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).
