Saturday, October 4, 2025

Merits and Jurisdictional Elements

One tricky piece in distinguishing substantive merits from jurisdiction is the problem of the "jurisdictional element"--an element that Congress must include to show it possessed legislative power ("legislative jurisdiction") to enact the statute and regulate the targeted conduct. The most common jurisdictional element is that the conduct "affected interstate commerce" for Commerce Clause legislation (recall US v. Lopez).

The term "jurisdictional element" creates confusion--doesn't that mean the failure of that element deprives the court of jurisdiction. The answer is no, because we distinguish Congress' "legislative jurisdiction" from the court's "adjudicative jurisdiction." The failure of the former represents a failure on the merits--the failure to satisfy some element of the charge; it so happens the element is constitutionally required, but it remains an element. The court has original adjudicative jurisdiction under 18 U.S.C. § 3231 "of all offenses against the laws of the United States."

 The Eighth Circuit held that the federal government failed to prove the commerce element in a sex trafficking prosecution (the use of money and a car that had been manufactured in another state was not enough). There is no discussion or suggestion the district court lacked jurisdiction. The district court properly acquitted because the charge failed.

If you can figure out the difference . . .

Returning to the collateral order doctrine and determining what is and is not subject to review.

A government official sued for damages for a constitutional violation can assert an affirmative defense of qualified immunity; denial of dismissal is appealable under the COD. A private actor can sometimes be sued for constitutional violations when they act under the control of the state; such a private actor cannot assert qualified immunity, but they can raise an affirmative defense of "good faith." The Ninth Circuit held that denial of dismissal is not appealable under the COD. The analysis amounts to: This is an affirmative defense to liability, not an immunity from suit. Again, no reason (beyond precedent declaring so) given for why.

We will discuss qualified immunity and good-faith immunity in Civil Rights next semester. Expect this case to be on the oral argument list.

Tuesday, September 30, 2025

For Monday, October 6

Tuesday audio--Part I, Part IICourt of Appeals papers due Monday.

We will finish District Courts with Complete Preemption, including the Rodriguez Notice of Removal.

Then move to the next panel, prepping Ex parte Younge and Three-Judge Courts.

Monday, September 29, 2025

For Tuesday, September 30

Monday audio. Double session on Tuesday--9:30-10:45 in RDB 2008, then regular time in regular room. Court of Appeals papers due next Monday, October 6.

Finish everything for District Courts (ignore the questions about § 1350). This will take us through both sessions Tuesday and probably a bit next Monday. Ignore the questions marked "Three Judge" and "Declaratory Judgments;" that is for the next section. Looking at § 1338(a), what is the rule for exclusive or concurrent jurisdiction in federal district courts?

Consider: An independent contractor brings a Title VII action against a business that has fewer than 15 employees. Title VII only prohibits discrimination against employees, not independent contractors; Title VII only prohibits "employers" from discriminating, defined as an entity with 15 or more employees.

What is the basis on which this action fails? 

Tuesday, September 23, 2025

Another stay and cert before judgment

In Trump v. Slaughter, on whether the president can fire FTC commissioners without cause. The Court stayed the injunction (allowing the firing to take effect immediately) and granted cert before judgment to reconsider Humphrey's Executor and whether district courts can hear federal officers' challenges to removal from office.

According to Steve Vladeck, this is the 23d grant of cert before judgment since February 2019; prior to that, the Court had not taken a case this way in more than 15 years.

Monday, September 22, 2025

For Monday, September 29

Monday audio. No class tomorrow. First make-up at 9:30 a.m. next Tuesday, September 30 in RDB 2007, followed by our regular class.

We will hit a few final words on Courts of Appeals, namely the process for mandamus. How is it consistent with Marbury? Who litigates on behalf of the sued court/judge? 

An interesting-but-rare side issue to our discussion of § 1292(b): The District of Delaware held that that where a case is transferred to a new judge, the new judge cannot certify the old judge's order. This creates some obvious problems for appealability? Worth considering whether the court gets the text right and what the textual solution might be.

We then move to District Courts, covering StructureJurisdictional OverviewRemoval, and Removal of Exclusive Jurisdiction. Note there are a bunch of provisions, some of which are on the blog; please have them in class. Add to the statutory mix § 2000e-2 (Title VII). Also read Chemerinsky pp. 273-84 and 287-88 and Pfander pp. 133-44--be ready to talk about the meaning and purpose of the well-pleaded complaint rule.

Wednesday, September 17, 2025

Knowing finality

This Ninth Circuit case involves bankruptcy courts and appeals to district courts, which we will discuss in a few weeks. But it involves appeals and timing and illustrates what we discussed last week: A party must understand when an order is final even if if does not plan to immediately appeal, because it may have no choice--a final order must be appealed

The bankruptcy court (the lowest court) entered an order (vacating a stay) that is understood as final (through a doctrine functionally equivalent to the COD). The adversely affected party did not appeal it at the time, continuing to litigate other issues. The later attempt to appeal was untimely.

Tuesday, September 16, 2025

For Monday, September 22

Tuesday audio. We do not have class on Tuesday. I expect/hope to finish Courts of Appeals on Monday; if not it may carry to the following Monday (9/29). anel 4 (District Courts) should be ready to go for the beginning of class on Monday, 9/29.

Prep and review Interlocutory Orders. How can SCOTUS grant mandamus, given Marbury

Monday, September 15, 2025

For Tuesday, September 16

Monday audio. Panel # 2 papers due tomorrow. Constitution Week panels tomorrow and Wednesday; both at 12:30 in RDB 1000. We will look for some make-up times for 9:30, TBD.

Continue with Finality. Can you explain how COD has broken out, along the lines of the three elements of Cohen? Consider:

   X, the defendant in a criminal prosecution, challenges (as a Fifth Amendment violation) a court policy of keeping pre-trial detainees in five-point shackles during non-jury court proceedings, regardless of whether the detainee poses a security threat; the court holds that the shackling is permissible. Can X appeal under COD? How should we understand the decision for purposes of the third prong of Cohen?

Move to Interlocutory Review, including all the assigned statutes. How do all the various mechanisms fit together as a whole?

Wednesday, September 10, 2025

New Podcast of interest

Battle of the Branches, featuring interviews and discussions with faculty members at University of Chicago. The first, second, and final episodes are most relevant to this class.

Tuesday, September 9, 2025

Important Updates to Class

1) No make-up next Monday (September 15). About half the class has a conflict, so it makes no sense to hold the session. Normal class both days next week. Make-ups TBD.

2) During our shadow-docket discussion, I forgot to mention the connection between the increase in stay petitions to SCOTUS and the increase in cert before judgment--the Court responds to a petition for a stay pending review to the court of appeals by treating it as (and granting) a petition for cert before judgment and taking up the entire case. See, for example, United States v. Texas. This also came up in Trump v. Boyle. The Court granted a stay in a firing case, based on a prior order in a firing case; Justice Kavanaugh concurred to argue the Court should have granted cert before judgment. Note that Kavanaugh's concurrence in CASA requires additional cert-before-judgment, because he insists that the Court must resolve the "interim" merits earlier in cases.

3) Shane asked for examples of the Court making a stay decision, then coming out the other way. The most prominent example of the Court staying the injunction but then affirming is Allen v. Milligan (a redistricting case from Alabama, on mandatory review of a 3-judge district court). Two examples of the Court refusing to stay the injunction but eventually reversing on the merits--Biden v. Texas and US v. Texas.

4) Point # 3 somewhat relates to another piece of the shadow docket controversy--whether the Court should write something to explain its stay decisions. In Labrador v. Poe and in CASA, Justice Kavanaugh wrote concurrences to justify not writing--the concern that writing "locks" the Court into a position on the merits.

5) The Court granted the latest cert before judgment today, in the tariffs case (actually two consolidated cases). This involves consolidation of cases at different stages--plaintiffs sought cert before judgment in one case while the government sought cert from a Federal Circuit decision in the other.

For Monday September 15 (Double Session)

Tuesday audio. SCOTUS Papers due at beginning of class next Tuesday. Double session on Monday, so we should get through all of Finality and COD; we will take a break and return at 12:30.

Additional questions: Why have the Federal Circuit and does it make sense as a specialty court? Review the rules and statutes governing the process for appeal and what parties must do. How does a party appeal prior non-final orders once a judgment is final?

Monday, September 8, 2025

Constitution Day Event: The Substance and Procedure of Birthright Citizenship

We have several events next week for Constitution Day.

One is The Substance and Procedure of Birthright Citizenship, a discussion of CASA and the citizenship E.O., featuring Prof. Roman and me, sponsored by the College of Law and several student groups.

12:30 p.m. next Tuesday, September 9 in RDB 1000 (Large Courtroom).

Flier here

For Tuesday, September 9

Monday audio. Panel # 3 should be ready to go, but just prep Structure; we won't get beyond that.

We will finish State Court Review, then move to Review of Federal Courts (including these materials). We will begin with the other two possibilities in Cox and how they implicate federal policy concerns. Then review the pages in Moore; consider why Category # 2 is wrong and whether # 4 would have been a better fit.

We hopefully will get to Courts of Appeals: Structure towards the end of class.

Thursday, September 4, 2025

Additional reading for Monday/Tuesday

We will discuss the "shadow docket" (Chemerinsky pp. 673-74) as part of SCOTUS's review of federal courts. This is an increasingly controversial subject, especially in the first months of the current administration.

In addition to that reading, look at NIH v. APHA, especially Justice Gorsuch's concurring opinion, and pp. 23-31 (especially FN 9) of Harvard v. HHS

Two more things. First, read this NBC New story based on interviews with ten lower-court judges. Beyond what this tells us about the emergency docket, consider the problems or benefits of rhetoric such as Justice Gorsuch uses and the response from Judge Burroughs and those interviewed for the NBC story. How does the nature of the emergency docket create tension among the courts and with the executive and public?

Second, this NY Times story (H/T: Sara) on a district judge "apologizing" for failing to treat an emergency order as binding precedent. I put apologizing in danger quotation marks because it is not clear he was apologizing as much as explaining why he approached the cases as he did. Read this in connection with Harvard FN 9, which reflects a different response to Justice Gorsuch.

 

Wednesday, September 3, 2025

The Next Original Jurisdiction Case?

Prof. Steve Vladeck (One First) discusses the Administration's plan to send Texas National Guard troops (unfederalized, so under the command of the Texas government) to Chicago and the potential statutory and constitutional problems with this plan. He also discusses how Illinois might challenge this in court, including by suing Texas in an original jurisdiction action in SCOTUS or by suing the Secretary of Defense in district court. Consider that there should be two automatic votes (Thomas and Alito) to allow the action.

Although he does not discuss it, there is a third option--sue the U.S. in SCOTUS on original jurisdiction. The case arguably raises some of the sovereignty and speed concerns that justified original jurisdiction in South Carolina v. Katzenbach.

Tuesday, September 2, 2025

For Monday, September 8

Tuesday audio.

Prep the rest of Review of State Courts and then Review of Federal Courts of Appeals. Review the Vladeck piece, which provides a nice history of cert before judgment. What does it mean for a case to be "in" the court of appeals for § 1254 purposes.

Read pp. 8-11 in Moore v. Harper. 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?

I hope to begin Panel III by sometime Tuesday. 

 

Wednesday, August 27, 2025

Argument Assignments

Here and after the jump. Please note:

• The first party listed (petitioner) is the loser in the court below, not necessarily the plaintiff in the original suit.

• I did not assign who will argue which side or who will serve as chief. At some point during the semester, confer with your opponent and your co-justice and decide. I will gather that information sometime in November.

• You may use any case for a reaction paper other than the one you are assigned to argue or judge. If you choose to write about one of these cases, frame your paper as if you are writing an opinion as SCOTUS, with most of the space devoted to the legal analysis. 

Final Panels

OK, I think roster movement has ended. We landed on 26 in the class.

After the jump are the final panels, please note two changes affecting Karlee (added to the list) and Casey (no longer on consecutive panels).

Note that 26 in the class means 13 cases, so our argument day will be slightly shorter. 

 

Tuesday, August 26, 2025

For Tuesday, September 2

Tuesday audio.

We continue with Original Jurisdiction and the policy arguments justifying making it discretionary. How does discretionary jurisdiction create particular problems for § 1251(a) cases? What factors guide the Court in deciding whether to hear an original case?

Then move to Appellate Jurisdiction. Look at the materials on evolution of SCOTUS' jurisdiction (discretionary v. mandatory), including Vladeck's History of Certiorari. How does pure discretionary jurisdiction change the Court's role (from the competing conceptions of that role) and how does it affect (and perhaps undermine) the arguments for judicial review.

Then prep all four sections of Review of State Courts

Monday, August 25, 2025

For Tuesday, August 26

Monday audio. Panel I reax papers due at the beginning of class tomorrow. To be clear: I do expect you to provide support for a point you make--I need to know you're not making stuff up. I just don't need perfect bluebooking; just a sense of where you are getting the idea from.

We continue with Original Jurisdiction. Relate the list of cases in Art. III § 2 cl.1 to the purposes of having federal courts and a federal judicial power; why these cases and how to they relate to those purposes? Why did Marbury come out the way it did on the jurisdictional issue? Was the Court being asked to exercise original or appellate jurisdiction there?

Move to Appellate Jurisdiction, looking at the materials on the evolution of SCOTUS' jurisdiction (discretionary v. mandatory), including Vladeck's History of Certiorari. How does pure discretionary jurisdiction affect the Court's role and function and how it affects (and perhaps undermines) the arguments for judicial review. 

Then move to Background and Power of Review

Thursday, August 21, 2025

The truest phrase ever uttered

From the Eleventh Circuit in Burt v. President of University of Florida (appeal untimely when filed more than 30 days after deadline to amend expired)

First Amendment cases often get serious attention, and rightly so. But civil procedure, though perhaps less glamorous, defines the rules of the road.

 

Tuesday, August 19, 2025

For Monday, August 25

Tuesday audio. Panel I papers due at the beginning of class Tuesday.

For Monday, we will continue with SCOTUS: Structure and Role; be ready to evaluate the constitutional and policy arguments for and against the proposed structural reforms for SCOTUS, as well as FDR's court-packing plan.

Prep all of Original Jurisdiction.

We will begin talking about Appellate Jurisdiction, but just prep the questions and reading about the evolution of SCOTUS' jurisdiction (discretionary v. mandatory). How does pure discretionary jurisdiction affect the Court's role and function and how it affects (and perhaps undermines) the arguments for judicial review.

We will begin Review of State Courts on Tuesday.

Monday, August 18, 2025

For August 19

Monday audio. Excellent job today. 

I have updated the list of panels; please make sure you know where you are. First couple of minutes tomorrow answering questions about assignments, assessments, and other stuff.

We will continue with and finish Federal Courts and Constitutional Structure.

Panel # 2 should be ready to go towards the end of class (sit nearest the windows). For tomorrow, prep Structure and Role, including the Vladeck post on the history of certiorari.

The list of discussion questions should be correct on the introductory posts. But here it is again

Again, still plenty of room in the class. Tell your friends what a fun time it is  . . . 

Vladeck, History of Certiorari

The One First Long Read: The History of Certiorari

The first thing to say about “certiorari” is that lawyers can’t even agree if the word has four syllables or five. We often just shorthand it to “cert.” to save everyone the trouble. But however you pronounce it, there’s no denying the central role certiorari has played in the evolution of the Supreme Court as an institution, and the Court’s ability, for better or worse, to operate as it does today. In this first installment of the One First “Long Read,” we take a brief tour through the history and evolution of this obscure but critically important procedural device.

As law professor Ed Hartnett wrote in 2000, February 13, 1925 was the day on which “the modern Supreme Court was born.” No major decision was handed down on that date; no new Justice took the (two) oaths of office. Rather, it was on that otherwise nondescript Friday that President Calvin Coolidge signed into law the Judiciary Act of 1925—known then and now as the “Judges’ Bill,” entirely because it was the judges (technically, the Justices) who were behind it.

The Judges’ Bill fundamentally transformed the Supreme Court’s docket. For the Court’s first 101 years (from 1790 to 1891), the Justices had no discretion over whether or not to hear an appeal. Congress repeatedly tweaked which cases could be brought to the Supreme Court, but everyone understood that the Court’s “appellate jurisdiction” in whatever cases Congress prescribed was “mandatory”; if the Justices could hear an appeal from a lower state or federal court, then they had to do so. 

In the decades after the Civil War, however, the Court’s docket (like that of lower federal courts) had exploded. Whether because of litigation arising out of the Reconstruction Amendments; the dramatic expansion of the federal government; the growing proliferation of federal regulation; or some combination of all three, the Supreme Court by one point in the late 1880s had over 1800 cases on its docket—with some estimates placing the Justices more than three years behind in clearing the backlog.

In the 1891 Evarts Act, Congress for the first time gave the Justices a modicum of control over their docket. In four classes of cases that were perceived at the time as relatively less important, the Court could choose whether or not to exercise jurisdiction by granting a “writ of certiorari.” And although the statute didn’t say so, it eventually became the Court’s practice (which, to this day, has never been codified in any statute or rule) that it takes four votes to agree to take up such an appeal, not five.

“To be more fully informed” in Latin, a writ of “certiorari” was an unusual but not unheard-of mechanism used by English appellate courts of the same era to take up cases from lower courts. The idea under the 1891 Act was to pick sets of cases then seen as generally insignificant, and spare the Justices of the need to explain themselves if a specific appeal was turned away. Thus began not only the “rule of four,” but also the practice of unexplained “denials” of certiorari—cursory orders in which permission to appeal one of those four types of cases was denied.

But the innovation of certiorari in the 1891 Act did very little to reduce the pressure on the Court’s docket. And Congress only added to that pressure in 1914, when it gave the Justices, for the first time, the power to hear appeals from state courts in cases in which the state courts had ruled in favor of a federal claim (from 1790–1914, the Supreme Court could review only those state court decisions rejecting federal claims). Although these appeals, too, came via certiorari, now, they were only adding new cases to the Court’s docket.

Thus, by 1925, the Justices themselves (led by Chief Justice, and former President, William Howard Taft) were some of the loudest proponents of giving the Court more discretion over its docket—not just over new types of appeals, as in the 1914 Act; or unimportant types of appeals, as in the 1891 Act, but over all appeals. 

Taft didn’t hide his motivations. In an influential 1908 article published while he was running for the White House(!!), he had argued that the Supreme Court’s function was not to resolve individual cases, but rather to “cover the whole field of law upon the subject involved.” In a 1910 speech, then-President Taft directly connected the vision of the Supreme Court as a general expositor of legal principles to discretionary review of specific appeals. And after joining the faculty at Yale Law School at the end of his presidency, now-Professor Taft explicitly urged Congress in 1916 to do away with the requirement that the Justices hear appeals except in cases involving interpretations of the federal Constitution. 

For Taft, it wasn’t just that the Justices were overworked; it was that a Court without discretion to pick and choose its cases couldn’t truly function as a constitutional court, because it would forever be deluged and distracted by technical appeals that, whatever their significance to the parties, were inconsequential to the nationwide development of the law. A supreme court, in Taft’s view, was one that controlled its docket, and not one that was told which cases to resolve.

In the Judges’ Bill, Congress (largely) acquiesced in Taft’s vision. Under the 1925 Act, the Supreme Court would have discretion to decide whether to hear all appeals from the federal intermediate appeals courts (but would still have to hear appeals from state courts when the state courts rejected a federal claim). And in 1988, Congress would finish Taft’s work—giving the Court discretion even over those appeals from state courts, as well. Today, the only appeals that the Supreme Court must hear are the two categories of cases that Congress requires to be heard by special “three-judge district courts”: challenges to congressional reapportionment; and certain challenges to campaign finance laws, appeals from which go directly to the Justices. During the Court’s most recent Term (the October 2021 Term), exactly one of the 58 cases resolved through a signed opinion came from a three-judge district court (thanks, Ted Cruz!); the other 57 were all cases the Justices chose to decide.

The shift toward certiorari gave the Justices discretion to pick and choose which cases they decide based upon criteria that would be entirely up to them. But Taft took it even further. Contradicting representations he had made to Congress while testifying in support of the Judges’ Bill, the Court also quickly claimed the power to decide only specific questions within the cases they were choosing to hear. 

In one of the most prominent early examples, a 5-4 majority in Olmstead v. United States held that wiretaps of telephone calls did not require warrants under the Fourth Amendment even though, as three of the four dissenters argued, the case could have been resolved in Olmstead’s favor on other grounds. It was Taft, writing for the majority, who explained that the Court had agreed to resolve only the constitutional question. (Below is a picture of the Supreme Court that decided Olmstead in 1928; by tradition, Taft, as Chief Justice, is front-row center, and the rest of the Justices alternate to his right, then his left, in seniority order.)



That’s why today, a “cert. petition” (a “petition for a writ of certiorari”) must begin with the “Question(s) Presented” for review. Thanks to certiorari, the Supreme Court doesn’t actually hear appeals; it hears questions it has specifically chosen to hear within appeals. And in a growing number of cases, the Justices will even write their own questions when granting certiorari (as in the major Second Amendment case the Court decided this June), rather than relying upon the questions presented by the parties. 

So it’s not just that the Court is hearing fewer and fewer cases each year (per the below graphic from Dr. Adam Feldman that shows the total number merits decisions by Term ); it’s that the Court is deciding a small number of carefully curated (and sometimes internally generated) questions within that self-selecting subset:



In a future issue, I’ll talk more about the universe of strategic and tactical behavior that the rise of certiorari has begotten, including how the Justices themselves manage the “cert. process.” The relevant point for present purposes is that the contemporary Supreme Court is defined by certiorari—by the discretion the Justices have to set their own agenda. As Professor Hartnett has put it, “the Supreme Court’s power to set its agenda may be more important than what the Court decides on the merits.” At the very least, understanding that today’s Supreme Court, with few exceptions, decides only cases the Justices agree to take up (and only specific questions within those cases) puts what the Court does decide on the merits into rather important perspective.

And whatever its merits, that perspective seems like a fitting place to begin any sustained discussion of the Supreme Court of the United States. We’ll pick the story back up next week…



Wednesday, July 16, 2025

Welcome to Fed Courts and First Week Assignments

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 Tuesday, August 19.

Here are Class Discussion Questions that we will use to guide class conversations . You now have most of the questions for the entire semester, although I may provide more in advance of a particular class. You should print this and keep it with the Syllabus. 

Required Course Materials:

1) Erwin Chemerinsky, Federal Jurisdiction (9th ed. 2025) (“Chemerinsky”)
2)  James E. Pfander, Principles of Federal Jurisdiction (4th ed. 2022) (“Pfander”)
3) Federal Courts Blog. All materials can be found on the Blog at Supplemental 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

Supplemental 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.

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.

Please review and follow this. I will take points off.

After the jump are tips on both.

Name Cards

At our first meeting on Monday, August 18, 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.

We will not have assigned seats. Panelists will sit on the sides, when assigned.