Monday audio. Panel I papers due at the beginning of class tomorrow. I will answer new questions about argument assignments at the beginning of class. Double session tomorrow; we will take a break from 12:15-12:30, then go until 1:45. My hope is to finish (or just about finish) SCOTUS tomorrow. Courts of Appeals should be ready to go next Monday.
Check out this column from Prof. Vladeck on the Court's shrinking docket (the Court decided fewer than 60 merits cases last Term) and Justice Gorsuch's suggestion that the Court grants fewer cases because fewer parties seek cert. It also makes some important points about review under § 1257 as opposed to § 1254.
Some elaboration about Congress's power to except jurisdiction by negative implication. This is a theoretical point that does not make a practical difference in most cases. But it is important to understanding the scope of congressional control over SCOTUS under the exceptions-and-regulations clause and the meaning of the "in all other cases" language.Take a simple example:
Art. III § 2 cl.1 says the judicial power extends to A,B, C, and D. "In all other cases" means SCOTUS has appellate jurisdiction over A, B, C, and D, subject to congressional exception. If Congress does not wants SCOTUS to have jurisdiction in D, how could it write the statute? It could say "Congress shall not have jurisdiction over D"--clearly an exercise of the exceptions power. Or it could say "Congress shall have jurisdiction over A, B, C." That sounds like Congress granting jurisdiction, which it cannot do as to SCOTUS (because of "in all other cases"). So we say that, although written as a grant, this statute is an exception as to D by negative implication--by not mentioning it, it excluded it from SCOTUS jurisdiction.Prep the rest of SCOTUS, covering Review of State Courts and Review of Courts of Appeals. Compare and contrast the pre-1988 version of § 1257 (on the Blog) with the current version. Can federal courts review state court's constitutional decisions and why? What can SCOTUS review from a state court and why? What makes a state-law ground "independent and adequate" and what are some examples of such grounds? How does the distinction between judgments and opinions (discussed the first week) play into I&A? What are the different approaches to dealing with mixed federal/state cases, culminating in Michigan v. Long; what are the benefits and drawbacks to each approach (see the Pfander discussion of Long)? When is a judgment or decree "final?" As a policy matter, why limit review to finality? What should finality mean something different for SCOTUS reviewing a state court?
What is not required for SCOTUS review of federal courts under § 1254? Does SCOTUS have any mandatory appellate jurisdiction? When will SCOTUS review decisions from courts of appeals?
