For Final Class

Make-up audio. Apologies that the regular class did not record. Abstention papers due at the beginning of arguments.

We continue with Plaut and the new separation of powers principle the Court announced. What does 
"finality" mean for Plaut and Article III purposes?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 proposed bills 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 Tuesday (Double Session)

Monday audio. Double session tomorrow. Mootness papers due tomorrow. I will get argument assignments at the start of class tomorrow. The sections on Abstention (statutory and Colorado) will be combined for purposes of papers; you can write on either section (including the stuff we covered only in cursory fashion, although you must get beyond the broad picture) and all will be due the day of arguments.

What are the factors to balance for international comity abstention? How can both sides (the party seeking abstention and the party opposing abstention) use Colorado? What is 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, considering abstention and § 2283?

Move to Congressional Control: When Does Congress Decide a Case. Please have all statutory provisions in class. In addition to the listed provisions, look at § 324 of the 2023 debt ceiling bill (p.39 of document), the No Kings Act, the Congressional Accountability for Judicial Activist Act, and Title II of the Constitution Restoration Act and consider their validity under Klein . 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 Monday

Tuesday audio. Double session on Tuesday as advance make-up for the Tuesday before Thanksgiving.

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 authorized" 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).

Understanding Sovereign Immunity

I saw some common problems with the Eleventh Amendment papers and wanted to comment on them.

1) You cannot make a pure consequentialist argument against sovereign immunity ("this keeps people from recovering and limits accountability, therefore bad") without acknowledging the many ways in which states can be held to account--abrogation, waiver, EpY, US enforcement. You can argue these are inadequate, but you must address them.

2) Many of you conflated the diversity theory with the plain meaning theory. The difference matters if you want people to be able to recover from states for violations of federal law. A SC citizen could not recover for an ADA violation by Georgia on plain meaning; she could under diversity. Does that matter? Is that distinction warranted as a policy matter?

3) Remember that states are subject to federal law. They just aren't subject to private suit (subject to all the limits on SI in # 1). Too many of you said states were no longer subject to federal law and stopped.

Standing Puzzle

From the Sixth Circuit. Plaintiffs sued the Michigan governor and AG to challenge the structure of the state Court of Claims (the court for money suits against the state, including by public emplyees). The court is staffed with judges from the state court of appeals, which also hears appeals from the court; they argued that plaintiffs are disadvantaged by court of appeals judges reviewing the work of their colleagues. (Note a similar argument was made against the old Circuit Courts in the "riding circuit" days). The court found no standing because any injuries (in a specific case or generally) are not fairly traceable to the governor or AG or redressable by a remedy against them.

The decision intersects with other areas in this class and in Civil Rights. There is some discussion of suing in individual rather than official capacities. And although the court did not take this path, it also could have resolved this on 11th Amendment grounds that the AG and Governor are not the responsible executive officers and so not proper EpY defendants. It also shows the general problem of challenging the structure of courts and court systems, from the point of standing (apart from having the wrong defendants, any future injury from the court is speculative) and other doctrines (such as abstention) that we will get into later.

What should these plaintiffs do if they believe the state judicial system violates due process?

For Tuesday

Tuesday audio. No class Monday. Standing Papers due Tuesday. Judicial Lecture with Judge Abudu at 12:30 on Tuesday.

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 (especially equal protection); 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 (e.g., Hippocratic Medicine or the jawboning case) 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 v. Nebraska, 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.

We continue with Mootness. How does the pick-off technique in Campbell interact with mootness? What is the argument that Campbell has nothing to do with mootness? 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, 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable, 5) government removes plaintiff from the No-Fly List and states he will not be added in the future based on currently available information.

Can a party avoid mootness of his prospective claim 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?

Read Chemerinsky's discussion (p.157) of Pap's. Why might the Court have been reluctant to find the case moot? 

Finally, please confer with your opposing counsel to decide who will represent which side and with your co-justice to decide who will serve as Chief. I will gather this before class on Monday, Nov. 18.

For Tuesday

Monday audio.

We will skip State Standing; so just review Associational and Organizational Standing. What is the difference between them and between third-party standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

Then move to Ripeness/Mootness and our next panel. Why have ripeness and standing collapsed onto one another? Mootness is described as "standing set in a time frame;" what does that mean? What is the standard for mootness? What sorts of things can happen that cause a case to become moot? How can parties overcome mootness? Why was there no mootness in Campbell? What is the argument that Campbell has nothing to do with mootness? Have a look at FRCP 23(a) and (b)(2).

SCOTUS Appointments by President

Charts in this post by Prof. Vladeck. One chart shows an average of appointments per Term, one goes in chronological order.

Another Removability Puzzle (Updated)

The Philadelphia DA brought a state-law civil nuisance action against Elon Musk and his PAC, alleging they were engaging in unlawful activities relating to voting and the election (it's the $ 1 million giveaway to people who vote, which the state argues is an illegal lottery). Musk and the PAC removed on two theories:

1) The case arises under under Grable/Gunn because the PAC's activities are First Amendment protected and the case is about the presidential election, which creates a federal issue and federal interest within the state claim. This seems to take a broad perspective on when a federal issue is embedded, as opposed to being a defense or presenting federal concerns. The logic of the removal argument might federalize an assault that happens at the polling place.

2) There is diversity jurisdiction because the DA is not acting as the Commonwealth but in his individual capacity, making him a citizen of Pennsylvania (and Musk and the PAC are not). This argument relies on a distinction between a DA bringing a criminal case and a DA bringing a civil case, although that distinction appears to be about control over enforcement, not about whether a DA enforcing state law ceases to act as the state.

Update: That did not take long. The state filed an emergency motion for remand, asking the court to move quickly because of the looming election. Here is the order remanding and here is a short opinion explaining that 1) the DA acts for the Commonwealth and thus the state (not a citizen) is the party and 2) there is no federal issue that must be resolved or proven for the Commonwealth to prove its claim and the federal "context" (that it surrounds or effects an election) is insufficient for Grable. Musk only sought removal under § 1441, so this order is not reviewable.