For Monday, February 2

Tuesday audio. Under Color papers due at the beginning of class.

We skipped this for time: In § 3.08[4] (p.90): In 2023, the Ninth Circuit overruled precedent and fell in line with all other circuits: § 1981(c) clarifies the scope of § 1981(a) but does not provide a new cause of action. Section 1981(c) is enforced against governments through a § 1983 action. 

Finish Chapter 3, working through DeShaney and the associated puzzles. Focus on the connections between constitutional rights and statutory rights. 

For Tuesday, January 27

Monday audio. Panel # 1 papers due next Monday, February 2.

Prep and review Ch. 3, Parts B (including the text of the sub-section 23, the Free Choice of Provider provision) and Part A (on enforcing the Constitution). 

Consider an additional puzzle and whether the claim would be under the 4th or 14th Amendment:

    • Sosa: David Sosa was arrested and taken into custody twice on an outstanding warrant for a person with the same name but sharing no general features. The second time, he is held for three days until the sheriff's department runs a check to determine they have the wrong person.

More on the Church protest in Minneapolis

Following on our conversation from last week:

Three leaders of the group that entered the Minneapolis church to protest the pastor were arrested under a criminal complaint (a document that a magistrate used to issue arrest warrants); as we predicted in class, it charges § 241 conspiracy and violation of the Free Access to Clinic Entrances Act. The magistrate declined to issue arrest warrants for five others, including journalist Don Lemon. A district judge ordered the three released.

DOJ asked Chief Judge Schiltz of the District of Minnesota to issue the remaining arrest warrants; when he did not act immediately, DOJ petitioned the Eighth Circuit for a write of mandamus, although under seal and without serving the petition on the chief judge. Schilitz then sent two letters--one to the DOJ attorney handling the matter and one to the Chief Judge of the Eighth Circuit. Both are worth reading, as it is pretty extraordinary for a federal judge to say stuff like this in public documents.

Some general notes: 

    Although we will not discuss this case directly, this controversy is relevant as an example of what we will discuss in Claims Against Federal Officials and in Individual Immunities (especially Judicial and Prosecutorial).

    A complaint does not suffice as a charging instrument for felony charges; the Fifth Amendment requires those be pursuant to grand-jury indictment. The complaint is sufficient if the government pursues misdemeanor charges. Or it is sufficient to obtain an arrest warrant (which the government used to stage a perp work, complete with AI-altered photographs) and start the clock for submitting the case to a grand jury for an indictment.

    For those who have not yet taken Fed Courts (and I encourage you to do so): A magistrate is a sort-of deputy judge on the district court who handles preliminary criminal matters such as arrest warrants. The magistrate's decisions are reviewable by a district judge. A writ of mandamus is a petition to a court of appeals against a district court judge, seeking an order compelling the lower court to do something. 

Private university police act under color

So says the Sixth Circuit. 

For Monday, January 26

Tuesday audio. Argument assignments here. Here is the FACE Act, which provides for criminal penalties and presumably would be the underlying right enforced through a § 241 prosecution.

Finish the problems for Under Color. Panel # 1 will finish at some point Monday; papers will be due the following Monday.

Panel # 2 should be ready on Monday (sit at the far side of the room or the second large table if we are outside); prep the intro (§ 3.01) and Part B. What is the difference among a right, a right of action, and a jurisdictional grant? What are the four sources for rights of action for federal statutes? How can the Spending Clause be enforced without private civil litigation?

Also, since events overtook the book: The Court held 42 U.S.C. § 1396a(a)(23)(A)--known as the "free choice of provider provision to Medicaid--was not enforceable under § 1983. Be ready to make the arguments for both sides on this.

Cases for Oral Argument

Supreme Court Order granting certiorari. Standing Order on Procedure.

Make sure your name appears twice (once as judge, once as advocate). Everyone should have at least a one-case break between their cases.

Sometime in early April I will gather information as to who will represent which party and who will serve as Chief Justice for each panel. The Standing Order describes how arguments function.

Remember that you can write about these cases for your reaction papers except for the case you are assigned to argue and the case you are assigned to judge. So seven of these cases are fair game for each of you. I will provide a separate list of several cases that did not make the cut, all of which are fair game for writing.

This course in the current historical moment

This essay from David French in the New York Times touches on issues that form the heart of this case.

Focus on the beginning of the piece, imagining a conversation between Renee Good's family and an attorney. The federal statute he mentions is § 1983; we will discuss in a few weeks the 1971 case (and its later limits). And his theme--we have limited executive accountability--plays out in several other doctrines we will cover. Meanwhile, those who have taken Fed Courts should recognize the supremacy clause immunity that French mentions (and the fact that any state prosecution would take place in federal court).

French also introduces an idea that we touched on a bit in the introductory materials and will return to later: Since the Civil War and Reconstruction, we assume states threaten civil rights and the federal government will protect them. Current events suggest, at least in some places, the opposite is true. But we may lack the legal frameworks to deal with that.

For Tuesday, January 20

Tuesday audio. No class on Monday, as you all know better than I do.

Ricardo raised an issue after class: Trump could not act under color of state law because he is a federal official. This is correct. We will get into the different cause of action that are, or might be, available against federal officers; for the moment, assume the cause of action exists. For present purposes, recognize that we apply the same analysis for when someone acts under color of state law and when someone acts under color of federal law. The same issue arises in the Wasatch Equality and Google puzzles in § 2.03.

For Tuesday (not Monday, thank you very much): Prep the rest of Chapter 2. I expect to finish with this on Monday the 27th and transition into RPI. 

Also, I will post and assign cases for oral argument next week. 

Final Panels

Final panels after the jump. Please review and make sure you are assigned to 3. Six topics have seven people; two topics (on which we spend less time) have six.

For Tuesday, January 13

Monday audio. Final panel assignments will be posted after this. I will assign cases for argument early next week.

We continue with § 2.02, starting with the plaintiff's arguments in Butler. Remember to read Lindke in lieu of p.30; decide Puzzle # 2 (Davison) under that new standard. Consider: 1) Would Knight Foundation v. Trump come out differently under Lindke? 2) Can a legislator ever satisfy Lindke?

Then prep § 2.03 and the assigned puzzles. 

For Monday, Jan. 12

Monday audio. Review Assessments and Syllabus; questions in the first few minutes of Monday's class.

I wanted to draw attention to all the laws in the wave of 1960s/1970s Civil Rights legislation as well as in the post-1980s modern period. We did not discuss all of them in class. In addition to what is mentioned in the reading, note also Title IX of the 1972 Act (extending the laws prohibiting federal funds recipients (such as universities) from discriminating because of sex) and the Family and Medical Leave Act (FMLA), enacted in 1993.

For Monday, prep §§ 2.01-2.02, along with Lindke (replacing the discussion on p.30).

Welcome to Civil Rights

Welcome to Civil Rights and the FIU Civil Rights Blog. Below are several posts you must read and follow prior to our first class meeting on Monday, January 5.

All classes will be recorded and posted to the Civil Rights Blog. 

To read the blog, go to http://fiucivilrights.blogspot.com; posts can be read going down from most recent to least recent. For complete information on the purposes and uses of the blog, see Syllabus and Assessments.

 

Panels will be assigned and posted the week prior to class, once I know the final enrollment.

 

Finally, to put you in the mood for the course:

Panel # 1 (for Second Class)

Everyone will be assigned to three (3) panels, at random. I have assigned only Panel # 1 (Under Color); you will begin on the second day of class (Monday, January 12). I will provide final panel assignment during the second week of class, once enrollment is final. The remaining topics are also listed below.

Panel # 1: Under Color (6)

Seth Morton               Allyssa Lopes

Eliza Anderson          Ashley Miranda

David Wilson            Karlee Beneventano

Noah Fineberg 

 

Panel # 2: Rights, Privileges, and Immunities (7)

Panel # 3: Claims Against Federal Officials (6)

Panel # 4: Individual Immunities

Panel # 5: Entity Liability

Panel # 6: Civil Rights Procedure

Panel # 7: Abstention

Panel # 8: Remedies 

Supplemental Materials

After the jump, some additional materials; they are indicated as (Blog) on the Syllabus. When assigned, please print and have them with you in class, especially statutory provisions.

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. Review Assessments for more.

After the jump are tips on both. I expect you to  these (it will improve your papers), especially as to how you cite rules and statutes and how you talk about courts.

Those who have taken a class with me will be familiar with all of this.

Course Materials and Week One Assignments

Review Syllabus and Assessments; these contain complete details about the course, assignments, pedagogical approach, course rules, and grading methods. You should bring the Syllabus with you to every class.

Class Meetings 

• No class on Tuesday, January 6. Will be made up.

• No class on Monday, January 19 for MLK Day.

• No class on Monday, March 23. Will be made up. 

Technology and Class Conduct: 

Use of laptops, tablets, book readers, smart phones, and similar devices during class is absolutely prohibited, unless you have received permission or accommodation in advance.

AI Policy

Do not do it.  

The use of ChatGPT and other generative AI, LLM, or similar programs for written assignments is prohibited and will be deemed a violation of FIU and College of Law academic policies. 

Plagiarism Policy

Do not do it.

Required Course Materials: 

Howard M. Wasserman, Understanding Civil Rights Litigation (3d ed. Carolina Academic Press 2023)

     Appendix A: Constitution of the United States
     Appendix B: Emancipation Proclamation

     Appendix C: United States Code and Federal Rules of Civil Procedure (selected provisions) 

Civil Rights Blog (Supplemental Materials) (additional puzzles, cases, stories, and information may be posted as the semester goes along). 

 

Note on Reading and Class Discussions

All reading will be in Understanding Civil Rights Litigation, supplemented by a handful of cases and additional materials. We will spend most class time on the Puzzles from each chapter and  less time working through the doctrine, especially on the problem-intensive sections. This is the trade-off: There is less reading in this class and the reading is more straightforward than parsing cases yourself. But you must learn the doctrinal and theoretical basics (including the facts and details of key cases listed on the syllabus) through the short and straight-forward reading in preparing for class; you must understand the basic rules, standards, and ideas on a broad level, then apply that to our discussion of the Puzzles and problems. 

First Day Assignments: After the jump.