Tuesday audio. We next meet on Tuesday, September 3. I would like to do our first make-up class at lunchtime on Tuesday, September 10.
Panel I reax papers due by 11 a.m. next Tuesday, August 27. You may either place a hard copy in the folder outside my office or email it to my assistant, Carol Estevez (carestev@fiu.edu). Be sure to review the paper requirements and suggestions here.
Also, I am assuming the class is settled and it appears we have 54 people. I will rework the panel assignments and post them later this week. For all panels after SCOTUS, rely on the updated list.
On September 3, we continue with Supreme Court; be sure to read the blog post with Prof. Vladeck's history of certiorari as part of this section. Returning to our discussion of life Tenure: What are the benefits and drawbacks to life tenure? What are the benefits and drawbacks to term limits?What is the argument that good behavior does not require life tenure, considering Federalist No. 78
and the reasons for avoiding temporary commissions? How can term limits, constitutionally, come about? Review the Court-reform proposals (evenly divided Court, Reforming the Court, Biennial Appointments, and lottery); be ready to discuss the benefits, drawbacks, and constitutional concerns for each. What textual objections can there be to each?
On the textual point, think about the meaning of four constitutional phrases and how they affect these proposals. We have discussed two of them: "the judicial power" in Art. III § 1 and Congress's necessary-and-proper power. With respect to SCOTUS in particular, think about two more: "one Supreme Court" in Art. III § 1 and "with such exceptions and under such regulations" as to SCOTUS's appellate jurisdiction in Art. III § 2 cl.2. Think about all of these, what they might mean, and how they might affect the constitutional validity of reform proposals. Also, think about whether Segall's even-Court proposal violates the President's appointment power under Art. II § 2 and how to get around that (see U.S. Const. art. I, § 5 cl.2).
Then move to Original Jurisdiction. What is the difference between original and appellate jurisdiction? What is the difference between exclusive and concurrent jurisdiction? What is within SCOTUS's original jurisdiction and what is within its appellate jurisdiction? What is the source or origin of SCOTUS's jurisdiction? Why put these cases in SCOTUS's original jurisdiction? Why make some of SCOTUS' original jurisdiction exclusive and some concurrent? Concurrent with whom? Why was § 25 of the 1789 invalid in Marbury?
What is the difference between mandatory and discretionary jurisdiction? How has SCOTUS evolved on that, within its appellate jurisdiction? How does the move to virtually all discretionary jurisdiction undermine the rationale for judicial review? What guides the Court in deciding whether to hear a case? Is there a difference between hearing "case or controversies" and hearing "questions?" Is SCOTUS's original jurisdiction mandatory or concurrent? Why? And what are the arguments for and against that? This short essay by Prof. Steve Vladeck offers a nice overview of the evolution of the Court's original jurisdiction, on top of the discussion in Chemerinsky.
