F24 Arguments

Arguments from last fall. Day One; Day Two.

Mootness and the victorious plaintiff

SCOTUS will hear argument in January in Little v. Hecox, a challenge to a state ban on trans-girls/women's participation in girls/women's sports. The plaintiff (Hecox) won in the Ninth Circuit. In September, the plaintiff submitted to SCOTUS a suggestion of mootness, certifying that she no longer wanted to participate in women's sports in the state.

Several of the mootness panelists wrote about this. FYI, here is an article by Profs. Mazzone and Amar (both at Illinois), styled as an "open letter" urging the Court to follow ordinary mootness principles and dismiss the case.

Final Class

Final Class audio. See everyone for arguments on Thursday, December 18. Abstention and Congressional Control papers due then.

On the subject of opinion writing: See this analysis from Prof. Adam Feldman about the evolution of SCOTUS opinion writing, suggesting that the Court itself did not see separate opinions as a thing for about 150 years (to the extent you believe history and practice matter). 

Thank you all for a great semester. I hope you enjoyed the show. Hope to see many of you for Part II next semester. 

Standing Realignment

Prof. Richard Re expands his argument about the ideological shift in standing, looking at how more often conservative justices (especially Alito and Gorsuch) find standing and liberal justices (especially Jackson) reject it. The drift especially shows in state standing cases, as we move from allowing Massachusetts to sue the Bush II EPA over climate change to allowing Missouri to stop Biden's student-loan relief.

Against certification

See the dissent from Judge Andrew Oldham (a short-lister for SCOTUS under Trump), criticizing the process of certification (or at least its overuse) as an abdication of federal judicial power. See especially Part I.C, which traces the history of Erie and abstention and explains certification as a response to the problems of Erie guesses and federal courts declining to decide state-law issues.

For Monday, November 24 (Final Class)

Tuesday audio. Mootness/Ripeness papers due Monday. Abstention papers due at arguments.

We continue and conclude with Congressional Control. Read the scholarly debates on jurisdiction-stripping; I don't think we'll discuss in class, but they are fair game for your papers. Be ready to discuss:

    • The difference between dictating an outcome and changing the law, as seen in Robertson, Markazi, and Patchak. Is the PLCAA valid under Klein? What about the No Kings Act?

    • How do you square the Klein principle that Congress cannot dictate constitutional meaning with departmentalism?

    • Can Congress dictate statutory meaning, including the interpretive tools and methodologies courts can use?

    • How is Plaut different than Klein and what is Plaut's unique principle.

    • What textual terms in Article III or elsewhere grant or limit congressional power over the courts? Is the scope of the power different for SCOTUS than lower courts and, if so, why?

    • Besides creating courts and determining jurisdiction, what else can Congress attempt to control? 

    • Consider the validity (especially in light of Klein and Plaut), benefits, and drawbacks to the following:

        • two proposals on cameras in the courtroom.

        • Shadow Docket Sunlight Act

        • Proposal: In deciding a case, SCOTUS shall issue one unsigned, unenumerated majority opinion. No concurrences or disssents. If a majority cannot agree on a rationale, the Court shall issue a judgment summarily affirming or reversing, without opinion.

    • Proposal: Limits on opinion lengths: Majority opinion may be no more than 15,000 words, concurrences 5,000 words, dissents 10,000 words.

For Tuesday, November 18

Monday audio. Mootness papers next Monday.

We continue with Abstention. Sections 7421 and 1341 refer to "taxes." As opposed to what and how do we know the difference? We then turn to the judge-made abstention doctrines; our focus will be on Colordado, International Comity, and Burford. I will give a brief overview of Younger and Pullman; we go into greater detail on those in Civil Rights (because both arise in constitutional litigation).

We then turn to Congressional Control. For tomorrow, do the reading in both Chemerinsky and Pfander focusing on Klein, Plaut, and the other cases, along with the PLCAA. Be ready to discuss the following:

    • What principles does Klein stand for? What does it mean for Congress to "decide" a case and when does Congress not decide a case but instead do something permissible?

    • What makes a law retroactive? What constitutional limits on retroactivity are there (see Art. I §§ 9 and 10)?

    • What might it mean for Congress to tell the Court what the Constitution means? 

    • Is the PLCAA constitutionally valid under Klein? 

Schedule of Arguments, Thursday, December 18

Scheduling Order. Standing Order on Procedure.

Please email me ahead of arguments if you have food restrictions or needs (vegetarian, vegan, Kosher, Hallal, food snob, picky, whatever) 

Ripeness v. Standing

We skipped a discussion of ripeness in class, mainly because it has been largely subsumed by standing--the concern for an imminent injury as part of standing in pre-enforcement actions has left ripeness without much to do. Some have suggested that ripeness is prudential while standing is Article III; others have suggested that ripeness applies to private actions while standing applies to public-law EpY actions (compare SBA with Medimmune).

But see this Sixth Circuit case, holding that a property owner's claims challenging the city's refusal to grant him a zoning permit were not ripe because he withdrew the permit request. The court seems to looks to ripeness because the case involves property/zoning. But read the facts and the defects in the plaintiff's case--it is easy to see how this could (and in many cases would) be recast as standing.

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Collateral Order Argument

SCOTUS heard argument yesterday in GEO Group v. Menocal, on whether the immunity that federal contractors enjoy is subject to COD review. (This was on the original list of cases for our class, but it dropped when enrollment dropped).

The argument hits a lot of the things we discussed on COD: The difficulty of distinguishing a defense from an immunity; the fact that it is easy to call something one or the other; the need to find that delayed review harms an interest beyond litigation burdens (citing Digitial and Will). The respondent's attorney does an excellent job.

Civil Rights

I know registration has begun and is kicking into gear. I want to make a pitch for people to take Civil Rights at 9:30-10:45 Monday/Tuesday. Fed Courts and Civil Rights form a two-course sequence; the second course focuses on constitutional litigation under § 1983 as one specific area of federal litigation.

The classes share the same structure: Reading is from a treatise, with class discussions focused on real-world cases taken from the treatise; panels and reaction papers; appellate arguments at the end of the semester.

Happy to answer questions about the course at the beginning of class next Monday. 

For Monday, November 17

Monday audio--Part I, Part II. No class tomorrow; Judicial Lecture at 12:30 Wednesday. Standing papers due next Monday. We will finish Mootness on Monday and papers will be due the last day of class. Papers on Abstention and Congressional Control due on the day of oral arguments.

We will finish Mootness with two issues. The effect that merits have on the justiciability inquiry and what happens if a case becomes moot on appeal.

We then move to Abstention; for Monday and Tuesday, prep all sections of that portion. Congressional Control should be ready to go on Tuesday, as well. Apologies for the rush at the end of the class.

 

 

More federal officer removal

When I said everything in the news comes back to Fed Courts, I was not kidding.

The Second Circuit ordered the district court to redo its analysis of whether President Trump had shown good cause for not removing his New York criminal case under § 1442(a) until just prior to sentencing. Trump claims that Trump v. US (the immunity decision) offered a new ground for removal and thus excuses any delay. The case offers a nice summary of § 1442 and § 1455 and how criminal removal works.

More standing for pre-enforcement religious challenges

For the specifics of the wedding web site case that we discussed as a hypo:

The case is 303 Creative v. Elenis; the Court did not grant cert on standing, although the lower courts did address it (district court dismissed for lack of standing, Tenth Circuit found standing). Richard Re addresses the "she didn't have standing" arguments from the left, explaining why the plaintiff satisfies SBA and why the left's arguments to the contrary might portend an ideological shift on pre-enforcement standing (something we will discuss next week). Re's piece is only 26 pages, so not a heavy read. 

Skim the transcript of the argument in Chiles v. Salazar, which we might call Child of 303 Creative and Masterpiece. This is a challenge to a Colorado (again) law prohibiting conversion therapy (a form of therapy designed to convert someone to being straight). The plaintiff is a therapist, although she does not practice conversion therapy. Although the Court did not grant cert on standing, it came up during argument, particularly from Justice Sotomayor and Justice Gorsuch. The question is what the statute means and its scope and whether it might reach therapy not specifically defined as "conversion." Prof. Re describes the arguments over the issues.

From standing to merits and back

From Madeline: The Eleventh Circuit sort-of affirms an injunction barring enforcement of a Florida law restricting ownership of property in the state by Chinese nationals. Plaintiffs challenged three provisions. The district court denied the injunction as to all three on the merits--plaintiffs were unlikely to succeed on the merits. The court of appeals affirmed as to two of the provisions. But as to the third, it found that the injunction should be denied for lack of standing. So the case illustrates the movement between them and how standing prevents courts from touching the constitutional merits, creating more procedural burdens.

One more point: The disposition is arguably phrased incorrectly. The court did not reverse as to the third provision, since it agreed with and affirmed the district court judgment--the injunction should be denied. It did so for a different reason--lack of standing (thus lack of jurisdiction) rather than on the merits.

 Further evidence that courts are the least aware of procedural niceties. 

 

For Monday, November 10 (Double Session)

Tuesday audio. Double session Monday; no class Tuesday. Judicial Lecture at 12:30 next Wednesday, November 12 in the Large Courtroom; class participation points for attendance.

A few quick clarifications:

• There is no split of authority about standing really being merits. The position is held by an island of three people--Judge Fletcher, Judge Newsom, and me. So every court treats them as separate--you will not find courts going the other way.

• We skipped this for time but it came up after class: Standing is grounded in Article III, which applies to federal courts. State courts can have their own standing rules, which can be broader than what works in Article III. That is why Texas could allow "any person" to sue over a post-heartbeat abortion--Texas courts can develop standing rules that allow anyone with a statutory cause of action to sue. California's consumer fraud laws were similarly broad pre-2004: Any person could sue over a false statement that a company makes; thus any random person could sue Nike when it (allegedly falsely) denied using child labor.

But this raises a potentially interesting question: What happens if a federal issue arises in a case that could not be brought in federal court with limited standing but can be brought in a state court with broader standing? For example, what if the TransUnion plaintiffs could establish standing in state court? How would we ever get a federal forum for those federal issues? The answer: SCOTUS can review the state court decision--the adverse state court judgment constitutes an injury to the state-court loser, which creates standing for SCOTUS review (even if there would not have been standing in a district court in the first instance).

I hope to get through the rest of Standing in the first session, then move to Mootness/Ripeness either late in session I or in Session II. 

Standing or EpY?

From the Eighth Circuit.

Minnesota enacted a law prohibiting businesses from holding mandatory employee meetings; plaintiffs (a group of businesses) sued the Governor, AG, and Commissioner of the State Department of Labor and Industry. The court held that the Governor and Commissioner lack enforcement authority and that the AG had issued a public proclamation disclaiming intent to enforce. But the analysis jumps back-and-forth between EpY and sovereign immunity (the stated basis for dismissal) and standing (the AG intent not to enforce would seem to go to the likelihood-of-enforcement prong in SBA).

Still more mandamus

From the Eleventh Circuit, compelling Judge Cannon to act on certain long-pending motions (media members seek to intervene and compel release of the special counsel's report) in the Trump documents prosecution.

This is a good example of the courts of appeals using mandamus not to address otherwise-unappealable large matters but to exercise supervisory authority over lower-court judges, ensuring things proceed as they should.

For Tuesday, November 4

Monday audio. 11th Amendment papers due tomorrow. Double session next Monday. Argument assignments (attorney and judge) due next Monday. I hope 25 % of the class will not be out tomorrow.

Prep the rest of Standing, which will take us through tomorrow and the beginning of next Monday. Think about the policies or principles supporting Standing and whether they justify the doctrine.

Consider the following: 

    Missouri law prohibits food companies from labeling or advertising a product as "meat" if it is not derived from animals. Plaintiff is a vegan-food producer that does not use the word "meat" in its labels or marketing. It alleges a First Amendment violation.

Assume the claim will fail. What might be the grounds for that failure? 

Mootness/Ripeness should be ready to go next Monday. 

Not universal, still broad

Judge Kennelly on the Northern District of Illinois in a challenge to an E.O. prohibiting government contractors from using DEI programs. The plaintiff is a non-profit that conducts DEI trainings. Its stated injury is that the E.O. prevents it from working with companies that may contract with the federal government and so have canceled or will not hold DEI trainings.

The court initially granted a universal injunction prohibiting enforcement of that provision against anyone. Post-CASA, the court reissued the injunction with the same scope. The court explained that complete relief to the plaintiff requires an injunction that will leave it free to contract with anyone who might want its services. That means every company must be free of the limits of the E.O. in order to work with the plaintiff and still seek government contracts.

Read it for yourself. It has some elements of third-party standing (which we will discuss tomorrow) and it involves a First Amendment challenge, which alters standing analysis. But it shows that CASA still leaves courts room to craft broad remedies. Just don't call them universal.

Mandamus in action

From the Seventh Circuit. The district court issued a TRO limiting ICE use of force around Chicago; she issued a second order requiring the chief of operations in Chicago to appear daily to report on the use of force (and possible violations of the TRO) that day. The Seventh Circuit granted mandamus as to the second order, saying it was too inquisitorial (the court not acting as neutral arbiter between adversarial positions) and infringed on separation of powers.

Oral Arguments

I will announce this in class on Monday, but I will also post here: Please confer with your opposing counsel to decide who will represent which side (Petitioner--the loser below--listed first). Please confer with your co-justice to decide who will serve as Chief.

I will gather this at the beginning of class on Monday, November 10. 

Make-up

Our final make-up will be 9:30-10:45 on Monday, November 10 in RDB 2007. So no need to change rooms.

One More thing for Standing on Monday

Read Noem v. Vasquez Perdomo (challenging ICE's random stops in Los Angeles) and how Kavanaugh's concurrence and Sotomayor's dissent discuss Lyons. You can read the whole if you like, but focus on the discussions of Lyons--pp. 4-5 of Kavanaugh and pp. 13-15 (Part II.A.2) of Sotomayor.

For Monday, November 3

Tuesday audio. Eleventh Amendment papers due next Tuesday.

We continue with Standing: Constitutional Considerations and Taxpayer Standing. We pick up with whether the injuries the plaintiffs suffered in Clapper--loss money, difficulty in communicating--was sufficient for the first prong of standing. Think carefully about the purported foundational principles of standing--why we have this doctrine--and whether they justify it.

For Tuesday, October 28

Monday audio. Non-Art. III papers due tomorrow.

One challenge in the congruence-and-proportionality analysis involves identifying the constitutional right that Congress seeks to remedy or enforce in the particular statute; once identified, the question becomes whether that rights gets rational-basis scrutiny or some form of heightened scrutiny, which will answer the C&P question (and thus whether the statute is "appropriate" legislation through which Congress can abrogate). That is not always easy, as Coleman v. Maryland Court of Appeals (Chemerinsky pp. 463-64) illustrates. The Court divided over what right the FMLA self-care provision sought to remedy--the majority said it was pregnancy discrimination, which gets rational-basis review, thus the law is not C&P; the dissent said it was gender discrimination, which gets intermediate scrutiny, thus the law is C&P.

We will finish 11th Amendment. What does it mean for a remedy to be "prospective" and how to determine that? Then prep the following:

Plaintiff is fired from his job with a state agency. He sues the head of the agency and seeks the following remedies: 1) Compensatory damages; 2) Backpay (wages he would have earned from the time of firing until judgment); 3) Reinstatement to his position; 4) Frontpay in lieu of reinstatement (if reinstatement is impossible, wages he would earn for some future period in which he would have worked had he been reinstated).

We then begin Standing: Constitutional and Statutory Considerations. What is/are the purposes or goals of standing and does the doctrine achieve them? 

For the little bit on Monday and all of Tuesday, prep Constitutional and Statutory Considerations. In addition to the cases listed on the syllabus, focus on California v. Texas, Alliance for Hippocratic Medicine, and Murthy (all in Chemerinsky); TransUnion (discussed in Pfander); and SpokeO (discussed in both). Also read pp. 40-49 of the concurring opinion in this 11th Circuit case (you are welcome to read the whole thing).

• How would standing considerations arise in the lawsuit above against Florida's new defamation la?

 • 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 and the state civil rights commission has pursued similar claims against a bakery that refused to bake a cake for a same-sex wedding. A has ideological and religious objections to same-sex marriage and would not want to tell the story on her web-site of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.

 

 

Supremacy Clause Immunity

Helpful piece from Prof. Steve Vladeck on Supremacy Clause Immunity amid questions of whether states can prosecute ICE or other federal agents for violating state law for their conduct during immigration raids, protests, etc.

For our purposes, recall that any defendant officer would attempt to remove under § 1442. He then would have to show a "colorable" Supremacy Clause Immunity defense to keep the case in federal court.

The piece alludes to the difficulty of suing federal officers for damages for constitutional violations. That is the topic for Part II of the course sequence--Civil Rights next semester.

For Monday, October 27

Tuesday audio--Hour I, Hour II.

We continue with Eleventh Amendment. Besides text, what are the history and purpose arguments behind finding waiver in the army/navy clauses? What about abrogation under § 5 of the 14th Amendment? Looking at the entire Constitution, do other amendments have enforcement authority?

As part of Ex parte Young, consider the following:

Florida amends its defamation statute (covering private civil actions for defamation) to eliminate the requirement that the plaintiff prove "actual malice" by clear-and-convincing evidence. This provision is invalid under the First Amendment. And individual who expects to speak and is worried about being sued under the statute brings an EpY action seeking to enjoin enforcement of the new law; he sues the Attorney General (to stop enforcement); the Chief Judge of the Florida Eleventh Judicial Circuit (to stop adjudication of any lawsuits under the new law); and the Clerk of Court for the Florida Eleventh Judicial Circuit (to stop acceptance and filing of any lawsuits under the new law). Is this a proper EpY action? 

I think/hope we will reach Standing late in the class, so that panel should be ready to go.

For the little bit on Monday and all of Tuesday, prep Constitutional and Statutory Considerations. In addition to the cases listed on the syllabus, focus on California v. Texas, Alliance for Hippocratic Medicine, and Murthy (all in Chemerinsky); TransUnion (discussed in Pfander); and SpokeO (discussed in both). Also read pp. 40-49 of the concurring opinion in this 11th Circuit case (you are welcome to read the whole thing).

• How would standing considerations arise in the lawsuit above against Florida's new defamation la?

 • 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 the story on her web-site of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.

More SCOTUS Original Jurisdiction

Florida filed a Motion for leave to file  an action against California and Washington, alleging they are violating federal law by issuing commercial drivers' licenses to unauthorized immigrants, causing harm in other states, including Florida.

Congress control over jurisdiction

The great theoretical debate in Fed Courts, which we save until the end of the semester, is Congress' power to "jurisdiction strip"--to limit the jurisdiction of the lower courts and/or SCOTUS through the Exceptions Clause). A case argued before the Court yesterday may raise those issues. This post from Prof. Dorf (Cornell) analyzes some of the jurisdiction-stripping issues. This is for later in the semester.

He also offers a nice way of understanding something we talked about already--How to understand what Congress does when it uses its exceptions power to enact a statute framed as granting the Court jurisdiction:

The Judiciary Act of 1789 and most subsequent legislation is phrased as conferring jurisdiction on the Supreme Court, but that's misleading. As the Court explained in Murdock v. Memphis, when Congress purports to confer less jurisdiction on the Supreme Court than what is set out in Article III, it is in essence exercising power under the Exceptions Clause to change the default. The default would be that the Supreme Court has, in the words of Article III, jurisdiction over "all" federal question cases. So, for example, the fact that Congress changed some of the Supreme Court's appellate jurisdiction from mandatory to discretionary via certiorari was an exercise of the Exceptions Clause power. And with the certiorari jurisdiction, the Court can resolve all circuit splits even though it has less jurisdiction than it would have if Congress had not exercised some of its power under the Exceptions Clause. 

Some items of note

1) This post describes the injunction-and-stay process in constitutional litigation and the applicable standards. A nice primer to help understand what is happening on the shadow docket and its effects--the government does not need to prevail at the end of the day (which may be two years away) to pursue constitutionally dubious policies.

 2) This Law360 article describes how Republican desire to split the Ninth Circuit has subsided now that the Court is almost evenly divided. Another illustration (not limited to Republicans--Democrats do this, too) of how structural arguments are rarely about structure and often guided by substantive or political objectives.

For Tuesday, October 21

Tuesday audio.

We will finish Non-Article III, with why have magistrates and with the bankruptcy judges under §§ 157-158.

Then move to Eleventh Amendment. Given that we have a week, just read the entire section; I hope to get about 1/2-way through in the double session. As part of the Ex parte Young reading, consider the following:

Florida amends its defamation statute (covering private civil actions for defamation) to eliminate the requirement that the plaintiff prove "actual malice" by clear-and-convincing evidence. This provision is invalid under the First Amendment. And individual who expects to speak and is worried about being sued under the statute brings an EpY action seeking to enjoin enforcement of the new law; he sues the Attorney General (to stop enforcement); the Chief Judge of the Florida Eleventh Judicial Circuit (to stop adjudication of any lawsuits under the new law); and the Clerk of Court for the Florida Eleventh Judicial Circuit (to stop acceptance and filing of any lawsuits under the new law). Is this a proper EpY action?

To be clear: We now move into Phase II of the course. Phase I considered the jurisdiction that all levels of federal courts wield; Phase II considers judge-made limitations on the courts' power.

For Tuesday, October 14

Monday audio. No class next Monday, October 20. Double session (9:30, then 11) next Tuesday, October 21.

We continue with Non-Article III. What is the argument that § 1259 is valid under Marbury? What is the argument (for and against) about how § 1257 and § 1258 affect the validity of § 1259? Pay attention to Chemerinsky's discussion of Jarkesy and how that affect the public-rights doctrine.

Change of plans--we will not get to Eleventh Amendment tomorrow. The next panel should be ready to go next Tuesday, October 21 (double session).

For Monday, October 13

Tuesday audio. District Court papers due Monday.

We continue with Medimmune and the remedies available to Genentech in its coerceive suit, as well as the anticipatory actions. Do the same with Skelly, then consider the jurisdictional questions.

Then move to Non-Article III Courts, which will take us into Tuesday.

Eleventh Amendment panel should plan on beginning next Tuesday. 

For Tuesday, October 7

Monday audio. District Court papers due next Monday. We will do our next make-up at 9:30 a.m. on Tuesday, October 21.

General Note: Some of the Supplemental Materials and some of the early-semester recordings are gone because the platform on which I uploaded them shut down. I am working to upload them; it will happen later this week. 

For tomorrow, we continue Three-Judge Courts, then move to Declaratory Judgments. For the problems on enforcement and anticipatory actions, ignore the med mal hypo and get specific:

    Nautilus Insurance Co. provides property insurance for the Fantasia Hookah Lounge. Hernandez, a Fantasia Hookah Lounge patron, is injured in a fight at the lounge. The insurance policy has an exclusion (no coverage required) for intentional torts.

We skipped the Rodriguez Notice of Removal because that was one of the documents that disappeared. You can find it at this link (H/T: Lucian). You can see how the argument becomes about the extent to which the plaintiff's claim (tortious interference with his individual contract) turns on an interpretation of the CBA--Rodriguez would argue this is Caterpillar, which MLB argues that determining whether the commissioner's conduct was "tortious" depends on what powers the CBA grants him.

For a further example: The Eighth Circuit held that state employment-discrimination claims were preempted by the LMRA because determining whether the plaintiff's differential treatment was discriminatory required the court to examine how the CBA treats different employees. (Tell your classmates this will be an argument case next fall).

The litigation over sending the National Guard to Portland goes beyond this class, except to note the following: The district court entered two orders (one Friday, one Sunday) titled as "Temporary Restraining Orders" and lasting 14 days. The government appealed (and sought stays) of both. Recall that a TRO is not appealable under § 1292(a)(1)--only a preliminary or permanent injunction. Appellate jurisdiction will require the Ninth Circuit to treat the TRO as a preliminary injunction; courts have developed doctrine for when they will do so. Alternatively, this presents an opportunity for the court of appeals to treat the NoA as a mandamus petition. (Would have made a nice reaction paper for someone). 

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.

For Monday, October 6

Tuesday audio--Part I, Part II. Court 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.

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? 

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.

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 Structure, Jurisdictional Overview, Removal, 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.

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.

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? 

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?

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.

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?

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.

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.

 

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.

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. 

 

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. 

 

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. 

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. 

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.

 

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.

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…

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.