Thursday, September 20, 2018

For Tuesday

Thursday audio. Bivens Reax Papers due Tuesday.

We pick up on Judicial Process Immunity with the judicial immunity puzzles; consider the four different versions involving Judge Littlejohn. What is the full level of judicial immunity--absolute, but from what? Who enjoys judicial immunity besides judges? Does judicial immunity deny all remedy? Be sure to look at the exception clause in § 1983, added in 1996.

Then turn to prosecutorial immunity, considering its origins and evolution. What is its scope and level? What are the other checks on prosecutorial misconduct? How does the one case/many cases distinction work for prosecutorial immunity and is it still viabale after Van de Kamp?

Wednesday, September 19, 2018

Background to United States v. Price

You will recall United State v. Price, which established conspiracy as a basis for finding joint public-private participation for under color. The underlying events involved the murders of James Chaney, an African-American Mississippian, and Andrew Goodman and Michael Schwerner, two Jewish men from the northeast who were in Mississippi as part of the "Freedom Summer" of 1964, seeking to help register African-Americans register to vote.

The pages pictured below are from the prayer book from the Jewish Holy Day of Yom Kippur, describing the three men, what happened to them, and some of the reactions to it; the three are memorialized in the service as having given their lives for a cause. In addition, the rabbi mentioned in the excerpt was at the temple I attended as a child.









































Tuesday, September 18, 2018

For Thursday

Tuesday audio.

We continue with Legislative Immunity. Given those definitions of legislative functions, what actions are legislative and what are not legislative? Why was the decision in Bogan to basically fire someone deemed legislative? If legislators are immune, is there any way to check their misconduct? Be ready to discuss the assigned puzzles.

Then move to Judicial Process Immunity, which considers judicial and prosecutorial immunity together. What is the connection between them (prosecutorial immunity began as a form of quasi-judicial immunity) and why immunize those two actors? What checks are there on judicial or prosecutorial misconduct? What is the scope of each?

Thursday, September 13, 2018

For Tuesday

Thursday audio. R/P/I Reax Papers due Tuesday.

We will have some final thoughts on Bivens, including some points from Justice Breyer's dissent in Abbasi and the question of a federal cause of action, including Pfander's interpretation of § 2679(b)(2)(A). Bivens Reax Papers iwll be due on Tuesday, September 25.

We then move to Individual Immunities, beginning with Legislative Immunity; read § 5.01 and Part A of Chapter 5. What are the policy purposes of immunity in general and legislative immunity in particular? What is the scope, level, application, and source of legislative immunity? What are legislative acts and why are they protected? What is the effect of being unable to sue legislators on the ability of an injured person to obtain relief? Panel B is back on.

Tuesday, September 11, 2018

For Thursday

Tuesday audio. R/P/I Reaction Papers due next Tuesday.

We move to Claims Against Federal Officials. Are there any statutory bases for claims against federal officials? How does Pfander read § 2679(b) to make it function like § 1983? What is the difference in approach in Bivens between Justice Brennan and Justice Harlan? How has the Court restricted Bivens since the 1970s? What did Abbasi do to the vitality of Bivens and how? How did Justice Breyer respond to the majority in Abbasi?

Under Color Commentary

Here. Comments and responses welcome.

Monday, September 10, 2018

For Tuesday

Sorry for the delay in the post. Thursday audio.

Finish the remaining portions of Chapter 3; we will finish discussing procedural due process, then move to concurrent constitutional claims. Be ready to discuss the evolution of due process from Parratt to Daniels to Hudson to Zinermon. How do you reconcile the lines of doctrine? How should courts determine whether a plaintiff can bring claims under both a civil rights statute and the Constitution through § 1983?

We should begin our discussion of Claims Against Federal Officials and the preliminary points leading to Bivens (back to Panel A); prepare §§ 4.01 and 4.02.

Monday, September 3, 2018

President Grant and Reconstruction

Ron Chernow (who wrote the biography of Alexander Hamilton that was the basis for the Broadway show) has a new biography of Ulysses S. Grant. This short book review by Professor Robert Pushaw highlights Grant's important role in supporting and implementing the civil rights and reconstruction laws that we discussed at the beginning of the class and how things changed quickly after the Compromise of 1877. Worth a read.

Thursday, August 30, 2018

For Thursday

Thursday audio. Under Color Reaction Papers due in class Thursday. Remember that we will not meet on Tuesday.

We continue with Constitutional Rights and the work-arounds for DeShaney. What sorts of relationships qualify as "special." What is the idea and application of "state-created danger"? What are the other ways plaintiffs can work around the limits of DeShaney and bring claims resulting from third-person harms?

Prepare the remaining two parts of Constitutional Rights and Chapter 3: § 3.04 (Procedural Due Process) and § 3.13, on parallel claims.

We will not finish R/P/I, so the first panel will not be on until the following week.

Tuesday, August 28, 2018

For Thursday

Tuesday audio. Under Color Reaction Papers due next Thursday, September 6.

We continue with and laws actions. What is the difference between the second step of the "and laws" analysis and the second step of the implied right analysis--congressional intent to do (or not do) what? And what sorts of things indicate congressional intent under each analysis? Why did Amstrong come out as it did?

We then turn back to constitutional rights. We are going to skip Procedural Due Process and do Substantive Due Process first. So for Thursday, prepare §§ 3.02, 3.04, and 3.05; leave § 3.03 for next week. Note the one Puzzle in § 3.05[6].

Finally, I would like to move class back by 15 minutes, to 1:45. I have to be somewhere by 3:55 and it has been taking me 20 minutes to leave campus. Please email me if the change will not work. Barring any further word, I will see everyone at 1:45 on Thursday. Thank you for your consideration.

Thursday, August 23, 2018

For Tuesday

Thursday audio. Still checking on how Tuesday, September 4 is going to be treated and how that affects us.

We will finish our discussion of Under Color with Lugar and whether a private litigant acts under color when using judicial or legal procedures that prove constitutionally invalid; consider both sides of the arguments in Lugar. And consider the following question:

In June, the Supreme Court decided in Janus v. AFSCME that a state law requiring non-members of government-employee unions to pay "agency fees" to cover certain union activities violates the First Amendment. Union members now want to sue the union to recoup fees paid over the past several years, arguing that the Union's collection of those fees (pursuant to state law) violated the First Amendment (as now understood in Janus).

We then move to Rights, Privileges, and Immunities: Andl Laws; read § 3.01 and Part B of Chapter 3. Consider the connections among the grants of jurisdiction and § 1983 as a cause of action. What is the connection between private statutory rights of action and § 1983 "and laws" actions?

One final point on Under Color, to show how it continues to show up. Russell Beckman is a Green Bay Packers fan who holds season tickets for the Chicago Bears solely so he can attend the annual Packers-Bears game, decked out in Packers gear. The Bears would not allow him onto the field for a special season-ticket holder event in the Packers gear; he sued, claiming that the Bears discriminated against him because of the viewpoint expressed in his clothing, in violation of the First Amendment. The court denied a 12(b)(6), finding Beckman had sufficiently alleged state action under a combination of close nexus symbiotic relationship. Worth a read.

Overwhelming Encouragement or. . . .

After criticizing ESPN for planning on not televising the national anthem before “Monday Night Football” games this season, President Trump ratcheted up pressure on the network Wednesday. He initiated a petition demanding that ESPN, which he described as “spineless,” show pregame performances of the song...Read More Here.



Tuesday, August 21, 2018

For Thursday

Tuesday audio.

We continue with Under Color; go through the final tests and approaches, including when constitutional issues might be raised even without a defendant acting under color. What is the problem with the approach in Lugar? Then prepare the Puzzles in the book and the following case:

In June, the Supreme Court decided in Janus v. AFSCME that a state law requiring non-members of government-employee unions to pay "agency fees" to cover certain union activities violates the First Amendment. Union members now want to sue the union to recoup fees paid over the past several years, arguing that the Union's collection of those fees (pursuant to state law) violated the First Amendment (as now understood in Janus).


Also, someone familiar with the controversy and feeling adventurous make the "close nexus" argument for why the NFL acts under color in stopping players from protesting during the National Anthem.

My hope is that we will finish Under Color on Thursday, then begin Rights, Privileges, and Immunities on Tuesday.

Sunday, August 19, 2018

Florida Counties Violating 1965 Voting Rights Act

Hello class,

I found this article while scrolling through The Huffington Post. The article is about certain Florida counties that have violated the 1965 Voting Rights Act by failing to offer ballots in Spanish and other election materials to citizens of limited English proficiency. I found it to be somewhat analogous to United States v. Classic. One of the affected citizens filed suit in federal court last Thursday. I thought it was a relevant read! Here's the link:

https://www.huffingtonpost.com/entry/florida-spanish-ballot-puerto-ricans_us_5b75f86ae4b05906b411ce23

Podcast on Reconstruction

Worth a listen: An episode of Backstory, a history podcast, devoted to Reconstruction. It talks about how the Radical Republicans in Congress tried out a lot of what would become the Reconstruction legislation in Washington, D.C. during and just after the Civil War. And it talks about how change cannot come from the passage of laws, but depends on meaningful enforcement, which is subject to social as well as legal condutions.

Friday, August 17, 2018

Argument/Opinion Cases

Order of the Court granting certiorari is here.

Everyone is assigned one case to argue and one case to judge; you will decide with your counterpart who will argue which side (Petitioner is listed first, obviously) and who will serve as Chief Justice. You have 7 other cases to choose from for your opinion.

(Two cases that are available for opinions are used in both this class and Fed Courts. You may not write on a case for this class that you are arguing, judging, or writing on for that class).

Possible Date Change for Oral Arguments

FYI: While we are combining the arguments for this class and Fed Courts, I have been informed that several Fed Courts students have exam conflicts with Wednesday argument. So I am considering moving the combined arguments (both classes) to your original date of Thursday, December 13.

Stay tuned.

Thursday, August 16, 2018

For Tuesday

Thursday audio. As we discussed, oral arguments will be merged with the Fed Courts arguments and will be held on Wednesday, December 12 (so you get to begin Christmas Break early).

We will finish the first set of "Under Color" Puzzles, then move to a brief discussion of Justice Frankfurter's more limited view.

Read the rest of Chapter 2, going through each of the various tests for rendering a private actor under color and the assigned Puzzles. Also, consider one more case:

In June, the Supreme Court decided in Janus v. AFSCME that a state law requiring non-members of government-employee unions to pay "agency fees" to cover certain union activities violates the First Amendment. Union members now want to sue the union to recover fees paid over the past several years, arguing that the collection of those fees (pursuant to state law) violated the First Amendment.

The agency fees worked as follows: State law required the non-members pay the fees. The government employer withheld the calculated amount from the employee's paycheck and transferred the money to the union.

Tuesday, August 14, 2018

For Thursday

No audio today, but I will begin on Thursday. We will spend the first couple of minutes talking about the syllabus and assignments, including moving oral arguments. Panel I is up for Thursday.

We leave with the question we ended on--what are the differences between § 242 and § 1983, if both are vehicles for enforcing rights appearing elsewhere?

We then begin State Action/Under Color. Prepare §§ 2.01-2.02, including the assigned Puzzles in § 2.02[4]--be ready to argue both sides. What does under color mean after Monroe/Screws? Does that understanding make sense or is the dissent in Monroe correct? How should courts understand off-duty law enforcement?

Monday, July 16, 2018

Assigned Panels (Updated)


Given the size of the class and for simplicity, I am going to create two panels.

Panel I: Payton McCann, Allison Gordon, Federica Vergani
Panel II: Amaia Sanz de Acedo, Kathleen Leon, and Carolina Sanchez

Folks in Panel should be especially ready for Tuesday and will be on come Thursday.

Assignments after the break.