Friday, May 12, 2017

Arguments Available

Excellent job today. I hope you all found it more fun than sitting for a final exam.

To watch the videos, go to:
   • Login w/ your  FIU username/password
   • On left side, click on "Media" for dropdown menu.
   • Scroll down and click on "Wasserman"
   • Click on "Civil Rights Oral Arguments 2017"
   • Enjoy

Thank you all for a great semester. Have a wonderful summer. See everyone in fall.

Monday, April 24, 2017

Final Class

Monday audio.

Oral arguments begin at 9:30 on Friday, May 12. Please follow the requirements contained in the Standing Order. See everyone then.

Wednesday, April 19, 2017

For Monday

Wednesday audio. Opinions due at the beginning of class (on time) on Monday.

We turn to Attorney's Fees, the last aspect of remedies. What are the purposes of attorney's fees and what are the benefits and drawbacks to them as a remedial mechanism? How do fees tie into the private attorney general concept? Parse out the elements of § 1988(b) and when and how fees will be available.

Monday, April 17, 2017

For Wednesday

Needless to say, having less than half the class show up is not ok (two people had notified me of missing). I expect to see 13 people in the seats on-time on Wednesday and next Monday or I expect to hear from you in advance.

Abstention Commentaries are due on Wednesday.

We continue with Equitable Relief. Review§ 2284(b) for the process of three-judge courts. What is the purpose of structural-reform litigation? What is the appropriate scope (as to plaintiff and defendant of an injunction under FRCP 65 and how does that jibe with the recent move of courts to issue "nationwide injunctions"? What is the purpose of FRCP 60 and how does it work with long-term structural-reform injunctions and consent decrees? Be ready to discuss § 14141.

Then move to Attorneys' Fees. How do fees support the private attorney general? How do fees provide the compensation and deterrence arguably missing, given the limits on compensatory damages? This will take us through the final class next Monday.

Wednesday, April 12, 2017

For Monday

Wednesday audio.

We are done with Abstention. Review the final Puzzles and Moser for yourselves, but we will move on to Remedies on Monday. Abstention Commentaries due next Wednesday.

Panel II is up for Remedies. Prepare Introduction, Damages, and Equitable Relief. Review what we have covered about equitable relief, then combine it with the more-detailed explanation. Think about the different types of remedies and how we can concpetualize them. What are the advantages and disadvantages of pursuing different types of remedies.

Monday, April 10, 2017

Procedure Commentaries

Here and here.

Oral Arguments

The Court's Standing Order on oral arguments.

The Argument Schedule for Friday, May 12.

Did United act under color?

For Wednesday

Monday audio.

We continue with Younger. What effect might an injunction in the federal cases brought by Steffel or Doran have on the pending state proceedings and why was that effect not sufficient to trigger "Our Federalism" concerns? How is Miranda different? When else will an injunction not trigger Younger, outside of the four exceptions?

We then turn to Rooker-Feldman, which is alternately treated as abstention and as a limit on § 1331. What is the rationale for RF? In addition to the problems presented, consider whether RF should bar this lawsuit challenging a "gag order" issued by a state trial-court judge.

Then do the Abstention Review, looking at Puzzle § 6.17 and the complaint in Marie v. Moser.

Just in case, prepare Remedies: Introduction; we may get to some basic principles at the end. That means Panel II should be ready to go.

Friday, April 7, 2017

Constitutional challenge to nuisance ordinance

The ACLU has filed a lawsuit challenging a nuisance ordinance in Maplewood, Missouri (outside St. Louis). A Maplewood ordinance empowers the city to evict residents and deny them the right to live in the municipality (residents need an occupancy permit) if they create a nuisance, which includes a certain number of police responses, including (expressly) for domestic violence. We looked at a challenge to similar ordinance in Norristown, PA in the Briggs complaint. That ordinance incentivized landlords to evict, thus triggering some DeShaney concerns and state-created-danger workarounds. Here, the city itself is doing the evicting, so the constitutional claim is more straight-forward.

Wednesday, April 5, 2017

For Monday

Wednesday audio. Apologies again for my lateness the last two days; it will not happen again.

We continue with Statutory Abstention and whether § 1983 satisfies the "expressly authorized" exception and why.

We then move to Younger Abstention, covering the first two sections (Basics and Expansion). Focus on Sprint, which was decided after Understanding was written. What is "Our Federalism"? What is the connection between Younger and § 2283? Why was the expansion of Younger beyond injunctions of criminal proceedings warranted or not?

I need all Commentaries to be brought in on Monday. I only have a record of ten people having submitted anything, which cannot be right at this point in the course. So please bring all Commentaries from all subjects.

Tuesday, April 4, 2017

DOJ, civil rights, and police reform

Last Friday, Attorney General Sessions issued a memorandum enumerating a series of principles regarding law enforcement and the relation between the federal government and local law enforcement; these include local control and responsibility for local law enforcement, promotion of public respect for police work, and the idea that the "misdeeds of individual bad actors" should not impugn law enforcement as a whole. The memo than calls for review of all DOJ activities to ensure compliance with those principles.

What does this mean? Likely that we will not see new § 14141 actions or investigations being pursued against local agencies. Likely that existing cases in which a consent decree (an injunction entered with agreement of the parties and the court) has not been approved, as in Chicago and Baltimore. It will be harder to undo ongoing consent decrees; because these reflect final judgments, the court must approve any changes.

This should be a nice reminder of the relationship between governmental and private enforcement of civil rights and the special role of private enforcement--the change of administration brings changes in enforcement priorities. Private enforcement (the "private attorney general") is designed to provide a constant in picking up the slack.

Monday, April 3, 2017

For Wednesday

Monday audio.

We continue with Pullman Abstention. Why can't the Supreme Court interpret state law to get around the federal issue? What is the controlling test for Pullman? What happens if the federal court abstains under Pullman? What is certification and how does it relate to Pullman? See also Justice Sotomayor's opinion in Expressions.

We then move to Statutory Abstention and the three statutes assigned. How does § 1983 relate to § 2283, under Mitchum? What is the underlying rationale for the two tax-injunction statutes?

We then move to Younger: Basics. What was going on in Younger and what is the scope of abstention under that doctrine? How does it tie into the version of § 1257 in effect in 1971? What is "Our Federalism"?

Pullman and Certification

From SCOTUS's decision last week in Expressions Hair Design, see Part II of Justice Sotomayor's opinion concurring in the judgment (joined by Justice Alito), in which she discusses the connections among Pullman and certification and why the lower court should have certified in this case.

Thursday, March 30, 2017

For Monday

Correction: We will have class on Monday, April 10, so no make-up necessary.

If you wrote a Commentary on Immunity or Municipal Liability, please bring it to class on Monday--I forgot to record the scores.

Remember: We will assign positions for oral arguments at the beginning of class.

We will continue with and complete Civil Rights Procedure, looking at statutes of limitations, accrual, and how it all comes together (along with Heck) in Wallace. How is accrual and how does the court determine the date? What were the competing views of accrual dates in Wallace and how did Heck influence that? Commentaries will be due on Monday, April 10 (when we will, indeed, have class).

We then turn to Abstention, with Panel III. Read Overview of Abstention and Equity and Pullman. What is the basic idea underlying abstention generally? What is the difference between abstention as abdication and abstention as postponement? Which is Pullman? How does Pullman abstention operate and why?

11th Amendment Commentaries

Here, here, and here.

Monday, March 27, 2017

For Wednesday

Monday audio. Sovereign Immunity Commentaries due on Wednesday.

We continue with Vehicles, looking at the differences between Habeas and § 1983 and, with Heck and its progeny, the territory that each covers. Read all the remaining sections and provisions in Procedure.

Wednesday, March 22, 2017

Municipal Liability Commentaries

Here, here, here, and here.

For Monday

Wednesday audio. Sovereign Immunity Commentaries due next Wednesday.
We start where we left off--what issues that we have discussed in this class are immediately reviewable and Cohen and why do they satisfy that 3-part test? When are "winner's" appeals permissible in the qualified immunity context and why? How do the reasons offered in Camreta link back to the discussion of merits first in Pearson?

Then read Procedure--Exhaustion and Res Judicata. Understand the process for habeas corpus and how it overlaps and differs from § 1983 and how that explains Heck and its progeny.

Tuesday, March 21, 2017

New § 1983 case

SCOTUS today decided Manuel v. City of Joliet, holding that an individual can challenge pre-trial detention through the Fourth Amendment, before or after a judicial finding of probable cause. This was rather than having to rely on substantive due process/outrageous executive misconduct/shocks-the-conscience. Although the focus is on the meaning of the substantive Fourth Amendment, there is some nice discussion of the role that common law plays in understanding § 1983.

There also is a brief discussion, mostly to give guidance to the lower court on remand, about when claims accrue. We will come back to this when we discuss Wallace v. Kato next week.