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.