Oral arguments

Here, divided by argument. The last case was cut-off; sorry William and Sebastian.

Also: The Sixth Circuit had affirmed class certification in the GM suit; the court granted rehearing en banc.

Preparation for Arguments

A couple of things as you finish exams and begin prepping for arguments:

1) Please take some time to listen to actual arguments, wither at www.oyez.org or www.supremecourt.gov. I want these to sound more like real arguments than moot court. Reveiw the Order on Procedure.

2) We have 27 cases to get through on the schedule of cases. I plan to front-load Wednesday so we can finish earlier on Thursday. So my hope is to get through 17 cases (through Festeryga) on Wednesday and the remaining 9 on Thursday, allowing us to finish the semester early afternoon. 

3) If both of your arguments will be on Day One or Day Two, you need not dress up for the other day.

4) Note that Make Your Life Epic and Martinez (consolidated) came out different ways below. So Gill represents the petitioner in Make Your Life and respondent in Martinez (arguing in favor of appealability); Sunny represents respondent in MYL and petitioner in Martinez (arguing against appealability).

5) Reminder that petitioner is the party that lost in the court of appeals, regardless of who was plaintiff in the district court or who was appellant in the lower-court cases.

Timing retirements (from Eduardo)

Two district judges rescinded their announced plans to take senior status following the election of Donald Trump. Mitch McConnell is not pleased.

Whether McConnell (who held open a SCOTUS seat for more than a year to manipulate who would fill it) has standing to complain about gamesmanship is up for debate. But recall the criticism of life tenure (and a reason to even appointments) as to SCOTUS has been justices manipulating retirements. This shows (and there are other examples) how the problem is not limited to SCOTUS but has trickled to lower courts.

Arguments, Dec. 18-19

Order on Procedure and Schedule of Arguments.

Please let me know if you have food needs (Kosher, Hallal, vegan, vegetarian, etc.).

Everyone will be there for all arguments both days.

Final Class

Final class audio.

Abstention and Congressional Control papers due at the beginning of arguments on December 18.

The argument schedule and procedure order have been posted.

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.