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.