Judge RIchard Posner

I encourage you to read the stories written about Judge Richard Posner, who died yesterday. Posner left the Seventh Circuit in 2017, suffering from Alzheimer's. But as a judge and before that a law professor at University of Chicago, he was the legal giant of the second half of the 20th century and without question one of the two most influential non-SCOTUS federal judges (the other being Learned Hand).

Civ Pro Never Ends, it Just Moves to Fed Courts

The district court denied the BBC's 12(b)(2) and 12(b)(6) in your Civ Pro final--President's Trump's defamation lawsuit over a documentary that spliced together pieces of his January 6, 2021 Ellipse Speech. The court found sufficient minimum contacts because the doc targeted an American (although not Florida) audience and because people in Florida could and did access it through VPN. And the court found he had sufficiently pleaded actual malice, based in part on the BBC's supposed ill will toward Trump.

So how does this move to Fed Courts? BBC likely will seek immediate review. Denial of personal jurisdiction dismissals is a common-and-accepted basis for mandamus. And the jurisdictional analysis here is fairly weak--focusing the effects analysis on the U.S. as a whole rather than Florida, downplaying BBC's efforts to avoid the doc being seen in Florida, and tagging BBC with unlawful action of third parties.

As to the merits, recall that a actual malice means knowledge of falsehood; it has nothing to do with the defendant's animosity or hatred toward the plaintiff. The district court considered and emphasized that animosity (the BBC's supposed history of "unfair" coverage of Trump) in finding actual malice sufficiently pleaded. This arguably conflicts with Eleventh Circuit precedent on the point (the district court downplayed the point, suggesting that circuit precedent conflicted with SCOTUS precedent and purporting to reconcile the two bodies).

This opens two potential roads. First is § 1292(b) certification of the question of law about how to treat allegations of ill-will and personal animosity in the actual malice question (which would bring the entire order before the court of appeals). Second is to seek mandamus on the merits, arguing that the district court got the actual malice analysis so wrong as to warrant immediate review.

When you tell your colleagues to take this class next fall, this may well be an argument case. 

Not moot or an exception?

We had a bit of a conversation Tuesday trying to unravel whether something is an exception to mootness (moot, but not dismissed) or not moot (so no basis to dismiss). Doctrinally it does not matter--either way, the case continues.

Normatively, we want precision, which is why we had the discussion. Note that it only matters for CRER. The voluntary cessation doctrine is expressly not mootness-if government cannot meet the high standard, the case is not moot and remains alive. Floating classes (in response to inherently transitory claims) make the claim not moot--it remains alive as to the class (independent of any individual plaintiff).

So the controversy surrounds CRER.

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.

 Standing papers due Monday. 

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?