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.

For Tuesday, October 27

Monday audio. Non-Art.III/DJ/EpY papers due tomorrow.

Prep/Review the rest of Eleventh Amendment. We start where we left off: How did PennEast and Torres change what we thought we knew: Subject to Bankruptcy exceptionalism and the consent of the Spending Clause, Congress cannot subject states to suit under its Art. I § 8 powers?

Creative (or desperate) appellate maneuvers

The U.S. sent California a list of people (about 22k) the U.S. says are ineligible to vote but remain on the California voter roles; it asked for an injunction ordering the state to check its voter roles to remove these (and presumably other) names. The U.S. moved for a TRO prohibiting California from proceeding with vote counting until it checks on these voters; it requested an expedited ruling. The court ordered briefing and a hearing by October 27 (early next week), given the complicated nature of the case and the attempted intervention of voting-rights groups.

The U.S. has appealed the court's refusal to immediately rule on the TRO, arguing that the refusal to rule expeditiously constitutes constructive denial of the TRO. Note two big issues here. First, even accepting the government's constructive-denial argument, denial (constructive or otherwise) of an ex parte TRO is not ordinarily appealable. This case might test if anything remains of the TRO/PI distinction for § 1292(a) purposes. Second, the traditional method for challenging district court inaction has been mandamus, with the high standard it carries. You can see why the U.S. would try something less within the court of appeals' discretion.

For Monday, October 26

Tuesday audio. Three-Judge/DJ/Non-Art. III papers due next Tuesday.

Prep the remainder of Eleventh Amendment. We will start with the other facts that define whether an entity is sovereign entitled to immunity. I expect this to take both days next week, with Standing beginning the following week. 

Federal claims or district court?

What we discussed in class yesterday, from the Fourth Circuit.

For Tuesday, October 20

Monday audio.

We will discuss Bankruptcy Courts (which should take about 20 minutes). We then move to Eleventh Amendment. Prep Chemerinsky pp. 395-417, 438-49, and 624-28, along with the Eleventh Amendment itself. Plus, read Galette v. NJT, the Court's most recent statement on sovereign immunity, from last term.

Indian Status as jurisdiction or merits

I posted this case to the Evidence blog because it is largely about whether the defendant's status as an Indian is an element or affirmative defense. But there is an interesting discussion (beginning on p.31) of this as a jurisdictional element and thus whether it goes to the court's jurisdiction or to the merits of the prosecution.