FIU Law Votes, Tuesday, October 22 (Right After Class)

 

Ex parte Young in action

I am sure most of you have been following efforts of the Florida government to oppose Amendment 4.

The most recent controversy surround an ad titled "Caroline;"it features a pregnant woman with terminal cancer who wanted to terminate her 20+-week pregnancy to receive life-extending (but not life-saving care) and states that she could not obtain that abortion under current Florida law (but could under the law Amendment 4 would create). The state responded by sending letter to several tv stations demanding they stop running the ad; because they insist the statement that Caroline could not receive an abortion is false, they threatened  prosecution or civil enforcement for public nuisance for making false statements that could injure the public. Recent reports state that the state has hired private law firms to pursue these cases. Floridians Protecting Freedom, the initiative sponsor, filed an EpY/§ 1983 action against the state surgeon general and the lawyer who signed the letter to the tv stations, seeking a declaration that threats violate the First Amendment (and, necessarily, a declaration that the ad is constitutionally protected).

This reflects EpY in action. Rather than wait for state enforcement--and knowing that they suffer harm in the interim should any tv stations yield to the threat and pull the ads--they take the offensive and go to (federal) court first.

The case raises some interesting issues beyond EpY, namely standing (. The state directed the threats at the tv stations and the tv stations would be the targets of any enforcement action (although FPF likely could and would intervene in that suit). So this is a bit different than the typical EpY, in which the state defendant is the state plaintiff. We get to standing after 11th Amendment, perhaps as early as next Tuesday, stay keep this in mind.

You can watch the ad here.

For Monday

Tuesday audio. Non-Article III Reax Papers due at the beginning of class Tuesday.

We continue with Eleventh Amendment/Sovereign Immunity.

Torres v. Texas Dept. of Public Safety is from 2022, showing how the Court has shifted in its approach to abrogation and Article I. 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 besides plain meaning? What is the textual argument for the diversity theory? What 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, what logic explains 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. The next Panel should be ready to go.

We will finish Non-Article III Jurisdiction. What is the interaction between the 7th Amendment question and the Article III/Public Rights question? Consider the following:

    The SEC brings a civil-enforcement action for securities fraud, seeking civil monetary penalties. It chooses to proceed in an agency proceeding before an ALJ.

Valid under Article III? Valid under the 7th Amendment?

What are the drawbacks to non-Article III adjudication, how did Congress try to alleviate those problems, and does it work?

We next turn 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  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. 445-72. 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 to that decision?

For Monday

Tuesday audio. District Court papers due Monday.

We continue with Declaratory Judgments. How is federal-question jurisdiction determined in these anticipatory actions? is there jurisdiction in Skelly, Medimmune, and MGM?

Then move to Non-Article III Courts, including the additional statutes on the blog. Plus, look at the 7th Amendment to the Constitution. 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? How does the 7th Amendment fit these issues? 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? What are the powers and responsibilities of magistrates? What is the purpose of having these as part of the court?

Eleventh Amendment panel should expect to begin on Tuesday of next week.

For Tuesday

Monday audio. District Court papers due next Monday, October 14. Make-up class at lunchtime on Monday, October 21.

How do 3-judge courts resolve objections to EpY? What is it about the cases listed in current § 2284(a) that warrant 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?

What is a declaratory judgment and how does it differ from an injunction? How does the availability of declaratory judgments address the concerns underlying EpY? Again, use the versions of § 2201 and § 2202 from the blog; the versions in the books are incomplete.

Consider possible enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:

    • 2017 MGM mass shooting (complaint on blog): 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. (Note that the stuff that matters for us begins on p. 46 of the complaint; the rest is party identity).

    • Nautilus Ins. Co. provides commercial liability insurance for the Fantasia Hookah Lounge; the policy has an exclusion (does not provide coverage) for assault and battery. During an exchange of gunfire between Fantasia security and an armed patron, Jorge Hernandez sustains injuries.

    • Mottley

    • Medimmune v. Genentech

    • Skelly Oil (discussed in Chemerinsky)

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

For Monday

Tuesday audio. No make-up class on Monday the 14th; it will be on Monday, October 21.

We will finish District Courts; prep Complete Preemption and International Law. Is Rodriguez removable? What is the difference between a jurisdictional grant and a right of action and how does that explain § 1350? How does the Court understand § 1350 and what problems does that interpretation create?

We then turn to EpY/Declaratory/Non-Article III and Panel V. For Monday, prep Three-Judge Courts and Declaratory Judgments. 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? Absent EpY, how do individuals assert individual rights? 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?

Both 3-judge courts and declaratory judgments reflect ways to address objections to and criticisms of EpY--how does each do that and why?

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?

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 (complaint on blog): 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 (on blog)

    • 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?

For Tuesday

Monday audio. Court of Appeals papers due at the beginning of class. Correction on that make-up class: It will be Monday, October 21, not October 14. If a statute is listed as being on the blog, make sure you go to that version for class; the appendices in both books are incomplete or out-of-date, hence the additional provisions.

Prep Arising Under: Arising Under and Complete Preemption. What is the core meaning of "arising under" for Holmes and as expounded in Mims? What is the argument for that narrowest meaning and what is the argument for expanding it in Grable and Gunn? What is the test in Grable and Gunn and why is there jurisdiction (or not) in those cases? How are Grable and Gunn different from Mottley?

What does "jurisdiction" mean, what does "merits" mean, why the difference,  and why does that distinction matter? As another example: Consider that Title VII defines employers (who cannot discriminate) as persons doing business in interstate commerce with 15 or more employees; it defines aggrieved persons (who can sue under the statute) as employees, but not independent contractors. An independent contractor working for a company with 10 employees brings a Title VII action; what is the defect in the case?

What is complete preemption? How does preemption ordinarily work in litigation? How is complete preemption different?