For Final Class

Make-up audio. Apologies that the regular class did not record. Abstention papers due at the beginning of arguments.

We continue with Plaut and the new separation of powers principle the Court announced. What does 
"finality" mean for Plaut and Article III purposes?Can that square with FRCP 60(b)?

We will spend the rest of the class considering different examples of Congress regulating the Court and whether those impermissibly invade the "judicial power." Read the scholarly debates over jurisdiction stripping; although we will not discuss this, it informs much of our conversation. In addition to the Chief's Letter and the proposed bills on the blog, consider the constitutional validity of the following:

    • Believing opinions are too long and thus impenetrable for ordinary citizens, Congress enacts a law limiting majority opinions to 7500 words, dissents to 5000 words, and concurrences to 2500 words.

    • In resolving a case, the court shall:

        • Issue one per curiam (for the Court, no named author) opinion representing the judgment of the Court and the opinion of a majority. It shall not indicate vote counts.

        • No justice shall write a separate opinion.

        • If a majority of the Court cannot agree on a rationale for a judgment, the Court shall issue an order summarily affirming or reversing, with no opinion and not establishing precedent.

    • Congress enacts a code of ethics binding on SCOTUS.

    • Congress refuses to appropriate money for the courts in a given year, other than to pay the salaries of all Article III judges.

For all of these, consider whether the answer as to the permissibility differs for SCOTUS than for lower courts. If so, what makes SCOTUS different and does that difference justify or require different treatment on these matters?

For Tuesday (Double Session)

Monday audio. Double session tomorrow. Mootness papers due tomorrow. I will get argument assignments at the start of class tomorrow. The sections on Abstention (statutory and Colorado) will be combined for purposes of papers; you can write on either section (including the stuff we covered only in cursory fashion, although you must get beyond the broad picture) and all will be due the day of arguments.

What are the factors to balance for international comity abstention? How can both sides (the party seeking abstention and the party opposing abstention) use Colorado? What is international comity abstention?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction and why? What different approaches might the court take, considering abstention and § 2283?

Move to Congressional Control: When Does Congress Decide a Case. Please have all statutory provisions in class. In addition to the listed provisions, look at § 324 of the 2023 debt ceiling bill (p.39 of document), the No Kings Act, the Congressional Accountability for Judicial Activist Act, and Title II of the Constitution Restoration Act and consider their validity under Klein . What proposition(s) does Klein stand for? Consider whether there are Klein problems in Bank Markazi, Patchak, the Protection of Lawful Arms in Commerce Act, and the two provisions above? What if Title II of the Constitution Restoration Act applied to statutory claims? Was there a Klein problem in Plaut? What is the distinct constitutional principle the Court adopted there? What makes a law retroactive and what limits are there on retroactivity?

For Monday

Tuesday audio. Double session on Tuesday as advance make-up for the Tuesday before Thanksgiving.

We will continue with the current panel for § 2283 and the tax injunction acts (§§ 1341 and 7421); be sure to review § 2201 and § 1983. What does "expressly authorized" mean in § 2283? Why does § 1983 constitute an exception and why does § 16 of the Clayton Act (in Vendo) not?

What is the purpose of the tax injunction acts? How does a person challenge a constitutionally invalid state or federal tax? What constitutes a tax subject to the statutes? What if a party seeks a declaratory judgment that a tax is invalid, rather than an injunction?

We will move to the next panel and the judge-made abstention doctrines (Colorado, Burford, and international comity). What are the elements of each of these? What are the similarities between Colorado River and international comity abstention? What factors and principles do courts balance as to each?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction?

Finally, Pullman and Younger abstentions are the most frequently litigated judge-made abstention doctrines. But they arise exclusively in constitutional cases, so for space reasons I move them into Civil Rights next semester. I want to spend a few minutes reviewing each, so you have a basic idea of what is going on. So read the (short) Pfander sections on Pullman (pp. 363-69) and Younger (pp. 371-81).

Understanding Sovereign Immunity

I saw some common problems with the Eleventh Amendment papers and wanted to comment on them.

1) You cannot make a pure consequentialist argument against sovereign immunity ("this keeps people from recovering and limits accountability, therefore bad") without acknowledging the many ways in which states can be held to account--abrogation, waiver, EpY, US enforcement. You can argue these are inadequate, but you must address them.

2) Many of you conflated the diversity theory with the plain meaning theory. The difference matters if you want people to be able to recover from states for violations of federal law. A SC citizen could not recover for an ADA violation by Georgia on plain meaning; she could under diversity. Does that matter? Is that distinction warranted as a policy matter?

3) Remember that states are subject to federal law. They just aren't subject to private suit (subject to all the limits on SI in # 1). Too many of you said states were no longer subject to federal law and stopped.

Standing Puzzle

From the Sixth Circuit. Plaintiffs sued the Michigan governor and AG to challenge the structure of the state Court of Claims (the court for money suits against the state, including by public emplyees). The court is staffed with judges from the state court of appeals, which also hears appeals from the court; they argued that plaintiffs are disadvantaged by court of appeals judges reviewing the work of their colleagues. (Note a similar argument was made against the old Circuit Courts in the "riding circuit" days). The court found no standing because any injuries (in a specific case or generally) are not fairly traceable to the governor or AG or redressable by a remedy against them.

The decision intersects with other areas in this class and in Civil Rights. There is some discussion of suing in individual rather than official capacities. And although the court did not take this path, it also could have resolved this on 11th Amendment grounds that the AG and Governor are not the responsible executive officers and so not proper EpY defendants. It also shows the general problem of challenging the structure of courts and court systems, from the point of standing (apart from having the wrong defendants, any future injury from the court is speculative) and other doctrines (such as abstention) that we will get into later.

What should these plaintiffs do if they believe the state judicial system violates due process?

For Tuesday

Tuesday audio. No class Monday. Standing Papers due Tuesday. Judicial Lecture with Judge Abudu at 12:30 on Tuesday.

One last word on standing. Many have commented on what we can call the "ideological drift" of standing. Narrow standing came from conservative courts attempting to reign-in progressive litigation on issues such as consumer protection, environmental protection, and constitutional rights (especially equal protection); the left decried the rules while the right celebrated them. That dynamic arguably has flipped--the right decries narrow standing as it engages in more constitutional litigation (e.g., Hippocratic Medicine or the jawboning case) and the left seeks to defeat claims on standing grounds. Similarly, conservative Justices have become more likely to find standing (at least in certain cases), with liberal Justices railing about the Court abandoning the judicial role. We see that in the reactions to Biden v. Nebraska, 303 Creative, and other cases. This article by Richard Re (University of Virginia) argues that progressive reaction to 303 reflects the left's potential abandonment of pre-enforcement constitutional litigation.

We continue with Mootness. How does the pick-off technique in Campbell interact with mootness? What is the argument that Campbell has nothing to do with mootness? When does voluntary cessation moot a case--consider mootness when 1) a statute is repealed, 2) a regulation is repealed, 3) an internal departmental policy is changed, 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable, 5) government removes plaintiff from the No-Fly List and states he will not be added in the future based on currently available information.

Can a party avoid mootness of his prospective claim by seeking nominal damages?

What is the problem with, as Pfander suggests, courts considering the merits of a case (or class of cases) in deciding how strictly to apply justiciability?

Read Chemerinsky's discussion (p.157) of Pap's. Why might the Court have been reluctant to find the case moot? 

Finally, please confer with your opposing counsel to decide who will represent which side and with your co-justice to decide who will serve as Chief. I will gather this before class on Monday, Nov. 18.

For Tuesday

Monday audio.

We will skip State Standing; so just review Associational and Organizational Standing. What is the difference between them and between third-party standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

Then move to Ripeness/Mootness and our next panel. Why have ripeness and standing collapsed onto one another? Mootness is described as "standing set in a time frame;" what does that mean? What is the standard for mootness? What sorts of things can happen that cause a case to become moot? How can parties overcome mootness? Why was there no mootness in Campbell? What is the argument that Campbell has nothing to do with mootness? Have a look at FRCP 23(a) and (b)(2).

SCOTUS Appointments by President

Charts in this post by Prof. Vladeck. One chart shows an average of appointments per Term, one goes in chronological order.

Another Removability Puzzle (Updated)

The Philadelphia DA brought a state-law civil nuisance action against Elon Musk and his PAC, alleging they were engaging in unlawful activities relating to voting and the election (it's the $ 1 million giveaway to people who vote, which the state argues is an illegal lottery). Musk and the PAC removed on two theories:

1) The case arises under under Grable/Gunn because the PAC's activities are First Amendment protected and the case is about the presidential election, which creates a federal issue and federal interest within the state claim. This seems to take a broad perspective on when a federal issue is embedded, as opposed to being a defense or presenting federal concerns. The logic of the removal argument might federalize an assault that happens at the polling place.

2) There is diversity jurisdiction because the DA is not acting as the Commonwealth but in his individual capacity, making him a citizen of Pennsylvania (and Musk and the PAC are not). This argument relies on a distinction between a DA bringing a criminal case and a DA bringing a civil case, although that distinction appears to be about control over enforcement, not about whether a DA enforcing state law ceases to act as the state.

Update: That did not take long. The state filed an emergency motion for remand, asking the court to move quickly because of the looming election. Here is the order remanding and here is a short opinion explaining that 1) the DA acts for the Commonwealth and thus the state (not a citizen) is the party and 2) there is no federal issue that must be resolved or proven for the Commonwealth to prove its claim and the federal "context" (that it surrounds or effects an election) is insufficient for Grable. Musk only sought removal under § 1441, so this order is not reviewable.

This course in a nutshell

I said on the first day of class that much of what you see in the news relates to this course. That is especially true in presidential election years.

This Fourth Circuit decision is its own Fed Courts class. The RNC sued in state court, challenging the state' failure to clear voter roles as violating federal law and the state constitution; the state officials and the DNC as intervening defendant removed. The Fourth Circuit held that the case was properly removed. The whole thing is 40 pages long, but worth a read. It features:

    • Embedded federal issues under Grable and Gunn.

    •  § 1443(2) civil rights removal and when a law provides for racial equality.

    • Organizational and associational standing, the difference between them, and the limits Hippocratic Medicine might have imposed on both. (The concurring opinion discussing standing is only 8 pages--I recommend reading it as preparation for our discussion on Monday).

For Monday

Tuesday audio. 11th Amendment papers due Monday.

• On what basis might the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

Prep Taxpayer Standing and Third-Party Standing for Monday; we will get to State Standing on Tuesday.

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a US-citizen father to pass citizenship to his child compared with a US-citizen mother. (In other words, the Man would have been a US citizen from birth had his mother been a US citizen, but was not a US citizen from birth because his father was a US citizen).

• What is First Amendment overbreadth? How can you explain it as a standing doctrine and how can you explain it as a substantive constitutional doctrine?

• What is the difference between organizational standing and associational standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

We will get to State Standing on Tuesday, then move to the next panel on Mootness and Ripeness.

For Tuesday

Monday audio--Part I, Part II. 11th Amendment papers due next Monday.

We continue with Considerations. It came up during break but bears emphasis: Why was there standing in

    • What are the principles, purposes, or policies underlying standing and how do they explain the doctrine? If not separation of powers, what else is going on? What is the argument that each does not, in fact, explain the doctrine? What is the best explanation? What is "adverseness" and how does it fit into the standing analysis?

    • What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See Judge Newsom's concurrence in Sierra and the discussion of Prof. Fletcher.

    • On what basis might the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

    • If standing comes from Article III, what happens in state court? Suppose the TransUnion filed suit in state court in a state with different standing requirements and the state courts adjudicated the claims? Could the losing party appeal to SCOTUS?

Prep Taxpayer Standing and Third-Party Standing (leave State Standing for next week)

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a father to pass citizenship compared with mother.

 

Ongoing standing controversy

A district court issue a TRO in response to letters from the Florida Department of Health threatening to prosecute tv stations if they ran an ad supporting Amendment 4.

We will not discuss in class, but this may offer a nice subject for a reaction paper. In particular, looking at what the state did, who the plaintiffs are, and the different theories of standing, did the court get the standing analysis right?

Federal Officer Removal

Two Eleventh Circuit decisions rejecting federal-officer removal of the Georgia prosecutions related to the 2020 election--one attempt by former assistant AG Jeffrey Clark and one by a group of fake electors. Check out Judge Rosenbaum in the latter case: "Defendants were no more presidential Electors simply because they give themselves the title than Martin Sheen was ever the President because he went by President Bartlet. See generally The West Wing (NBC television broadcast Sept. 22, 1999).

One more standing case to consider

Last term's decision in FDA v. Alliance for Hippocratic Medicine, a challenge by a group of doctors and a medical association to permit and expand use of mifepristone, one of the drugs used for medication/non-surgical abortions.

The doctors claimed the following possible injuries:

• Moral and ideological objections to the broader availability of the drug.

• Conscience objections to having to treat (including by completing a surgical abortion) patients who suffer complications or side effects of the drug. (It appears that a separate law prohibits doctors from being compelled to perform abortions contrary to conscience)

• Economic injury from having to spend more time and money treating patients suffering side effects.

The association claimed injury from having to spend money opposing mifepristone access, such as by lobbying, conducting studies, and engaging in public advocacy and education.

For Monday, be ready to discuss the doctors' standing and what makes the challenge unusual.

For Monday (Double Session)

Tuesday audio. Double session next Monday, October 28.

We will finish 11th Amendment.

Consider:

    A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:

        • Damages for pain and suffering

        • Reinstatement to his job

        • Backpay (wages he would have earned from his wrongful firing until the point of judgment)

        • Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)

Consider the following:

    New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.

    (Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).

Also, have a look at Free Speech Coalition v. Anderson, from the 10th Circuit; it illustrates the problems we discussed of identifying the "responsible executive officer" in trying to bring an EpY action. This was a challenge to a state law requiring porn sites to adopt procedures for age verification. The law adopts private enforcement as its main enforcement scheme (following in the footsteps of the Texas abortion law), identifying one form of verification (an electronic drivers' license, issued by the Department of Public Safety). Everyone agrees the AG's general enforcement power did not do it, since the statute identifies a different officer to enforce. The panel divided over the action against the Commissioner of the Department of Public Safety, mainly over the source of his power.

Move to Standing; prep Constitutional and Statutory Considerations; in addition to the cases listed, focus on TransUnion (discussed in Pfander) and SpokeO (discussed in both). Also read pp. 40-49 of Sierra.

What are the elements and types of standing? What are the supposed purposes of standing and why do they justify (or not) the doctrine? How does standing connect with the merits--and what is the argument that what we call standing is really about the merits? Consider:

    • What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech Act?"

    • Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation to purchase remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing to challenge the validity of the must-purchase requirement?

    • What is the difference between "certainly impending" and "substantial risk" for pre-enforcement standing? When does Driehaus say a risk of enforcement is sufficiently imminent? Can you reconcile Clapper and Driehaus in terms of imminence?

    • Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies who discriminate on the basis of race), and Clapper (challenging a law authorizing warrantless surveillance)

    • What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine? What is the best explanation?

    • What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?

    • What is the connection between standing and merits? See Judge Newsom's concurrence in Sierra.

    • On what basis should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

    • Is there standing in the following case: A, a website and graphic designer, wants to begin designing web sites for weddings. She has laid the groundwork for those plans, including mock-ups of the sites she would design, although she has never designed (or been asked to design) a site for a couple. State law prohibits discrimination in places of public accommodation because of sexual orientation. A has ideological and religious objections to same-sex marriage and would not want to tell on her web-site the story of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.

    • What about the following case: A operates a restaurant and wants to begin hosting a family drag brunch. Although she has never hosted any life performances (much less drag shows), she has laid the groundwork, including speaking with performers and a band and planning to renovate the space to accommodate a performance area. State law prohibits drag performances in front of children; a business can lose its liquor license.

For Tuesday

Monday audio. EPY/Non-Article III papers due tomorrow.

No new reading and no new panel. We should finish Eleventh Amendment tomorrow and move to Standing next Monday.

    • Why is abrogation permissible under § 5 (and the other post-Civil War amendments)? What are the limits on § 5 abrogation? Consider modern civil rights statutes, which allow abrogation and which do not and how can you explain the different results?

    • Consider whether the following ADA claims can be brought in federal court in the following cases:

        • A, an employee of a private law firm, is fired because of a disability.

        • B, an employee of the City of Coral Gables Legal Counsel, is fired because of a disability.

        • C, an employee of the Office of the Florida Attorney General, is fired because of a disability.

    • What is the connection between Ex parte Young and the Eleventh Amendment? If the lawsuit was against the Office of Attorney General Young, why didn't sovereign immunity apply?

    • In what way(s) is EPY a "legal fiction" and in what ways can we says it actually is consistent with principles of sovereign immunity? How does EPY lend new meaning to "the King can do no wrong?"

    • What two things must be true for a claim to fall within the "Ex parte Young exception" to the Eleventh Amendment?

    A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:

        • Damages for pain and suffering

        • Reinstatement to his job

        • Backpay (wages he would have earned from his wrongful firing until the point of judgment)

        • Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)

Consider the following:

    New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.

    (Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).

 

Yet More Appealability

The Fifth Circuit allowed collateral-order doctrine appeal of an order compelling Media Matters (an advocacy group) to disclose its donors and funding. (Only for purposes of a stay of the order pending appeal). While recognizing that COD ordinarily does not cover discovery orders, especially after Mohawk, the court relied on a separate line of precedent applying COD to non-final orders that arguably infringe on First Amendment rights.

This should be setting off bells to whoever has Moody Bible for arguments.

More appealability

Actress Gina Carano (formerly on the Mandalorian) sued Disney for firing her from the show in response to her political views. The district court denied a 12(b)(6) several weeks ago. Yesterday the court denied Disney's motion to certify under § 1292(b). A nice illustration of the analysis of that question, especially for what qualifies as a question of law.

Query whether Disney attempts mandamus. It is not implausible--Disney's basic argument is that it is an expressive organization and thus has its own First Amendment rights that it can protect by deciding who acts in its (inherently expressive) tv shows.

Lesson: It is not so simple as finality.

FIU Law Votes, Tuesday, October 22 (Right After Class)

 

Ex parte Young in action (Updated)

I am sure most of you have been following efforts of the Florida government to oppose Amendment 4.

The most recent controversy surround an ad titled "Caroline;"it features a pregnant woman with terminal cancer who wanted to terminate her 20+-week pregnancy to receive life-extending (but not life-saving care) and states that she could not obtain that abortion under current Florida law (but could under the law Amendment 4 would create). The state responded by sending letter to several tv stations demanding they stop running the ad; because they insist the statement that Caroline could not receive an abortion is false, they threatened  prosecution or civil enforcement for public nuisance for making false statements that could injure the public. Recent reports state that the state has hired private law firms to pursue these cases. Floridians Protecting Freedom, the initiative sponsor, filed an EpY/§ 1983 action against the state surgeon general and the lawyer who signed the letter to the tv stations, seeking a declaration that threats violate the First Amendment (and, necessarily, a declaration that the ad is constitutionally protected).

This reflects EpY in action. Rather than wait for state enforcement--and knowing that they suffer harm in the interim should any tv stations yield to the threat and pull the ads--they take the offensive and go to (federal) court first.

The case raises some interesting issues beyond EpY, namely standing (. The state directed the threats at the tv stations and the tv stations would be the targets of any enforcement action (although FPF likely could and would intervene in that suit). So this is a bit different than the typical EpY, in which the state defendant is the state plaintiff. We get to standing after 11th Amendment, perhaps as early as next Tuesday, stay keep this in mind.

You can watch the ad here.

Update: That was fast. The standing analysis begins on p.4; it will make more sense in a couple weeks. For purposes of what we already have covered, note that the order is styled a TRO and expires in 14 days and thus us not immediately reviewable. But it issued following adversarial proceedings, albeit fast and limited. It is possible that, should the state attempt to appeal, the 11th Circuit might treat it as a preliminary injunction.

Also, a PR moment: The lawyer who wrote the letter quit, loudly (contains link to a paywalled Herald article, if you have subscription)--"A man is nothing without his conscience. It has become clear in recent days that I cannot join you on the road that lies before the agency." Note that this course was obvious before and while he was writing that letter. And resigning after the fact did not stop him from getting sued.

For Monday

Tuesday audio. Non-Article III Reax Papers due at the beginning of class Tuesday.

We continue with Eleventh Amendment/Sovereign Immunity.

Torres v. Texas Dept. of Public Safety is from 2022, showing how the Court has shifted in its approach to abrogation and Article I. Read at least Justice Breyer's majority opinion. Then read the remainder of the assigned pages in both treatises.

What are the competing theories of the Eleventh Amendment's meaning besides plain meaning? What is the textual argument for the diversity theory? What are the purposes of sovereign immunity--what does it hope to achieve? What does immunity protect states from and what does it not protect them from? What is abrogation and when can Congress abrogate or not? How does abrogation relate to and depart from the concept of the "plan of the Convention" before and after PennEast and Torres? What are the "structural safeguards of federalism" and how does that explain abrogation? Looking at what abrogation has been allowed for modern civil rights statutes under § 5, what logic explains the different outcomes? Can Congress subject states to suit under the Spending Clause and why, if it is a § 8 power?

For Tuesday

Monday audio. The next Panel should be ready to go.

We will finish Non-Article III Jurisdiction. What is the interaction between the 7th Amendment question and the Article III/Public Rights question? Consider the following:

    The SEC brings a civil-enforcement action for securities fraud, seeking civil monetary penalties. It chooses to proceed in an agency proceeding before an ALJ.

Valid under Article III? Valid under the 7th Amendment?

What are the drawbacks to non-Article III adjudication, how did Congress try to alleviate those problems, and does it work?

We next turn to Magistrates, with a detailed focus on § 636, and Bankruptcy Courts. For bankruptcy, look at 28 U.S.C. § 157 and 28 U.S.C. § 158, which establish the process for bankruptcy cases (somewhat similar to magistrates). As to both, what is the connection between the non-Article III adjudicator and the Article III district judge?

We  Eleventh Amendment and the next panel. For tomorrow, we will touch on the background to sovereign immunity and the Eleventh Amendment. Read the Amendment, along with Pfander pp. 249-56 and Chemerinsky pp. 445-72. What are the competing theories of the Eleventh Amendment's meaning? Where does sovereign immunity come from and what is its purpose? What does it mean to say "The king can do no wrong?" What happened in Chisholm and how did the Eleventh Amendment respond to that decision?

For Monday

Tuesday audio. District Court papers due Monday.

We continue with Declaratory Judgments. How is federal-question jurisdiction determined in these anticipatory actions? is there jurisdiction in Skelly, Medimmune, and MGM?

Then move to Non-Article III Courts, including the additional statutes on the blog. Plus, look at the 7th Amendment to the Constitution. What do we mean by "non-Article III courts?" What are the four types of non-Article III bodies? What is the public rights doctrine and how does it explain non-Article III jurisdiction? How does the 7th Amendment fit these issues? What is the argument, grounded in Marbury, for and against SCOTUS power to review the Court of Appeals for the Armed Forces? Would it be different if review was in the courts of appeals? What are the powers and responsibilities of magistrates? What is the purpose of having these as part of the court?

Eleventh Amendment panel should expect to begin on Tuesday of next week.

For Tuesday

Monday audio. District Court papers due next Monday, October 14. Make-up class at lunchtime on Monday, October 21.

How do 3-judge courts resolve objections to EpY? What is it about the cases listed in current § 2284(a) that warrant 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, and why?

What is a declaratory judgment and how does it differ from an injunction? How does the availability of declaratory judgments address the concerns underlying EpY? Again, use the versions of § 2201 and § 2202 from the blog; the versions in the books are incomplete.

Consider possible 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. (Note that the stuff that matters for us begins on p. 46 of the complaint; the rest is party identity).

    • Nautilus Ins. Co. provides commercial liability insurance for the Fantasia Hookah Lounge; the policy has an exclusion (does not provide coverage) for assault and battery. During an exchange of gunfire between Fantasia security and an armed patron, Jorge Hernandez sustains injuries.

    • Mottley

    • Medimmune v. Genentech

    • Skelly Oil (discussed in Chemerinsky)

How is federal-question jurisdiction determined in these anticipatory actions and is there federal-question 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?

For Monday

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 the complete process for 3-judge courts in § 2284(b), Shapiro, and § 1253? Why allow those 3 classes of cases to still be heard by 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, 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?

For Tuesday

Monday audio. Court of Appeals papers due at the beginning of class. Correction on that make-up class: It will be Monday, October 21, not October 14. If a statute is listed as being on the blog, make sure you go to that version for class; the appendices in both books are incomplete or out-of-date, hence the additional provisions.

Prep Arising Under: Arising Under and Complete Preemption. What is the core meaning of "arising under" for Holmes and as expounded in Mims? What is the argument for that narrowest meaning and what is the argument for expanding it in Grable and Gunn? What is the test in Grable and Gunn and why is there jurisdiction (or not) in those cases? How are Grable and Gunn different from Mottley?

What does "jurisdiction" mean, what does "merits" mean, why the difference,  and why does that distinction matter? As another example: Consider that Title VII defines employers (who cannot discriminate) as persons doing business in interstate commerce with 15 or more employees; it defines aggrieved persons (who can sue under the statute) as employees, but not independent contractors. An independent contractor working for a company with 10 employees brings a Title VII action; what is the defect in the case?

What is complete preemption? How does preemption ordinarily work in litigation? How is complete preemption different?

For Monday

Tuesday audio. Court of Appeals papers due Tuesday. Our final make-up (hopefully) will be Monday, October 14.

We discussed the benefits of the WPC; what are the drawbacks or criticisms of the WPC, especially given the purposes of federal question jurisdiction (uniformity, expertise, respect)? When is district court jurisdiction exclusion and when concurrent and why?

What is the purpose of allowing removal (of, by definition, state-law cases) under § 1442 and § 1443--why allow removal in these situations and what do they cover? Review §§ 1455, 1446, and 1447 on the process of removal, including appealability of remand. When a defendant files a notice of removal, where is the case? What happens then?

How would removal and resolution work (if at all) for the following actions in state court, in light of § 1441 and § 1454:

    1) A sues X on state law claims; X asserts a counterclaim for Trademark infringement

    2) A sues X on state law claims; X asserts a counterclaim for antitrust violations

    3) A sues X on state law claims; X asserts a counterclaim for Copyright infringement

Consider the following: A sues X in state court; X removes under § 1441(a) (arguing the case arises under federal law) and § 1442(a)(1) (arguing that it operated under control of the federal government); the district court remands, finding removal improper under either statute. Can X appeal the § 1442 determination, the § 1441 determination, both, or neither? What's the key language in § 1447(d) that leads to that conclusion.

Prep all of Arising Under. When does an action on the face of the WPC arise under federal law, under Mims and American Well Works? Why extend it beyond that core? How is the core expanded in Grable and Gunn?

Mandamus in Action

The United States sued Texas over Texas placing barriers (such as barbed wire) in navigable waters to try to keep people from coming into the state from Mexico. Texas requested a jury trial, then sought mandamus of the denial. The Fifth Circuit denied the writ. It performed the Seventh Amendment analysis to conclude that Texas did not have a right to a jury trial in this case, much less a "clear and indisputable" right, and thus denied the writ.

Note what it confirms from our discussion: The three-prong test (p.4) and the common application of mandamus for denial of jury trials. Note also the caption of the case--we will discuss tomorrow.

Certiorari, Immediate Review, and Same Sex Marriage

Prof. Vladeck offers a history of the activities leading to Obergefell. In particular, the fact that SCOTUS--months prior to Obergefell--denied cert in a bunch of cases in which lower courts had declared state bans invalid; in doing so, it ensured marriage equality in those states and in other states within each circuit, without addressing or resolving the constitutional issue.

It illustrates a couple of things we have been discussing:

1) The immediate reviewability of decisions regarding injunctions under § 1292(a)(1). In each of these cases, plaintiffs (couples denied marriage licenses or some other state recognition of their marriage) sued and asked for a preliminary injunction prohibiting enforcement of the ban and ordering that they be given licenses. That preliminary injunction decision was immediately reviewable.

2) Because the PI decisions were not stayed, however, plaintiffs received licenses. By the time SCOTUS heard Obergefell, it was in a bind. Thousands of same-sex couples received licenses as a result of lower-court orders. If Obergefell came out the other way and states could again enforce these bans, no one knows what would have happened with those licenses.

3) Cert denials (and discretionary jurisdiction generally) give a lot of power to courts of appeals. Despite the loose talk about SCOTUS being the final arbiter of the Constitution or federal law, most cases never reach SCOTUS and most issues end (at least for awhile) in the courts of appeals.

4) Vladeck does not say this, but: Had the Sixth Circuit not made its move, it is possible marriage equality would have come to pass without SCOTUS intervention.

5) I encourage you to subscribe to Prof. Vladeck's Substack. It is free and offers great and digestible summaries of much of what we are doing here.

For Tuesday

Monday audio.

What is the process for seeking mandamus? What type of jurisdiction is being exercised there and why? When the FBI seized classified documents from Donald Trump at Mar-a-Lago, Trump filed a civil action in the Southern District to get the documents back; the district court appointed a special master to review the documents to decide what is classified, what is Trump's personal documents, and what is not-classified government docs. The US then asked for an order enjoining it from reviewing or using the documents pending special-master review. What can the US do to appeal to the 11th Circuit? Why ask for the injunction?

We move to District Courts; prep all of Structure, Overview, Removal. Prep the beginning of Arising Under: Arising Under (read all assigned statutes, plus Chemerinsky 305-18, 322-23 and Pfander 133-39, 141-44).

How are the district courts organized? Why do federal courts have federal-question jurisdiction-what are the three policies behind it? What is the process for removal? What is the Well-Pleaded Complaint Rule, what are the arguments for and against it, and how does it limit jurisdiction? How do cases governed by the WPC get a federal forum for federal issues? What does "arising under" mean for Article III, § 1257, and § 1331 purposes? Why give district courts "arising under" jurisdiction? What are the three types of statutes through which Congress gives district courts "arising under" jurisdiction (based on §§ 1331, 1337, 1338, 1121, and 2000e-5(f))? Know the facts and procedure of Mottley and how that affected jurisdiction.

For the removal section, current events require broader discussion of federal-officer removal under § 1442. Why allow federal officials (or those they supervise) to remove? See also 28 U.S.C. § 1455.

A word on reaction papers

Having looked at two panels worth, some thoughts:

• I appreciate the creativity in the papers. Most of you are doing more than summarizing your notes from class discussions, including original research and some creative ideas. Keep it coming. That said, your creative ideas have to make sense and have to hold together as a constitutional, policy, and practical matter.

• Reveiw the Good Writing and Talking Procedure post and the Assessments sheet; many papers ignore what I want and do not want to see in the papers. In particular, too much first-person--half your paper should not be taken up with your thought process in writing the paper; get to your argument.

• The analysis remains too cursory. You cannot make an important point--such as the constitutional validity of something like term limits--in a sentence of paragraph. Again, if that means narrowing the scope of your paper to dig deeper, great.

• Be careful about getting into topics or issues that we have not covered in class or that we will cover later in the class. For example, several people wrote about a SCOTUS code of ethics. That did not come up in our discussions or reading, which were focused on structure and jurisdiction. The answer rests on a complex interaction of broad terms such as "necessary and proper" and "judicial power." We will get into it later in the semester. But nothing that we covered to this point allowed you fully analyze that question.

For Monday

Tuesday audio.

We continue and hopefully will come close to finishing Courts of Appeals; if not, we will finish Tuesday. Panel IV (District Courts) should be prepared to go on Tuesday.

    • As a policy matter, why are decisions about injunctions (granting or denying) immediately appealable under § 1292? Consider two examples:

            • A suit seeking to enjoin enforcement of a state law prohibiting gender-affirming care to minors.

            • A patent infringement suit in which the infringed company seeks to enjoin the infringer from further infringing activities.

    • What mechanisms exist for review outside § 1291 and what is their source?

    • What is the argument that denial of class certification (allowing a named plaintiff to sue on behalf of thousands of unnamed, similarly situated persons) should be reviewable under COD? Where does 23(f) come from and how does it reflect a response to Coopers & Lybrand?

    • Consider the following two cases in district court

        1)  A and B v. X; A asserts one antitrust claim while B asserts one antitrust claim and one state law claim.

        2) A v. X, asserting one antitrust claim. B v. X asserting one antitrust claim and one state law claim. The cases are consolidated under FRCP 42 because they share common questions of law or fact.

    • What is the process and standard for mandamus? Given Marbury, how can SCOTUS issue a writ of mandamus in cases such as Cheney?

For Monday

Tuesday audio--Part I, Part II. Nice job in a long class today. SCOTUS Panel papers due outside my office by 11 a.m. next Tuesday, September 17. No class next Tuesday. Two more classes to make-up.

I mentioned Moore v. Harper, the independent-state-legislature case in which the Court had to deal with Cox finality. Read pp. 8-11 for the discussion. The Court reject the independent state legislature doctrine--the theory that the U.S. Constitution grants state legislatures exclusive and unilateral control over redistricing and selector of presidential elections, unchecked by the state executive or state courts. The case was complicated because the North Carolina Supreme Court first reached the merits and rejected ISL, then (while the case was pending in SCOTUS and after the court's political alignment changed) reconsidered and held that political gerrymandering claims are not justiciable under the state constitution. SCOTUS thus had to consider whether the initial judgment rejecting ISL was final for § 1257. Was the Court right in finding finality? Did it rely on the correct Cox category? Fair game for a reaction paper.

We turn to Courts of Appeals; prep Structure and Finality. Pay attention to the structure of the courts of appeals, how they hear cases, and how cases reach them. Why the finality requirement in § 1291--what are the policies, benefits, and drawbacks to that? What are the elements of the collateral order doctrine and do they make sense? What is the difference between a right not to stand trial and a right against liability, does the distinction make sense, and how does it affect COD? What orders are subject to COD review and which are not--how do you explain the difference between them? See pp. 4-5 of Justice Barrett's concurrence in Trump v. US (immunity).

Panel # 1 Reax Papers

Here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

Enjoy. I am happy to post (thoughtful) replies to any of these.

For Tuesday (Double Session)

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?

Argument Cases

Supreme Court Order granting certiorari.

Everyone has been assigned to argue one case and judge one case; all assignments were random. I made sure that no one has consecutive cases and no two people are paired as co-judges and opposing counsel.

In the coming weeks, consult with opposing counsel to decide who will represent each side and with your co-judge to decide who will serve as chief.

Review the order and the instructions on oral arguments. I will answer new questions at the beginning of class on Tuesday.

For Monday

Tuesday audio (corrected). Panel I Reax Papers (which can include out discussion of life tenure v. term limits) due at the beginning of class next Tuesday. First make-up at 12:30 next Tuesday. Also, I should have the list of argument cases to you by next week.

For Monday, we continue with Original Jurisdiction, including Prof. Vladeck's essay on original jurisdiction. How does the second sentence of Art. III § 2 cl.2 (referring to appellate jurisdiction) defeat Marbury's argument? Why was Marbury's case an example of original rather than appellate jurisdiction?  Why give SCOTUS original jurisdiction over those cases (considering the point in light of the reasons for federal courts)? What is the argument for and against the Court's original jurisdiction being mandatory? If the Court's jurisdiction is not exclusive, who else might have jurisdiction and on what basis (note the assigned statutes)? What sorts of disputes might two states have?

We will begin discussing Appellate Jurisdiction: State Courts; including SCOTUS Rule 10 (Blog) in your preparation. For Monday, prep Background and Power of Review; for the double session on Tuesday, prep the remainder of that part.

    • What is the source of SCOTUS' appellate jurisdiction and what is the role of statutes such as § 1257

    • Where does SCOTUS get the power to review decisions of state courts, as a matter of Art. III text and the purpose and policy of having SCOTUS?

    • Note how this jurisdiction evolved, including comparing current § 1257 (in the book) with the pre-1988 text (on Blog).

    • Who can SCOTUS review under § 1257?

    • What can SCOTUS review? What does "independent and adequate" state grounds mean? What sorts of rules are independent and adequate? What should the Court do if there is such a state ground?

Panels (Revised and Final)

Final panels after the jump. Several panels were rearranged from Courts of Appeals to the end of the semester; only the Structure and Supreme Court have not changed. Please review the list carefully.

Arguments

Will take place on Wednesday, December 18 and Thursday, December 19. This is final. Mark your calendars accordingly.

My apologies for the initial confusion in class today. The final day of exams is Tuesday, December 17. These are the two days after the end of exams.

Vladeck, History of Certiorari

For Tuesday, September 3

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.

For Tuesday

Monday audio. I will answer questions about the syllabus and course assignments in the first couple minutes of class. Panel # 2 is on tomorrow; sit on the far side of the room.

We finish History and Constitutional Foundations. What possible conflicts in law could there be and how should the court resolve them? Why does the Constitution control? Why should the power of review rest with courts? What is "judicial supremacy" and does the power of judicial review entail that? What are the arguments for and against judicial supremacy? What is "departmentalism," as discussed in Pfander? What is the best way of understanding the role of different branches in constitutional interpretation? What is "judicial activism" and why should you never again use that phrase in this class? Here is the list of the 14 impeached judges, 8 of whom have been removed.

We then move to Supreme Court:Structure. Consider how the Court's structure has evolved historically and the validity of proposals to alter it. Review the four proposals for SCOTUS reform (all in the Additional Materials Post--Biennial Appointments Act, Reforming the Supreme Court (blog post), Eight is Enough, and Alternatives--consider whether they are valid and whether they are a good idea. What are the drawbacks to life tenure, especially as applied to SCOTUS? What are the alternatives to permanent tenure beside periodic appointments? What is the argument that good behavior does not require life tenure (see Fed. No. 78, 3d ¶ from end)? What are the possible meanings or requirements of "one Supreme Court"?

Welcome to Fed Courts and First Week Assignments

Note: I understand you do not have access to printers on campus for the first few weeks of the semester. Until that problem is resolved, you may use a tablet or laptop in class to access the additional materials on the Blog. Please use only for accessing the documents and not for taking notes.

Welcome to Federal Courts. 

This blog is the primary means for out-of-class and between-class communication.

Please download and read the Syllabus for complete details about the course, assignments, pedagogical approach, grading methods, and course rules. Review it prior to the first class.

You should bring the Syllabus with you to every class. Please download and review Assessments for complete details about grading and graded assignments for the course. I will answer questions about these prior to the second class, on Monday, August 19.

Required Course Materials:

1) Erwin Chemerinsky, Federal Jurisdiction (8th ed. 2021) (“Chemerinsky”)
2)  James E. Pfander, Principles of Federal Jurisdiction (4th ed. 2022) (“Pfander”)

3) Federal Courts Blog. All materials can be found at Additional Course Materials, as indicated in syllabus; you should bookmark this page, because you will come back to it a lot.

Assignments for First Day of Class (after the Jump)

Judicial Supremacy v. Departmentalism (read for first week)

This post from Prof. Steve Vladeck (Texas) discusses judicial supremacy and the language of Cooper v. Aaron. (please do not share the link outside class).

Several points worth highlighting:

    1) Judicial supremacy depends on public perception and attitude. If the public regards SCOTUS opinions as pronouncing the controlling meaning of the Constitution, it creates political pressure for other actors to fall in line. Eisenhower sent in the 101st Airborne--importantly, to enforce not Brown but the district court opinion in a Little Rock lawsuit applying Brown--because national public pressure pushed him in that direction.

    2) The President plays a unique role here. If the judgment involves non-federal law (as in Brown and Cooper), the President's role is to enforce that judgment, raising the question of what a President can and should do if he disagrees with that judgment. If the judgment involved federal law (e.g., the injunction prohibiting enforcement of the student-loan relief plan), the President (or some other executive official subject to presidential control) is both the party bound by the injunction and the person who enforces it.

    3) The line between judicial supremacy and judicial departmentalism ultimately turns on how much leeway we give political actors who were not parties to the first case to ignore precedent until they get sued and subject to a court order. In other words, could Little Rock officials--adhering to their oaths of office and public obligation--continue enforcing current law and ignoring Brown, until sued and subject to a new judgment against them? Vladeck says no; a departmentalist would say yes.

This applies not only to how similarly situated government actors respond to precedent (i.e., how Little Rock officials responded to precedent created by a judgment in a case involving Topeka officials). It also applies to officials responding to a judgment against them. To see how much play there is in the joints and how complex this is, consider Allen v. Milligan from last term.

    SCOTUS held that Alabama's congressional map--containing one majority-Black district and one district that was about 39 % Black--violated the Voting Rights Act. SCOTUS affirmed an injunction requiring Alabama to draw a map that contained a second district that was majority or a "substantial minority" Black. Alabama enacted a new map with one majority-Black district and one district that is 41 % Black. Did they ignore the court order? Or did they attempt to comply and now we have a new question--to be litigated--of whether 41% constitutes a "substantial minority"?

Additional Course Materials

After the jump are the additional materials (statutes, cases, readings, etc.) assigned throughout the semester, as indicated in the Syllabus. You will return to this post for those materials; it may help to bookmark, so you do not have to scroll through the entire blog when a document is assigned.

Name Cards

At our first meeting on Monday, August 19, there will be a stack of tent cards on the table in the front of the classroom. When you come to the room, please find the card with your name on it and place it in front of you at your seat. You are responsible for keeping that card and having it with you at every class throughout the full semester.

Good Writing and Talking Procedure

You will write three 1000-word essays. And you will talk  about the law throughout the semester, in class and during arguments. Although I do not care about formal bluebooking in writing, I care about your writing and analysis. And I care about how you talk and write about courts and procedure, that you do so properly and not with the (inaccurate) informality you often see.

After the jump are tips on both.