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.