Thursday, February 23, 2017

Hernandez v. Mesa

I recommend that you all read the argument transcript in Hernandez v. Mesa (the audio will be available tomorrow afternoon).

It turned out there was little discussion on qualified immunity, other than a couple of questions from the Chief and Justice Kennedy about whether qualified immunity can account for facts about the plaintiff (i.e., if case law shows that doing X violates the Constitution, does it matter that none of the case law involves a particular plaintiff or class of plaintiff). But there is a lot of discussion of Bivens,  some of which offers a nice review and illustration of of the open questions in the doctrine. In particular, pay attention to questions Justices Breyer and Kagan challenging the notion of Bivens "extensions" and arguing that we can read SCOTUS case law to mean "there is a Bivens action for the Fourth Amendment unless it is the military," suggesting a more-wholesale approach.

Worth a read (or listen, if you wait another day).

Wednesday, February 22, 2017

For Monday

Sorry for having to break class early like that. But we were not getting anywhere on a pretty significant point.

We continue with Qualified Immunity. Read Lane to see what, exactly the Court concluded and why. Then consider--what else might the plaintiff want as a remedy and how might that be affected by qualified immunity? Then go back to where we were--what does the Court say about the factual overlap between the current case and precedent? What is the problem with reliance on case law in this way? Prepare both the Puzzles and the Bogan case that I posted on Monday. Finally, police officers and other public officials are almost uniformly indemnified for any judgment against them; how should that affect the qualified immunity analysis?

We will start on Municipal Liability on Monday, so Panel II should be ready. How do the text and history of § 1983 explain both pieces of the holding in Monell? What makes someone a policymaker? Who are policymakers in our various cases?

Monday, February 20, 2017

For Wednesday

Monday audio.

We continue with Qualified Immunity. What is the standard for qualified immunity, what does each prong require, and how does it apply? How did it evolve to that standard? What can we conclude about qualified immunity from the recent SCOTUS summary reversals (White, Tyler, and Tolan)? What is the question over "order of battle" and how did the Court resolve it and why? In looking at that, what else do we want § 1983 cases to achieve in terms of the law?

In addition to the Puzzles assigned, consider this Complaint; accepting the allegations as true, can the defendant prevail on qualified immunity?

Friday, February 17, 2017

Federal Bar Association Programs

This is the flier for a series of programs sponsored by the FIU COL chapter of the Federal Association. The focus is on federal discovery, which is somewhat related to the subject of this class.

The next program is 5:30 p.m. on Tuesday, February 22, with three more to follow in March. I encourage everyone to attend, both to learn some things about discovery and as a networking opportunity.

Wednesday, February 15, 2017

Panel Assignments (Updated for remainder of semester)

Municipal/Supervisory Liability: Panel II
Eleventh Amendment: Panel III
Procedure: Panel I
Abstention: Panel III
Remedies: Panel II

RPI and Bivens Commentaries


Bivens I, Bivens II, Bivens III.

Have at it.

For Monday

Wednesday audio.

We continue with Prosecutorial Immunity. How did the Court identify the functions in Buckley and why? What is the logic behind witness immunity?

We then turn to Qualified Immunity. Why is that the default immunity? What is the argument that the immunity in such situations should be absolute? Be sure to pull White v. Pauly, the Court's most recent (cursory) exploration of Q/I. What has the Court been doing with recent Q/I cases?

Monday, February 13, 2017

For Wednesday

Monday audio. Just so you know, standing is beyond the scope of this class, but is covered extensively in Federal Courts. The classes fit together as a sequence and material had to be divided between them--standing, other than a cursory discussion, is a big focus in Fed Courts.

Bivens Commentaries due at the beginning of class on Wednesday.

We continue with Judicial Process Immunity. What are judicial functions and what are not judicial functions; what factors help identify the line? Be ready to discuss the Puzzle on judicial immunity. Who else, beside a judge, should get judicial (or quasi-judicial) immunity and why? Consider the additional clause at the end of § 1983 (added in 1996) and how it relates to judicial immunity.

How did prosecutorial immunity develop? How does it relate to, and differ from, judicial immunity? What is its Scope, Application, and Degree? What functions are prosecutorial and what are not?

Finally it goes without saying--but I will say it anyway--that 4 out of 13 people should not be missing class on a regular basis. I think it has been two weeks since everyone has been in the room at one time.

Friday, February 10, 2017

Professer Foley on CNN discussing WA's Standing:

I wish I could give a more substantive commentary, but I have to think on all of this a bit more. Enjoy!

Thursday, February 9, 2017

Washington v. Trump

Order denying a stay pending appeal. For our purposes, the things to notice are the standing analysis (Part III) and whether the district court's order was a Temporary Restraining Order, which is not immediately appealable, or a Preliminary Injunction, which is (Part II). We will get to some of this in Civil Rights Procedure and Remedies, later in the semester.

Pay attention to how the case proceeds from here. It looks like the case is now in the court of appeals, even though the district court never had a chance to hold an evidentiary hearing. So the court of appeals (and perhaps then SCOTUS) may decide this case on the record as it exists right now, which is unusual for major constitutional questions.

Wednesday, February 8, 2017

For Monday

Wednesday audio. RPI Commentaries due Monday; Bivens Commentaries due Wednesday.

We continue with Legislative Immunity. How did motive come into play in Bogan and how was that resolved? What is a legislator, entitled to immunity? To what conduct does legislative immunity attach and why? Does legislative immunity mean a legislator can never be sanctioned for misconduct? Does legislative immunity deprive injured persons of any remedy? What about the plaintiff in Bogan? What about a person injured by a new unconstitutional statute?

We then turn to Judicial Process Immunity, which covers both Judicial and Prosecutorial Immunities. What are the justifications for these two immunities? Why grant judges immunity? What is the scope, application, and degree of judicial immunity? Be sure to refer back to the exception clause in § 1983.

Monday, February 6, 2017

For Wednesday

Monday audio. RPI Commentaries due next Monday.

Before class on Wednesday, we can talk for a few minutes about the travel order litigation and where it stands. As I said, we will (hopefully) get to this later in the semester.

We have a few final points about Bivens, focusing on the "extensions" (or non-extensions) to new defendants, conduct, and situations. How does Minneci affect the analysis? How does Prof. Pfander interpret § 2679(b) to find a statutory equivalent to § 1983.

We then turn to Individual Immunities, covering Overview and Legislative Immunity. Panel I is back on.

What are the purposes of all the individual immunities? How did they become part of the § 1983/Bivens analysis, since none are mentioned in the statute itself. Consider the difference between constitutional Speech or Debate immunity and common law legislative immunity under § 1983. What does the Court mean by a "functional" approach. What makes immunity "absolute" as opposed to limited.

Saturday, February 4, 2017

Immigration Order Litigation

A judge in the Western District of Washington issued a purportedly nationwide TRO prohibiting enforcement of the entire immigration order, in an action brought by the states of Washington and Virgina. This is in addition to a different nationwide TRO, issued last weekend. It's a short order, 7 pages, devoid of much analysis. The TRO is in place until the parties can brief and argue a motion for a preliminary injunction.

A couple of things of note, some of which are part of this class and some of which are part of Federal Courts:

1) What we will cover is this idea of a "nationwide" TRO and whether one district judge, in a non-class-action brought by a small number of plaintiffs, stop the federal government from enforcing federal law against anyone anywhere.

2) As for what we do not cover, but will cover in Federal Courts:
   a) Standing--having been injured so as to be able to sue--may be a problem for the states. The court found them to have parens patriae standing to sue on behalf of their residents, although that theory has generally been rejected.
   b) The court enjoined the provision allowing for case-by-case determinations from the 7 nations, with preference giving to "minority" religions in those countries (i.e., non-Muslims). But that provision comes into play after the 90 day halt. If so, there is an argument the challenge to that provision is not "ripe" for judicial review, since it is not yet in force or able to be enforced.

3) What comes next is interesting. TRO's are not immediately appealable (although Preliminary Injunctions are). But the government could go to the Ninth Circuit (or to SCOTUS, if that fails) and ask for a stay of the TRO--the court order stopping enforcement would be stayed, meaning the executive order could be enforced. Stay tuned.

You should be recognizing by now that this type of litigation is truly complex.

Wednesday, February 1, 2017

For Monday

Wednesday audio.

Final points on RPI, going to overlapping statutory and constitutional/§ 1983 actions and when a statutory claim precludes a constitutional claim under § 1983. RPI Commentaries due on Monday, February 13.

We then turn to Actions Against Federal Officials, the Bivens action and its progeny. Here is the oral argument in Ziglar v. Abbassi; there is a lot to this argument, including pleading and qualified immunity (which we will get to soon), but it gives you a feel of the issues and future of Bivens actions. Panel III is on for this.

Miss Wormwood

Since none of our panelists wrote on Miss Wormwood, feel free to have at it here.

Monday, January 30, 2017

Under Color Commentaries

Here and here.

Have at it.

For Wednesday

Monday audio.

We continue with RPI, both on Enforcing the Fourteenth Amendment. We pick up with Okin and using equal protection to avoid DeShaney in cases of government inaction. Discuss the Complaint in Briggs as both a State-Created Danger and Equal Protection claim. We then turn to Procedural Due Process. What is the difference between substantive and procedural due process? How do state remedies interact with procedural due process? How do you reconcile the approach to § 1983 in Parratt and Hudson with the approach in Monroe? How do you reconcile Parratt and Hudson with Zinermon over how P/D/P works?

We then move to Parallel and Concurrent Constitutional Claims, looking at when statutory claims preclude constitutional claims under § 1983. How does Fitzgerald alter the analysis?

We will get to Claims Against Federal Officials for next Monday.

Wednesday, January 25, 2017

For Monday

Wednesday audio. Under Color Commentaries due at the beginning of class on Monday.

We continue with RPI: Enforcing the Fourteenth Amendment. What right(s) are included within "Substantive Due Process." How does state of mind come into play under § 1983, compared with § 242? What does it mean to say that § 1983 and due process are "not a font of tort law." What does DeShaney stand for and how do parties attempt to work around it? (Be sure to review the Complaint in Briggs v. Norristown, noting how the plaintiffs pled the due process claim). What is the difference between substantive and procedural due process? How do state remedies interact with procedural due process? How do you reconcile the approach to § 1983 in Parratt and Hudson with the approach in Monroe? How do you reconcile Parratt and Hudson with Zinermon over how P/D/P works?

No new reading for Monday. We will get to Parallel Claims on Wednesday of next week.

Monday, January 23, 2017

For Wednesday

Monday audio. I need a volunteer to serve as judge on an additional case during arguments.

Commentaries on Under Color due at the beginning of class next Monday.

We continue Rights, Privileges, and Immunities: Enforcing Federal Statutes. What are the possible bases for federal jurisdiction over § 1983 actions? What does "and laws" mean and what is necessary to enforce a statute through § 1983? How does the § 1983 contrast with the implied private right analysis? For Armstrong, read only the Intro, Part I, and Part IV of the majority opinion (we will come back to the rest later in the semester).

We then move to RPI: Enforcing the Fourteenth Amendment. For now, read only Daniels, Davidson, and Hudson, along with the Understanding reading. On Wednesday,  we will hit the basic introduction of what constitutional rights are enforceable and the basic elements; next week, we will get more in-depth on the details of various rights.

Saturday, January 21, 2017

Cases for Opinions and Arguments

Order of the Supreme Court of the United States granting certiorari.

Note that the final case only has one advocate and one judge assigned. Since we have an odd number of people, I need someone to volunteer to judge an extra case. Let me know following class on Monday if you are willing to do so.

The order includes the citation for the lower-court opinion under review. The case numbers are made up.

The case you pick for your opinion must be a third case, different from the cases you are assigned to judge and argue. Two cases (City of Milwaukee and Vreeken) have separate issues and are treated as separate cases for the arguments. If you were assigned to judge or argue one issue in these cases, you may not write your opinion on the other issue.