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listed as being on the blog, make sure you go to that version for class; the appendices in both books are incomplete or out-of-date, hence the additional provisions.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?