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.
