Sunday, December 16, 2018

Wednesday, December 12, 2018

Recent decision of interest

The First Circuit held that there is a First Amendment right to record government officials in public, even secretly. The case includes an interesting analysis of municipal liability in the decision to enforce state law, through a unique municipal interpretation of that law and prevailing interpretations.

Monday, December 10, 2018

Cert denied in Anderson

One of our opinion cases was from the Eighth Circuit on the question of whether there is a § 1983 action to challenge a state's determination of who is qualified to receive Medicaid funds (the state defunded Planned Parenthood). The Court today denied cert, over the dissent of Justices Thomas, Alito, and Gorsuch.

Saturday, November 17, 2018

Using Ex Parte Young

Here is a really interesting case showing some of the below-the-surface procedural puzzles created by Ex Parte Young. It also shows creative ways to raise constitutional issues, including directly to SCOTUS without having to pass through lower courts.

For those of you following the news (which you should be doing), there is debate over the statutory and constitutional validity of President Trump's appointment of Matthew Whitaker as acting attorney general. A number of actions have been filed or considered to challenge the appointment, obviously needing to work around standing problems (who has standing to challenge something like this)?

An EPY action challenges the constitutional validity of the federal law prohibiting felons from possessing firearms; defendants included then-Attorney General Jeff Sessions. The plaintiff lost below and petitioned for cert, naming Sessions (among others) as respondent. Yesterday, the petitioner filed a Motion to Substitute Rod Rosenstein (current Deputy AG) for Sessions as respondent, asking the Court to hear and resolve the succession question and declare that Rosenstein, not Whitaker, is the proper acting AG.

Thursday, November 15, 2018

Final Class

Final class audio.

Reax Papers for Abstention and Remedies due when you show up for Oral Arguments.

Opinions due to the Registrar (either in person or electronically) by noon on Tuesday, November 20. Please follow the written instructions about style, formatting, citation, etc. Focus on doing thorough legal analysis.

See everyone for Arguments on Thursday, December 13.


Wednesday, November 14, 2018

Final Abstention Class

Wednesday audio. For Thursday, prep the Younger and RF Puzzles; we will look at them if we have time.

Abstention Reax Papers due at oral arguments.

In addition to the material for tomorrow, consider the following, which provides a nice review of Remedies and everything else in the class:

A 17-year-old high schooler in Reno was suspended for using profanity in a phone call with a staffer of Nevada Representative Mark Amodei. The student, identified as Noah C., participated in the nationwide school walk-out in March (for which he received an unexcused tardy), during which participants called elected officials to advocate for gun control; Noah told the Amodei staffer that "congress people who are not acting on gun control reforms need to get off their fucking asses and do something." Amodei's office called the school, which suspended Noah (a suspension that also precludes him from serving in the class-council position to which he was elected). The ACLU of Nevada sent letters to the school and to Amodei.


Tuesday, November 13, 2018

Georgia County Violated the Civil Rights Act

Today a federal judge found that a County in Georgia violated the Civil Rights Act in its handling of absentee ballots during last weeks midterm election. The order enjoined the county from rejecting absentee ballots that contained an error or omission relating to the voter's birth year. The county was also ordered to count all of the absentee ballots containing such error. 

Read the order HERE

Friday, November 9, 2018

Thursday, November 8, 2018

Oral Argument Schedule (Amended) and Standing Order on Procedure

Argument Schedule (corrected) and Standing Order on Procedure.

I tried as best I could to mix-up the Civil Rights and Fed Courts cases.

Wednesday, November 7, 2018

Due Dates (Updated)

Just to clarify:

Because we are meeting on Thursday, Procedure Reax Papers are due at the beginning of class.

Reax Papers for Abstention and Remedies will be due when you show up for oral arguments.

Opinions are due at noon on Tuesday, November 20 (the day we will not have class), to be turned into the Registrar.

Upcoming Classes

Wednesday audio.

We will have class tomorrow (Thursday, November 8) at 1:45. We will jump ahead to Remedies, with the final panel (Kathleen, Carolina, and Amaia).

We then will meet twice next week at our usual time.

You should plan on attending the morning Fed Courts class next Wednesday (Nov. 14) and at least part of the lunchtime class (up through completion of our discussion of Rooker-Feldman).

For tomorrow, do Part A (Damages) and Part C (Atty Fees) of Chapter 9.

For next Wednesday with Fed Courts, we continue with Younger. Looking at what Younger covers, how can a federal plaintiff avoid Younger's bar, without having to rely on the exceptions?

We then do Rooker-Feldman. What is the source of Rooker and its underlying policy? Should it apply only to final state court orders or also to interlocutory orders? What is the difference between Younger and Rooker-Feldman? What about between Rooker and preclusion?

Prepare all of the Younger and RF puzzles; we may do some in Fed Courts or just when we are back on our own.


Monday, November 5, 2018

For Wednesday (Both Classes)

Monday audio.

A few final issues on tax injunctions: Why are challenges to tax credits not barred? Are there circumstances in which a federal court need not abstain even if the action does challenge the collection of taxes? What about other remedies for invalid taxes, such as damages or declaratory judgments (on the latter, the answer is different for federal and state taxes).

We then move to Younger Abstention; prep both Origins and Extensions. What is the connection between Younger and § 2283? What is the point of Mitchum, decided one year after Younger? What are the elements of "Our Federalism?" What is the scope and limits of Younger abstention?

Thursday, November 1, 2018

End of Procedure

Thursday audio. We are done with Procedure; Reax Papers due on Thursday (slip them under my door by noon). We will meet on Monday and Wednesday with Fed Courts next week (per prior post).

Wednesday, October 31, 2018

For Monday (Both Classes)

Wednesday audio. Remember that we will meet tomorrow (Thursday) at 2 p.m. to finish our discussion of Procedure.

Entity Liability Reax Papers for Civil Rights also due on Monday.

We continue with Pullman. What is the drawback to Pullman? What is certification, how does it work with Pullman, and how does it alleviate those concerns? Why would a plaintiff, sent to state court under Pullman, not want to raise his federal constitutional issues in state court? What is the potential problem if he doesn't and how do plaintiffs avoid this problem?

We then move to Statutory Abstention, but only the portions that overlap in the classes, focusing on § 1983 and the first exception to § 2283, as well as the tax injunction acts (§§ 1341 and 7421). What are the rationales behind the anti-tax-injunction statutes? What are the limitations on their scope, both as a matter of the text and of judicial interpretation?
    Civil Rights students: Read Part B Chapter 8.

We may at least begin our discussion of Younger Abstention, at least getting to Younger itself. What was the lawsuit in Younger? What is the connection between Younger and § 2283? What is "Our Federalism" and its elements? Is this abdication or postponement?
   Civil Rights: Read all of § 8.10.

Tuesday, October 30, 2018

Entity Reax Papers

Here, here, and here. Have at it.

For rest of this week (Updated)

Tuesday audio.

So here is the plan: Civil Rights will meet together with Fed Courts from 9-10:15 Monday/Wednesday in RDB 2008 (as four of you already are doing) in covering Pullman, Younger, and Rooker-Feldman (the abstention doctrines that are most relevant to civil rights). The panel for Abstention in Civil Rights (Peyton, Federica, and Allison) will join the panel for Abstention in Fed Courts and all will be graded accordingly. I have never merged the classes in this way, but since the material is overlapping, I thought it might work. This begins tomorrow morning.

We still will meet this Thursday to finish Preclusion, Statutes of Limitations, and Accrual. We will start with Migra for claim preclusion under § 1983 and Allen for issue preclusion. How does Justice Blackmun explain his decision dissenting in Allen and writing the opinion for the Court in Migra? Read the discussion of Wallace, which brings together preclusion, accrual, and Heck into one big mix. Assuming we get through all of that material on Thursday, we will not meet on our regular time for about a week or two.

Saturday, October 27, 2018

If anyone is writing on Stinnie

If anyone is writing their opinion on Stinnie v. Holcomb, here is a recent decision from the Middle District of Tennessee considering a challenge to a similar state law suspending drivers' licenses dues to unpaid court fees, including a Rooker-Feldman defense.

Thursday, October 25, 2018

For Tuesday

Thursday audio. Entity Reax Papers due on Tuesday. If you have not done so, check out the Ninth Circuit case mentioned in this post, which we will discuss on Tuesday.

We continue with Habeas and Heck. Why the sharp line between habeas and § 1983? When is this likely to come into play and what are its boundaries? Focus on the problems arising from FN 6 and FN 7 of Heck itself.

Then move to § 1983 and Preclusion and the application of issue and claim preclusion to § 1983 and civil rights litigation.

Two new cases of note

Two new cases of note.

First is from the Seventh Circuit, holding that there is no due process right to a hearing prior to having one's name placed on a list of under-investigation public school teachers, because there is no liberty or property interest in not being investigated. The court also makes the right argument in identifying the defect with this suit, which was brought against the state superintendent in his official capacity (and thus against the state)--the state is not a person under § 1983, citing Will.

Second is a case we will discuss in class today: From the Ninth Circuit, explaining why a habeas petitioner can proceed with a petition after his conviction was overturned by the state court, along with a discussion of the connection between § 2241 and § 2254.

Wednesday, October 24, 2018

Time Matters For Real...



I came across this article and it's pretty relevant to our discussion last class on three judge panels and the importance of having direct review to SCOTUS in "an action...challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." 

http://www.wfae.org/post/judges-too-late-new-nc-congressional-districts-november