Wednesday, May 18, 2016

Monday, April 25, 2016

The cost of § 1983 litigation


Final notices

Thanks for a great semester. For those of you interested in the material or who think you want to do anything involving federal litigation, I encourage you to take Fed Courts in the fall, which explores many of these issues and more, in the context of all federal-court litigation.


Equitable Relief commentaries should be sent to by 10:45 Wednesday.
Attorneys' Fees commentaries should be sent to by 10:45 next Monday.
• Oral Arguments begin promptly at 9:30 on Friday, May 13. Obviously, be there early.

In preparing for arguments, you can move away from the moot court formalities ("Along with my partner, ___, we represent ____"). Conduct this like a real argument. For guidance:

• You can find SCOTUS arguments for this term here.
• Arguments from my fall Fed Courts are here.
• Arguments from Civil Rights in fall 2014 are here.

Thursday, April 21, 2016

New state action case

The Tenth Circuit holds that the private operator of a ski resort on leased federal lands is not a state actor. The court rejected arguments under symbiotic relationship, close nexus, public function, and conspiracy/joint participation. A nice, concise review of the doctrine. And likely to be an oral argument case for any of your friends who take the class next year.

Wednesday, April 20, 2016

Oral Arguments

Argument Schedule. Standing Order on Procedure.

For Monday

Wednesday audio. Papers are due at the beginning of class on Monday; do not be late.

Equitable Relief Commentaries will be due at 10:45 a.m. next Wednesday and can be sent via email to Veronia Torres (; please indicate in the email that this is for Civil Rights. You also can drop it in my office. Attorney's Fees Commentaries will be due via the same method by 10:45 a.m. on Monday, May 2.

We continue with Attorney's Fees, which likely will take only part of the class. What is the Catalyst Theory of prevailing party and what was the divide within the Court over its rejection? How are attorney's fees calculated? How should fees be calculated when the plaintiff only recovers nominal damages?

Monday, April 18, 2016

A somewhat related case

SCOTUS today held in Welch v. United States that a prior decision, Johnson v. United States, applied retroactively on habeas.

As you may recall when we discussed Heck and the habeas/§ 1983 line, one of the limits on habeas review is that the federal court applies the law in effect at the time the conviction became final on direct review, not the law in effect at the time of the habeas (or post-conviction) decision. There are exceptions to this; one is where we have a change in substantive law (for example, where the statute under which the petitioner was convicted has been declared invalid). This makes sense--if I was convicted under a statute that no longer is constitutionally valid, that conviction should not stand. Welch held that the rule of Johnson (that a certain provision of a federal criminal statute was unconstitutionally vague) was substantive and thus applied retroactively.

For Wednesday

Monday audio. Damages Commentaries due Wednesday.

We will finish a few last points on Injunctive Relief, specifically on § 14141. Why is there less resistance to injunctions/consent decrees entered under this than in private § 1983 actions?

We then turn to our final section, Attorney's Fees. What is the purpose of attorney's fees and how does it relate to the concept of the private attorney general? How does that purpose affect the award? How do attorney's fees interact with the rules regarding compensatory damages? How do attorney's fees interact with the limited scope of an injunction and the fact that an injunction only binds the named defendant as to the named plaintiffs? What are the disadvantages to attorney's fees? When is a plaintiff a prevailing party and when is she not a prevailing party.

Wednesday, April 13, 2016

Argument Schedule


For Monday

Wednesday audio. Rooker Commentaries due Monday; Damages Commentaries due Wednesday.

We continue with Equitable Relief.
   • When might a person benefit directly from an injunction, even when not a party to the case (and thus to the injunction)?
   • When might a court stay its judgment pending an appeal? When might it stay an order granting an injunction (i.e., not allowing the injunction to go into effect, meaning the challenged law remains enforceable)? When might a court stay a decision denying an injunction (i.e., not allowing the non-injunction to go into effect, meaning the challenged law remains unenforceable)? Does it matter whether you have a positive or negative injunction?
   • What is the history and purpose of structural-reform litigation and injunction? What are the problems with this type of litigation?
   • How does a party enforce an injunction? How does a party get out from under an injunction?

This will take us through Monday. We will do Attorney's Fees on Wednesday and the last class on Monday, April 25.

The limited scope of state-created danger

This recent Eighth Circuit decision, holding that a plaintiff cannot make a state-created danger claim where officials released a prisoner, because the increased threat to the general public (as opposed to a "limited, precisely definable group") is insufficient to show a Fourteenth Amendment violation. More importantly, note the concurring opinion, agreeing with dismissal but suggesting the need to reconsider (and broaden) the elements to make state-created danger less difficult to establish.

Monday, April 11, 2016

Change in oral argument

Some changes in the argument schedule:

1) I need a volunteer to take on a second case as Justice, for Li v. Demuth. You would not be graded for this argument, but your voluntarism would be noted. Please email me if you will do the additional case.

2) We will split the argument in Meshal v. Higgenbotham. Ariel will argue for Petitioner before the assigned Court. We then will break things down and I will argue for Respondent before a Court of the full class, with Chief Justice Talcott presiding.

For Wednesday

Monday audio.

We continue with Damages. Given the problem of causation and intangible injuries, how can we establish the value of damages on a claim? Is the damages regime the Court has established consistent with the purposes and goals of § 1983?

We then turn to Injunctive Relief. Note that there are a lot of provisions to review (all explained in Understanding). Download Shapiro v. McManus (decided in January). Also, download DOJ's Petitte Policy. Go back and review your notes (from Abstention) about the process for seeking injunctive relief. What are the categories and distinctions among types of injunctions and why do those distinctions matter? Who is bound by an injunction and who benefits from it?
  • Rethink the events surrounding Kim Davis in Rowan County, Ky. How does understanding the nature and reach of injunctions inform your understanding of those events?
  • Considering all the doctrines we have studied in this course, what seems to be the preferred remedy in constitutional litigation--legal or equitable and why?
  • How does the existence of § 14141 undermine the Court's objections to broad structural injunctions?

Thursday, April 7, 2016

AEDPA and the criminal justice system

This piece discusses issues within the criminal justice system related to prosectutorial misconduct. It includes a discussion of AEDPA, the law that imposed the limitations on § 2254 review.

Wednesday, April 6, 2016

For Monday

Wednesday audio. Younger Commentaries due next Wednesday; Pullman/§2283 Commentaries due on Monday.

We will complete our discussion of Rooker-Feldman and Abstention Review. Be ready to discuss all the abstention issues (Pullman, Younger, and RF) in Marie v. Moser, Tyler v. Commonwealth, and the Puzzles. How do you distinguish what is governed by Rooker-Feldman and what is governed by Younger?

We then turn to Remedies: Introduction and Damages.

Monday, April 4, 2016

For Wednesday

Monday audio. Once again, the lateness/abseteeism is unacceptable. It has been more than a month since we have had all 16 people in a class session. Multiple people are routinely coming in after 10:45 (which, seeing as the class originally was scheduled to begin at 10:30, is especially problematic). So that ends now. I expect everyone in class on Wednesday, on time. And I expect that to be the case for the rest of the semester. OK, end of lecture.

We continue with Younger Abstention. Why was abstention not appropriate in Steffel and Doran? When is a case "pending" and how did Hicks apply that concept? When else will "Our Federalism" not be implicated? In addition to the Younger Puzzle, be ready to discuss the Younger analysis in Tyler.

We then will move on to Rooker-Feldman and Abstention Review. In addition to the Puzzles, get Marie v. Moser 65 F. Supp. 3d 1175 (D. Kan. 2014) and review the discussions of Pullman, Younger, and Rooker-Feldman.

Wednesday, March 30, 2016

For Monday

Wednesday audio. Procedure Commentaries are due on Monday.

We will finish our discussion of Statutory Abstention. How did the Mitchum standard ("specific federal right enforceable in federal court") apply to § 1983? How did the purpose of § 1983 overcome the text as an expressly authorized exception to § 2283? What is the purpose of the tax injunction acts and how do they apply?

We then turn to Younger Abstention; read both Basics and Extension.
   • What is the underlying goal of Younger?
   • Given Younger, what is the point of Mitchum (decided one year later)?
   • What is "parity" and how does it explain Younger?
   • Is Younger postponement or abdication? Will these issues ever return to federal court?
   • How does Sprint alter the scope of Younger?
   • What are the limits on Younger's scope?

Monday, March 28, 2016

For Wednesday

Monday audio. Procedure Commentaries due next Monday. Do have a look at Justice Scalia's concurring opinion in Wilkinson for the additional reason he offers for why Heck does not bar challenges to prison administrative proceedings.

I will get oral argument assignments at the beginning of class.

We now turn to Abstention, specifically Introduction, Pullman Abstention, and Statutory Abstention. Review your notes from our earlier discussion of equitable relief, declaratory judgments, and three-judge courts, in addition to the new material assigned.
   • What is the idea of "mandatory jurisdiction"? How does abstention undermine that idea?
   • What is the difference between abstention as "abdication of jurisdiction" and abstention as "postponement of jurisdiction." Which is involved in Pullman?
   • When is Pullman abstention appropriate? When is it not?
   • What is certification and how does it interact with Pullman?
   • How does Mitchum interpret § 2283?

Finally, because I heard people discussing this prior to class: Here is the Complaint in the challenge to the new North Carolina statute regulating use of public restrooms. Knowing what you know so far, you can understand some of the choices the plaintiffs made in claims to raise, who to sue, etc. We will get back to some of this when we discuss remedies at the end of the semester.

Wednesday, March 23, 2016

For Monday

Wednesday audio.

We continue with Procedure. We continue with Heck, specifically its application to challenges to administrative decisions affecting prisoners (parole, prison discipline, etc.).

We then turn to Res Judicata. What are the elements of both claim and issue preclusion and how do those doctrines apply in § 1983 litigation? What were the arguments that § 1983 represents an exception to § 1738 (the Full Faith and Credit Act) and why did the Court reject those?

We then turn to Wallace v. Kato, which brings together a number of procedural doctrines. What was going on there? How did the Court analyze the accrual question? How does Heck tie into the case.

Finally, time permitting, we may get to the preliminary material for Abstention. So prepare Introduction to Abstention and Equitable Relief; we will then turn to Pullman Abstention on Friday.

Please confer with opposing counsel and co-Justice to decide roles for oral arguments.

Monday, March 21, 2016

For Wednesday

Monday audio. Supervisory Liability Commentaries due next Monday.

We continue with Jurisdiction, Motions, and Appeals, starting with Camreta. How does the Court handle winners' petitions and why? How does the reasoning in Camreta conflict with Pearson's explanation for rejecting "merits first" in qualified immunity?

We then continue to Exhaustion (please review § 1257, along with the assigned works). How does the majority and concurring opinion diverge in Heck? What is the logic underlying Heck and the Heck bar?

We then turn to Res Judiata; look at this recent decision for a sense of how preclusion principles apply?

Finally, please meet with your opposing counsel and your co-Justice to decide who will argue which side and who will serve as Chief. I will gather this information next week.