Tuesday audio. No make-up class on Monday the 14th; it will be on Monday, October 21.
We will finish District Courts; prep Complete Preemption and International Law. Is Rodriguez removable? What is the difference between a jurisdictional grant and a right of action and how does that explain § 1350? How does the Court understand § 1350 and what problems does that interpretation create?
We then turn to EpY/Declaratory/Non-Article III and Panel V. For Monday, prep Three-Judge Courts and Declaratory Judgments. Begin with Ex parte Young, as discussed in Pfander. What happened in the case and how did it create a new way for constitutional rights to be litigated? Absent EpY, how do individuals assert individual rights? What is the "rule" of EpY and what sorts of lawsuits does it allow. What are the criticisms of this way of adjudicating rights? What are the benefits to the federal rights-holder?
Both 3-judge courts and declaratory judgments reflect ways to address objections to and criticisms of EpY--how does each do that and why?
What is a declaratory judgment and how does it differ from an injunction? Consider the enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:
• 2017 MGM mass shooting (complaint on blog): Victims have tort claims against MGM; MGM believes it is protected by a federal statute immunizing property owners from claims arising from terrorist activities. The statute provides a federal right of action against the third-party hired by the property owner to provide security services; no claim lies against the property owner.
• I insures Dr. X against malpractice; Dr. X injures A, one of his patients.
• Mottley
• Medimmune v. Genentech (on blog)
• Skelly Oil (discussed in Chemerinsky)
How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?
Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?
