For Monday, November 16

Tuesday audio. Double session on Monday--11:05-12:20; 12:30-1:45. I will get argument assignments at the beginning of class; please talk with your colleagues before class.

We will have a few final words about Mootness. How do political considerations affect justiciability? How does justiciability function as a tool of constitutional avoidance? What happens if a district court enters a judgment, then the case becomes moot while on appeal?

Prep all of Abstention; we will cover all or most of that in the two Monday sessions. Read the Pfander sections on Pullman and equitable restraint; we will do a brief overview of them.

Paper Schedule: We will finish Mootness Monday and papers will be due on Monday, November 23 (final class). If we finish Abstention Monday, those papers will be due on Monday, November 23; if not, those papers will be due when you arrive for oral arguments on December 17. Congressional Control papers will be due when you arrive for oral arguments on December 17.

 

For Tuesday, November 10

Monday audio. Thank you for attending the lecture.

Here is the order in the challenge to the Arc de Trump. The plaintiffs in one action are DC and Virginia; the opinion offers some good analysis of the type of injuries states and municipalities can assert. We will do some final questions (if any) on Standing.

We now move to Ripeness/Mootness. Read the Pfander pages are Ripeness, then really focus on all the reading on mootness. 

Also: Please meet with you co-justice and opposing counsel before the start of class next Monday to decide who will be Chief and who will represent which side. 

Vladeck on the effects of the midterms on the courts

SCOTUS and the lower courts (especially district courts).

Make-up Class (Amended)

12:30-1:45 next Monday, November 16, in RDB 2007.

For Monday, November 9

Tuesday audio. Remember the Judicial Lecture will take place at 12:30 p.m. next Monday, November 9 in the Large Courtroom; class participation points awarded.

Prep Taxpayer Standing and Third-Party Standing. We begin where we left off: If separation of powers cannot explain standing doctrine, what other principles or policies might?

I hope to get to Mootness on Tuesday. 

Settlement in Menocal v. GEO Group

Less than a year after remand from SCOTUS (which basically told GEO it had to stand trial) and on the eve of trial.

For Tuesday, November 3

Monday audio. 11th Am papers due next Monday.

Continue with Constitutional Bases, then prep Taxpayer Standing.

Here is the order dismissing for lack of standing in US v. Alaska; you can see the court's standing analysis.

And for fun, here is the US's Notice of Appeal. See any problems with it?

Judicial Lecture w/ Judge Emil Bove III

 Monday, November 9

For Monday, November 2

Tuesday audio. 

We will finish Eleventh Amendment. We will start where we left off: What is the argument that EpY is not a legal fiction but an inherent and necessary part of sovereign immunity--built into SI'S principle that the sovereign cannot be sued eo nomine? Also consider the following:

   Plaintiff is fired from a job as deputy prison warden. He brings an action against the Superintendent of Prisons, who made the firing decision. Can he obtain the following remedies if he prevails on the merits?

       • Damages for pain and suffering

      • Reinstatement (which will include future salary once back at work

     • Backpay (an equitable remedy, recovering the wages he would have earned between the firing and the judgment

    • Front pay in lieu of reinstatement (because reinstatement is not feasible, a monetary award of the wages he would have earned had he been reinstated, for a short period)

    • Attorney's fees (available as a prevailing party under civil rights laws)

Then move to Standing: Constitutional and Statutory Considerations. This will take as through the end of class on Tuesday; go ahead and prep the entire thing.

No appellate jurisdiction in California case

So says a divided Ninth Circuit panel. Note, however, that the Court did not reject it on the simple "TRO's are not appealable" grounds. Instead, the issue was whether the district court's inaction (he ordered briefing and argument for about five days later) rose to the level of a constructive denial of an injunction.

A prof at another school argues this opinion--regardless of the outcome--reflects the fraying of the long-standing proposition that TROs are not appealable, at least when this Administration seeks review. He links that fraying with SCOTUS's increased use of the Shadow/Interim/Emergency/Voldemort Docket.