case to ignore precedent until they get sued and subject to a court order. In other words, could Little Rock officials--adhering to their oaths of office and public obligation--continue enforcing current law and ignoring Brown, until sued and subject to a new judgment against them? Vladeck says no; a departmentalist would say yes.

This applies not only to how similarly situated government actors respond to precedent (i.e., how Little Rock officials responded to precedent created by a judgment in a case involving Topeka officials). It also applies to officials responding to a judgment against them. To see how much play there is in the joints and how complex this is, consider Allen v. Milligan from last term.

    SCOTUS held that Alabama's congressional map--containing one majority-Black district and one district that was about 39 % Black--violated the Voting Rights Act. SCOTUS affirmed an injunction requiring Alabama to draw a map that contained a second district that was majority or a "substantial minority" Black. Alabama enacted a new map with one majority-Black district and one district that is 41 % Black. Did they ignore the court order? Or did they attempt to comply and now we have a new question--to be litigated--of whether 41% constitutes a "substantial minority"?

Intro Reaction Papers

Here, here, here, and here.

For Monday

Tuesday audio.

We continue with Supreme Court Review of state courts. How has the court limited procedural rules as independent-and-adequate and why (note the timing of many of these cases)? What other state law can be I&A? What is an "advisory opinion" and how does the general prohibition on them explain independent-and-adequate? What are the different approaches to cases in which it is difficult to determine whether a decision is based on federal or state law and why did the Court settle on an approach in Long? (See the Pfander discussion of Long). What are the benefits and drawbacks to the Long approach? What does finality mean at its core and what other understandings of finality has the Court adopted--what are their details and why?

Move to Review of Federal Court of Appeals, looking closely at §§ 1253 and 1254; skip Camreta. What does it mean for a case to be "in" the court of appeals for § 1254 purposes? What is certiorari before judgment and when does the Court exercise that power (see the Vladeck essay from SCOTUSBlog).

I expect/hope to finish SCOTUS on Tuesday, depending on how far we get on Monday, so panel 3 (Courts of Appeals) should be ready to go.

For Tuesday (Updated)

Monday audio.

Continue with Original Jurisdiction.Why make some original-jurisdiction cases exclusive? What is the source of SCOTUS's original jurisdiction? What is the argument for and against discretionary original jurisdiction?

Then move to SCOTUS Review of State Courts, covering the first three sections (Background; Power and Independent & Adequate); review the chart of the structure of the judiciary and the chart of the Florida judiciary. Compare and contrast the pre-1988 version of § 1257 (on the Blog) with the current version. What is the source of SCOTUS's appellate jurisdiction? Can federal courts review state court's constitutional decisions and why? What can SCOTUS review from a state court and why? What are the different ways of dealing with mixed federal/state cases?

Argument Cases

List of oral argument cases.

We have 30 in the class and 15 cases; every case has two advocates and two judges. At some point in the semester, you must agree with your partner as to who will represent which side (per SCOTUS practice, the first-listed party is petitioner, the loser below) and who will serve as chief justice. 

Fifteen cases means we can do this in one long (8-ish-hour) day of arguments, including a break for lunch.

I assigned all roles on all cases at random, ensuring only that no one argues and judges consecutive cases.

Panels (Updated and moved to top)

Updated and final panel roster. Most everyone stayed the same; a few (randomly selected) people moved. The panel sizes are evenly balanced.

Each student is assigned to three (3) panels. Each panel will be "on" for at least 1 1/2 class sessions; some are longer and some are shorter. They are randomly assigned, although longer panels have more people. 

The group assigned to Introduction must be ready on the first day of class (apologies, but you have time to prepare). Please sit on the side of the room closest to the front door.

This schedule is based on enrollment as of August 1. If enrollment changes, panels may change.

Reaction papers are tied to your panel; each paper is due one week after we finish a panel.

Panels after the jump.

Vladeck, History of Certiorari

Returning to the beginning of the semester, here is a good discussion of the 1925 law that made most of SCOTUS's jurisdiction discretionary and that, unintentionally, ushered in the practice of "questions presented."

For Monday

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.

For Tuesday

Monday audio. Class begins tomorrow at 10:45. I will answer questions about the syllabus and course assignments in the first couple minutes of class. Please check the updated panel assignments. Panel # 2 is on tomorrow; sit on the far side of the room.

We finish Introduction. Why should the power of review rest with courts? What is "judicial supremacy" and does the power of judicial review entail that? What is "departmentalism?" What is the best way of understanding the role of different branches in constitutional interpretation? What is "judicial activism" and why should you never again use that phrase in this class?

Also, apropos of today's class: This essay, from a historian at SMU, discusses the impeachment of Justice Samuel Chase. It tells the full story of the impeachment and trial; how the case has become precedent limiting impeachment to criminal activity rejecting the power to judges for bad or disagreeable decisions on the bench; and how we might reconsider that limited conception of impeachment. Note that in focusing on the "high crimes and misdemeanors" language of Art. II, the author ignores the "good behaviour" language of Art. III. Here is the list of the 14 impeached judges, 8 of whom have been removed.

We then move to Supreme Court, covering Structure. Consider how the Court's structure has evolved historically and the validity of proposals to alter it. Review the various proposals for changing the Court and think about whether they are valid and whether they are a good idea. Also, consider a proposal for Supreme Court panels in which three justices hear each case rather than the full Court. One correction--pp. 124-25 in Chemerinsky should be 725-28.

Welcome to Fed Courts and First Week Assignments

Welcome to Federal Courts. 

This blog is the primary means for out-of-class and between-class communication.

Please download and read the Syllabus for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class.

You should bring the Syllabus with you to every class. Please download and review Course Assignment Information for complete details about grading and graded assignments for the course. I will answer questions about these prior to the second class, on Monday, August 14.

Technology and Class Conduct:

• No laptops or other technology permitted in the classroom.

Required Course Materials:

1) Erwin Chemerinsky, Federal Jurisdiction (8th ed. 2021) (“Chemerinsky”)
2)  James E. Pfander, Principles of Federal Jurisdiction (4th ed. 2022) (“Pfander”)

3) Federal Courts Blog: http://fiufedcourts.blogspot.com/. Additional Cours Materials, as indicated in syllabus; you should bookmark this page, because you will come back to it a lot.

Assignments for First Day of Class (after the Jump)