SCOTUS to resolve attorney fees and preliminary injunctions

Cert granted in Holcomb (now Lackey, since Holcomb left office) v. Stinnie. The cert briefing is fair game in prepping for arguments.

Abstention Papers

Here, here, here, and here.

Final Class

Audio. 

One final word on voluntary cessation: FBI v. Fikre, decided last month, offers a helpful explanation of the limits on voluntary cessation in mooting a case. Plaintiff sued the FBI for placing him on the no-fly; the FBI attempted to moot the case by removing him from the list.

I should have Abstention papers back by Wednesday; you can pick them up outside my office.

Remedies papers due at the start of arguments on May 10. See this post on everything you need to know about arguments. Please notify me of any food needs.

Thank you all for a great semester, especially getting to be outside. Congrats to those for whom this was the final class of law school.

More on universal injunctions

This is from Prof. Ed Hartnett (Seton Hall Law School), the author of the leading Supreme Court practitioner's guide, writing about scope of injunction:

There is an important and unresolved issue about the appropriateness of an injunction providing relief to nonparties. Such injunctions are sometimes called nationwide injunctions or universal injunctions, but the concern is not with their geographic scope, but their provision of relief for nonparties--creating, in effect, a class action without meeting the requirements of [FRCP] 23, while undermining both the limitations on non-mutual issue preclusion . . .  and the principle that district court decisions have no binding precedential effect. . . . Because decisions of the Supreme Court do have binding precedential effect on all courts, litigants rarely have an incentive to make the breadth of an injunction their primary contention on the merits before the Supreme Court; counsel might see stronger reasons to focus on this issue on a stay application.

For Monday (final class)

Tuesday audio. Abstention papers due at the beginning of class.

Prep the remainder of Ch.9, including the review puzzles. Have a look at the SCOTUS opinions in the Idaho case, which illustrates a lot of what we discussed about scope of injunction and what happens after the injunction. Recall Doran, in which the Court explicitly said the injunction as to two bars did not prohibit the city from prosecuting anyone else under the same ordinance, subject to the law of precedent and stare decisis.

Note a change in law in § 9.17[1]--the Fourth Circuit overruled circuit precedent and ceased to be the one circuit holding that a plaintiff does not prevail when he obtains a preliminary injunction, without more. That is one of our oral argument cases.

Injunctive Relief

On Tuesday we will discuss the procedure of injunctive relief in all its pieces--scope of injunction, stays and injunctions pending appeal, emergency motions and the "shadow docket."

This cases arises from a challenge to Idaho's ban on transgender care for teens; the district court entered a preliminary injunction prohibiting enforc (the scope is unclear); the Ninth Circuit declined to stay the injunction (allowing enforcement of the law); SCOTUS stayed the injunction to the extent it protected beyond the plaintiffs, but left it in effect as to the two or three named plaintiffs. Justice Gorsuch (joined by Thomas and Alito) explains why universal injunctions are bad. Justice Kavanaugh (joined by Barrett) tries to explain when the Court should become involved; Justices Jackson (joined by Sotomayor and Kagan) dissents.

Have a look before Tuesday's class and certainly after Tuesday's class.

For Tuesday

Monday audio. Abstention Papers due next Monday.

Consider the arguments for and against a finality requirement for RF, grounded in the text of § 1257 and § 1331 and in the underlying policy of RF.

For tomorrow, prep § 9.01 and Parts A and B (different from what I told you)--we will go in the order of the chapter of Damages and Prospective Relief.

    • What are the competing ways of dividing categories of remedies?

    • What monetary recovery is available and what are the limits on that? What is the problem with cases settling?

    • What is the process for seeking injunctive relief?

    • We will hit on a brief overview of standing and mootness; more on those in Fed Courts.

Recent cases and controversies (Updated)

1) From the Sixth Circuit: Considering whether the county (and the country treasurer) are arms of the state or the county.

2) You should have seen the stories about the student who attempted to give a protest speech during a dinner for graduating students at the private home of dean of Berkeley Law. Lots of discussion of whether the student enjoys First Amendment protection (she almost certainly does not). Note that this assumes the dean acted under color in hosting this party at his home -- did he?

3) Media Matters sued the Texas AG in the District of the District of Columbia, claiming a First Amendment violation from the state's investigative document demand, seeking information about MM's critical reporting about Twitter. No Younger absention (at least Paxton did not raise it), probably because the demand is not part of any sort of state proceeding. Paxton challenged personal jurisdiction and standing (which we will discuss as part of Remedies; the district court denied dismissal as to both. For our purposes, the case illustrates an important general point: Litigating and vindicating constitutional rights is not all about substantive constitutional law; much of your time will be spent with the procedural rules we cover in this class, in Fed Courts, and, as here, in Civ Pro.

Arguments

Standing Order on Procedure and Argument Schedule. Video of arguments from last semester after the jump.

Lunch will be provided. If you have dietary needs or restrictions (Kosher, Hallal, Vegan, Vegetarian, gluten-free, picky eater, etc.), please let me know well prior to May 10.

Also, you should collectively decide whether you want to do one final argument in which everyone is on the Court and I argue Respondent side in Kohn v. State Bar.

Prof. Mirow decided to have some fun

 

Procedure Papers

Here, here, and here.

For Monday

Tuesday audio.

We will finish the Younger Puzzles, then move to Rooker-Feldman and the Abstention Review puzzle (SKS).

    • What is the distinction between Younger and Rooker, which both seem to be about allowing state courts to adjucate federal issues.

    • What is the narrow definition of Rooker and how has it been expanded? How should it differ from Preclusion (review that portion of Chapter 7)?

I hope to get to Remedies at the end of class. The last panel should prep just Overview in § 9.01. We then will cover all of Chapter 9 in the final two classes. Note that Remedies papers will be due when at the beginning of arguments on May 10.

For Tuesday

Monday audio. Procedure papers due tomorrow. Confer w/ co-counsel and co-justice about roles prior to 9 am tomorrow.

Some clarifications from after class:

    1) States must establish certification processes; absent that state decision, certification is impossible. Many certification processes are discretionary--the state high court can decline to answer the certified question. So what happens if the state refuses to answer the question? The federal court can continue and work with its best understanding of the statute. Or it abstains under Pullman and the plaintiff takes the long way through the state system. Recall that certification and Pullman overlap in requiring an ambiguity--so if the law is ambiguous enough that the federal court believed certification appropriate (and it asked the state court to answer, only for it to refuse), the federal court probably must abstain under Pullman if the state court declines certification.

    2) Some confusion about Constantineau. Plaintiffs challenged the law on federal due process grounds; Wisconsin argued that the question of the law's validity on state due process was ambiguous. Had the Court accepted that, plaintiff would go through the state judiciary and obtain a decision as to the law's validity under state due process. If plaintiff wins because the law is invalid under the state constitution, the dispute is over--the law is invalid and cannot be applied against him. If plaintiff loses, he returns to federal court and the 14th Am issue is unavoidable; the law is valid as to state law and now the federal court must assess its validity under the federal constitution.

    3) Another reason certification is preferable to Pullman: If the state court imposes a limiting construction on state law, the plaintiff may still argue that even the narrowed law violates the federal constitution. The case may inevitably return to federal court. So certification--right to the highest court, right back to the federal court--is preferable.

    4) § 7421 does not have a "plain, speedy, and efficient remedy" element. But the federal courts all know about the Tax Court and accept that as an alternative, so it's unnecessary. Federal courts are more skeptical of state tax procedures, as seen in the Sixth Circuit's decision in Howard.

We will work the two Pullman Puzzles, then move to Younger, which is the most prominent and common abstention doctrine in § 1983 litigation. Our discussion will hit the underlying policies, then we will use the Puzzles to work through the multi-part steps of the analysis. Be able to work through all three steps of the Younger analysis for each puzzle, using the major SCOTUS cases (the ones listed on the Syllabus). Be ready to discuss:

    • What the Court means by "Our Federalism."

    • How Younger interacts with § 2283 as interpreted in Mitchum one year after Younger.

    • Whether this is abdication or postponement and how a federal forum comes into play. Note the pre- and post-1988 versions of § 1257.

    • How parity explains Younger.

Entity Liability Papers

Here, here, here, and here.

For Monday

Tuesday audio. Procedure papers due start of class next Tuesday. I will collect information on argument roles at the beginning of class Monday; please confer with opposing counsel and co-justice before you enter class that day.

Here is the en banc Ninth Circuit opinion in Yoshikawa v. Seguirant rejecting the stand-alone § 1981(c) cause of action and holding that plaintiffs must bring § 1981 violations as § 1983 and laws claims. The court agrees on that result; there is disagreement as to what happens next.

We continue with Statutory Abstention, then move to Pullman. How does history and purpose show § 1983 to be an "expressly authorized" exception, given the general language of "suit in equity?" Why have the tax injunction acts (§§ 1341 and 7421) and what do they require and exclude? What are the two circumstances in which a federal court might abstain under Pullman? What is the connection between Pullman and certification?

How far does prosecutorial immunity go?

This case may be designed to find out.

The DA and ADA for Starr County (TX) secured an indictment of the plaintiff for murder following a medication abortion. Plaintiff was arrested and held for three days until the DA dismissed the charges. The State Bar also sanctioned the DA.

The plaintiff recognizes that prosecutorial immunity presents a problem and tries to plead around it. The complaint focuses on the investigation prior to grand-jury presentment, which DA officials carried out without working with the local sheriff or police department. It does include allegations about the DA's office lying to the grand jury, which would be immune. But it tries to frame the claim around an exception to the "independent intermediary" doctrine. Under that doctrine, the actions of an immune independent intermediary (a judge in issuing a warrant, a grand jury in indicting, or a prosecutor in pursuing either) may break the causal chain between plaintiff's injuries and the constitutionally defective actions of police officers during an investigation. For example, a prosecutor's decision to pursue a prosecution may break the causal chain between the injury (wrongful conviction) and an initial arrest without probable cause. But there are exceptions to that, where the intermediary is not independent of the defendant. Plaintiff appears to argue that independent intermediary does not apply when the same person acts as investigator and prosecutor, as there can be no "independence."

There also is a claim against the County, based on the active (although not lead) involvement of the DA. This claims tees-up the competing strands of entity liability we discussed last week--is the DA the policymaker; was he sufficiently involved in the investigation and prosecution or did the ADA carry the ball; and is the DA Office county or state when performing the function of investigating and prosecuting state law. This is not a close question--the Fifth Circuit long ago held that, as a matter of Texas law, a county prosecutor acts as an arm of the state in enforcing state penal law.

Finally, note the plaintiff's strategic choices. Immunity is, unquestionably, an affirmative defense, which the plaintiff need not negate in her complaint. So does it make sense to plead it? Or is the plaintiff better off standing on her complaint, waiting for the 12(b)(6), and responding to that.

For Tuesday

Monday audio. Entity Liability papers due at the beginning of class.

We will finish the Heck Puzzles and the rest of Chapter 7. We start with Dominguez--§ 2254 is off the table because Dominguez no longer is in custody pursuant to a state-court judgment, although he has not been released. What vehicles does he have to challenge his continued detention in federal court? What are the two broad issues for the plaintiff to raise in Poventud?

Also, please note a couple of things: Habeas is incredibly detailed and complicated; we barely scratched the surface, other than to know the basics so you can distinguish it from § 1983. Entire books and classes can be taught on it. One way of thinking about what is and is not Heck-barred is to think about retroactive v. prospective remedies; we see this in Edwards v. Balisok--Heck barred the claim for damages for past withdrawal of good-time credits without due process, but not the claim for an injunction requiring future proceedings considering good-time credits to comport with due process.

We then move to Abstention, so that panel should be ready to go. For tomorrow, prep § 8.01 and Part B; we will go in a slightly different order from the book. What does the Anti-Injunction Act do and why does § 1983 qualify for the "expressly authorized" exception?

Evangelizing cops, qualified immunity, and appealability

Every case always comes up again. This one comes from the Sixth Circuit, where a police officer discussed religion and baptized a woman following an arrest for marijuana possession. The district court denied summary judgment; the officer appealed. The Sixth Circuit lacked jurisdiction because the district court identified factual disputes and the officer did not conede the plaintiff's version of facts, although that concession might have been sufficient to create appellate jurisdiction.

For Monday

Tuesday audio. Entity Liability papers due Tuesday.

We continue with Procedure; prep the rest of Chapter 7, beginning with the § 7.05 puzzles. Understand the basics of habeas corpus and how Heck strikes the balance between habeas and § 1983. Why insist on lines between habeas and § 1983? What role does SCOTUS review play in challenges to state convictions--how do you know when a case reaches SCOTUS on habeas or direct review?  What is the statute of limitations on a § 1981 claim against a municipality?

Abstention panel should be ready to go on Tuesday.

For Tuesday

Monday audio.

We will finish with the Noah C. puzzle on Entity Liability. Having found the Board as the policymaker, what do we next have to figure out for the damages and injunction claims. How is the injunction claim affected by whether the Principal is the policymaker and whether the Board signed off on the suspension? See Humphrey in the reading. Entity Liability papers will be due next Tuesday.

We move to Civil Rights Procedure, covering the first two sections (Chapter 7, Parts A and B); many jurisdictional statutes to review, so be ready to discuss and explain the precise language of those provisions and how they operate. Note that the Title VII provisions (42 U.S.C. § 2000e) are in App. C.

    • Why is immunity, especially qualified immunity, immediately reviewable under the collateral order doctrine?

    • How do 3-judge courts and declaratory judgments respond to the concerns over EpY? Why have 3-judge courts for the three current classes of cases in the modern statute?

    • Be ready to discuss the basics of habeas corpus. We then will get into Heck next week.

For Monday

Tuesday audio. I hope to finish or just-about finish State Sovereign Immunity on Monday; prep and review the rest of Chapter 6 and all puzzles.

    • In what way(s) is EpY a legal fiction? What is the argument it is not a legal fiction at all? What are the possible meanings of the phrase "the king can do no wrong?"

    • How does the inquiry into who is a policymaker interact with sovereign immunity, abrogation, and § 1983?

Immunity Papers

Here, here, here, here, and here.

For Tuesday

Monday audio. FIU will host a panel on judicial clerkships at lunchtime tomorrow (Tuesday), featuring Judges Jordan and Rosenbaum of the 11th Circuit; please plan to attend if you have any remote interest in clerking.

Prep the remainder of Chapter 6. We will get through much of it tomorrow, with some left for next Monday.

    • What is the connection between congruence and proportionality and sovereign immunity?

    • What does C&P allow Congress to do under § 5? Given the laws that have been valid and not valid under § 5, what explains C&P?

     • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

    • What is the cause of action in Ex parte Young and how does it affect sovereign immunity? Why is EpY a "fiction" and why is it not a fiction? How does EpY connect with § 1983? 

Finally, circling back to the Midwest Bank Puzzle and what you should be looking for: Have we discussed any doctrine under which a plaintiff can hold government liable for harm caused by a private person (note: the state-action cases are about holding the purportedly private actor liable)? How might that apply to the facts of Midwest?

Social Media Cases Decided

Lindtke (claim against city manager) and O'Connor-Raitliff (school-board members). Lindtke is the main case, setting (unanimously) a standard for when officials act under color. The Court vacated and remanded O'Connor for reconsideration in light of Lindtke.

Spot the problems with the constitutional claims

In Fakhreddine v. University of Pennsylvania. Plaintiffs are pro-Palestine Penn faculty members seeking to enjoin the university from complying with information requests (not, yet, subpoenas) from the House Committee on Education and the Workforce (same committee that held the crazy December hearing with the presidents of Harvard, MIT, and Penn).

Have at it.

For Monday

Tuesday audio. Immunity Papers due at the beginning of class Monday.

We will finish the Muni puzzles, then move to Part B and State Liability.

   • What is sovereignty and what is sovereign immunity? Who is and is not sovereign?

    • What are the three competing theories of the meaning of the 11th Amendment? How would each theory handle the following claims:

        • South Carolina Citizen v. Georgia on a federal claim

        • South Carolina Citizen v. Georgia on a state claim

        • Louisiana Citizen v. Louisiana on a federal claim

        • Louisiana Citizen v. Louisiana on a state claim

    • What is abrogation and when is it permitted or not permitted and under what powers? How does abrogation different from "waiver by plan of the convention?

    • Consider whether the following claims can proceed under the Americans With Disabilities Act:

        • Attorney working at Greenberg Traurig

        • Attorney working for the Miami-Dade County Attorney

        • Attorney working for the Office of the Florida Attorney General

    • Can states be sued under § 1983?

For Tuesday

Monday audio. Hopefully we get one more day outside tomorrow. Immunity papers due next Monday.

We continue with Municipal Liability:

    • We left off on what, before we get to anything, on what is necessary to state a claim against a municipality claim.

    • What is "policy" and "policymaker?" What are the four ways a plaintiff can establish municipal liability? How should we understand "Failure to ___" as a theory of liability?

    • How does qualified immunity affect municipal liability?

    • What is the argument that respondeat superior liability is consistent with the text and history of the 1871 Act?

    • How do municipal interests diverge from individual interests in litigation?

    • Be creative in thinking about Puzzle # 3. The case requires you to circle back to prior material in the course.

I hope to get a bit into State Liability tomorrow; just prep §§ 6.09 and 6.10, which will give the basic overview of sovereign immunity and the 11th Amendment.

Interesting Immunity Cases

After the jump, two interesting immunity decisions from the Ninth Circuit. When you encourage your friends to take this class next spring, tell them to expect to see this case in arguments.

Medicaid and § 1983

The Fourth Circuit held, for the third time, that Medicaid's "free-choice-of-provider" provision can be enforced through a § 1983 "and laws" action. That provision guarantees Medicaid patients the right to choose their health-care provider; the lawsuit challenges South Carolina's attempt to bar Planned Parenthood from receiving Medicaid funds (this is an ongoing issue in many states). The court had previously reached this conclusion, but the judgment was vacated for reconsideration in light of Talevski. The court reads Talevski as follows:

We agree that enforceable rights under § 1983 are dependent on congressional authorization, which under no circumstances may be casually implied. While Talevski offered an illuminating analysis of the issue before us and a useful new example of provisions enforceable via § 1983, we do not read it as toppling the existing doctrinal regime. And even if Talevski could be read as embracing a wholly new test, we hold that the free-choice-of-provider provision passes it

For Tuesday

Monday audio.

We will finish QI tomorrow; papers will be due next Tuesday. What are the benefits and drawbacks to flipping the QI presumption--no immunity unless the right is clearly established? We then will work through the QI and Immunity Review Puzzles.

We then turn to Entity Liability, beginning with § 6.01 and Municipal Liability. What are the arguments for and against municipal liability, given the purposes of § 1983 and the problems of individual immunity? What is the textual and policy basis for municipal liability and what are the limitations on that liability?

State-created danger and immunity

From the First Circuit in Johnson v. City of Biddeford. This shows how courts approach the two prongs of immunity and the connection between them. And it again shows courts dealing with the scope of state-created danger.

This was an oral argument case for class a few years ago when it was in the court of appeals the first time, on the existence and scope of SCD.

Sometimes the US does prosecute § 242

From the Tenth Circuit, affirming the sentence on an 8th Amendment violation. Pretty egregious and straight-forward facts--a corrections officer placed two African American inmates in a cell block dominated by members of the Aryan Brotherhood, then ordered the cell doors left open.

For our return from break

Tuesday audio. Hopefully we will continue to have outdoor weather.

We continue with Qualified Immunity and the § 5.21 all-immunity review puzzle. My best guess is this will take both Monday and Tuesday when we return. What purposes and what problems does the clearly established requirement present? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?

Enjoy your break.

You can't write this stuff

An actual coming § 1983 action.

But now let's try to fit it back into today's conversation. Imagine Ms. Gassman (Sydney, did someone change their name???) works for the DA. 

So two possibilities arising from the particular line defendant and her relationship with the DA. When does immunity attach?

    1) Ms. Gassman brings this same suit against this DA.

    2) The DA assigns Ms. Gassman to prosecute and obtain a conviction against a Palestinian defendant. The defendant learns of the photo in her office and sues the DA for damages for discrimination in appointing Ms. Gassman to prosecute, believing the choice motivated by discrimination.

For Tuesday

Monday audio. Back outside tomorrow, as I expect another nice day.

We will finish the Prosecutorial Immunity Puzzles. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.

We then move to Qualified Immunity, which is almost certainly the highest-profile doctrine--and the one most criticized across the political spectrum. How did the doctrine evolve and why? What are the targets of criticism?

Also, see the Sixth Circuit case I mentioned, holding that parole board members enjoy quasi-judicial immunity. The court includes a nice discussion of we talked about in class today--how to understand immunity for something as seemingly routine as scheduling.

Bivens Papers

 Folks went big with the titles. Here, here, here, and here.

For Moday

Tuesday audio.

We will continue with Judicial Process Immunity, so prep everything in Part B of Chapter 5. How do the "trappings" of judicial process cut in Gibson? How does Stump v. Sparkman affect resolution of Gibson? Why is prosecutorial immunity more controversial than, for example, judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity?

We will begin Qualified Immunity on Tuesday.

For Tuesday

Monday audio. Bivens papers due at the beginning of class. We will continue to be outside if the weather cooperates, at least for a few more weeks.

We continue with the Puzzles for Legislative Immunity. We then more to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial.

RPI Papers

Here, here, here, and here.

How bad has Bivens gotten

Pretty bad, says the Tenth Circuit, in recognizing that a Bivens claim is not available because the US Marshal Service is different from the ATF predecessor with a different statutory mission and internal grievances suffice. The court cites Byrd v. Lamb in discussing (but not relying on) the meaningfulness of the events happening inside or outside the plaintiff's home.

The opinion, written by a GWB appointee, takes pains to highlight (including through choice of language) how ridiculous this seems but how hamstrung they are by the Court's recent decisions.

Keep an eye for this in illustrating the back-and-forth between SCOTUS and lower courts. SCOTUS often will do something, including narrowing some area of law, that the lower courts run with to narrow even further, too much for SCOTUS's taste. SCOTUS will take a case to come out the other way to rebalance things a bit. We can understand recent qualified immunity decisions (stay tuned in two weeks) this way. We can understand Talevski (one § 1983 and laws claims) this way. So do not be surprised if the Court takes a case similar to this one as an opportunity to signal to lower courts not to go too far afield. Or to finally kill Bivens once and for all.

Presidential Immunity

The D.C. Circuit held that Donald Trump does not enjoy absolute presidential immunity from prosecution for his conduct following the 2020 election.

Read for Monday, as we will have a brief discussion of how immunities work in criminal as opposed to civil cases. And we may come back  to this when we reach Qualified Immunity. Note also there is an issue of appellate jurisdiction familiar to those of you who took Fed Courts.

For Monday

Tuesday audio. Bivens Reax Papers due next Tuesday.

We continue with Immunity, starting with Legislative Immunity.

    • What does it mean to say immunity is "absolute?"

    • For each immunity, note the key questions--who is immune, from what are they immune, and what functions are immune?

Other models of constitutional liability

This essay reviews and discusses an article comparing Canada's approach to post-enforcement constitutional damages with the mess in the U.S., especially as to Bivens. The author of the essay is a leading Fed Courts/Civil Rights scholar and one of the key critics of Bivens.

For Tuesday

Monday audio. RPI Papers due tomorrow. Outside if the rain holds off.

We will continue with and should finish Bivens, so be ready to work through the three Puzzles.

    • What would congressional action look like?

    • What is the "double-counting" objection to the Court's two-step approach?

    • What is the argument that Bivens is dead rhetorically if not legally? And what is the argument for killing it altogether (Amir's question, off the Gorsuch dissent in Egbert)?

    • Go back to the Doe v. Google puzzle in Chapter 2 (p. 50). That claim was based on action by federal officials. How does the case get resolved if plaintiffs seek damages as opposed to an injunction?

I think we are only going to get through Overview for Immunity, so don't move on to Legislative Immunity.

    • What are the purposes and policies behind immunity of all kinds?

    • What are the purposes of § 1983/Bivens litigation, especially for damages?

    • What makes immunity "absolute," as opposed to qualified?

Under Color Papers

Here, here, here, here, and here.

The Controversy of State-Created Danger

Recent case from the Ninth Circuit. The majority held that a police officer violates SDP on a state-created danger theory by disclosing the confidential police report and other information to the abuser. A concurrence in the judgment rejects SCD as a judge-made "Frankenstein's monster" without support in the Fourteenth Amendment, history, or precedent. It is not impossible that the Court reconsiders this doctrine in the not-so-distant future.

The plaintiff lost the case on qualified immunity (which is why the concurrence was not a dissent); we will get to that in a few weeks. Keep this case in your mind and in your notes when we reach that topic; the majority and concurrence analysis illustrate important issues in the doctrine.

Finally, note the particular facts--the abuser communicating with the defendant officer was a fellow officer. This comes up in a fair number of (usually unsuccessful) SCD claims, often around domestic violence--an officer causes harm not under color and the plaintiff argues that the kid gloves with which colleagues treat that officer increase the danger to the victim.

For Monday

Tuesday audio. RPI papers due at the beginning of class next Tuesday. Please take the time to work the puzzles before class--things go a lot more smoothly that way.

A quick note on Watts and the First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that he engaged in protected speech--making racist comments to players while working for the state as an athletic official probably does not enjoy constitutional protection. And, as I said, it is hard to disentangle those undefined comments from his bad calls. But yes, the argument that "the coach ordered two students to assault me because of my speech" is a fair framing for a potential 1st Amendment claim, subject to the court's (likely) finding the speech unprotected. And that forces you back into SDP.

We will begin Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert. Prep the puzzles with care--the likely answer ("no Bivens") is obvious, but the question becomes why. Without Bivens, how can the federal officials or the federal government be held to account for constitutional violations?

For Tuesday

Monday audio (may not be great, considering where we were). Under Color Papers due at the beginning of class. We will be back outside, but in the far corner of the courtyard (so more protection from the sun).

We continue--and hopefully finish--RPI. Prep the three puzzles; note where the events take place and how that might affect the available arguments. In thinking about Watts, refer back to Bantam Books in Chapter 2 and the VDARE puzzle. Why, under the Barnstable analysis, can plaintiffs pursue § 1983 constitutional claims in situations covered by Title IX and Title VII? Why describe RFRA and RLUIPA as "substitute" statutes?

I hope to then turn to Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert.

For Monday

Tuesday audio. Under Color Reax papers due at the beginning of class Tuesday. Reminder that you must write on under color and the issues discussed in Chapter 2 (you don't know enough to write about stuff later in the class); Puzzles that we did not cover in class are fair game; argument cases that you are not otherwise assigned are fair game (although not applicable here). And there is a lot of stuff on this topic, so it should be very easy to find recent case(s) to write about--if you go down that path, spend most of your time on the law and application.

Move to Enforcing the Constitution, Part A of Chapter 3. We will not be getting deep into constitutional doctrine, only getting a sense of the basic rights enforceable.

    • How does the Supremacy Clause connect to § 1983?

    • How does the evolution of constitutional law explain the increase in § 1983 activity in modern times?

    • What does "due process" entail? What multiple pieces does "substantive due process" entail?

Symposium in Memory of Prof. Megan Fairlie

FIU and FIU Law Review will sponsor Perspectives on the International Criminal Court and International Criminal Law and Procedure: A Symposium in Memory of Megan Fairlie on Friday, February 2 in RDB 1000.

Some of you probably had Prof. Fairlie in class. The program is designed to honor her scholarly work and her life as a member of the College of Law faculty. I hope you will attend all or part of the program.

For Tuesday

Monday audio.

We will finish Chapter 2 and the Hate Speech Act Puzzle. Under Color reaction papers will then be due next Tuesday, January 29. What are the postures in which the property owner could assert his First Amendment argument that the act is constitutionally invalid?

We then move to Chapter 3 and Panel II. Read § 3.01 and Part B of Chapter 3; take the time to prep the statutory provisions assigned.

What is the difference between a right, a right of action, and a jurisdictional grant? What express rights of action has Congress provided for civil rights statutes? Absent an express right of action, where can parties and courts look for a right of action? How does the Spending Clause operate? How does the analyses for implied right, Ex parte Young, and § 1983 overlap and how do they diverge? Absent private civil litigation (which requires a right of action), how do civil rights statutes get enforced?

Animals can't take pictures, can they act under color?

That is another way of thinking about Whitworth v. Kling (8th Cir.), arising from a K-9 (named Dutch) biting a guest in his off-duty handler's house. The court rejected a Fourth Amendment unreasonable-seizure claim against the handler, because the bite was unintentional and not part of the officer's official efforts. The court treated the K-9 as the officer's weapon used to engage in force--in this case, the sort of unintentional force that does not violate the Fourth Amendment.

But note two paths not taken. One is to say that Dutch did not act under color because he did not pretend to perform his official duties----he was playing fetch in his yard off-duty, got distracted, and ignored commands to disengage--or use his position to enable his conduct. Of course, the text of § 1983 precludes that approach--"[e]very person" under color

Another is that the officer--off-duty, playing fetch in the yard, and not attempting or appearing to perform any job-adjacent acts through Dutch--did not act under color. Not sure why the court ignored that possibility or used the approach it did.

Argument Cases (Corrected Link)

Here. Meet at some point with your opposing counsel to decide which side to represent and with co-justice to decide who will be chief. Cameron gets to pick which side to argue.

Please note that these cases are fair game for reaction papers on the cases you are not assigned to argue or judge.

For Monday

Tuesday audio. Please email me before the end of the day if you do have a Friday exam and/or if you wish to judge a second case. I will post the list tomorrow.

Review the reader and puzzles for the rest of Chapter 2. This will take us through Monday and much of Tuesday. Panel # 2 (on Chapter 3) likely will begin on Tuesday.

Panels (Revised and Updated)

Updated: It looks like we have 11 in the class; I moved a couple people on later panels around, so please make sure you find your proper assignments.

As indicated on the Syllabus and Grading Information, everyone is assigned to three (3) panels and to write reaction papers on each of their panel topics. Panels are assigned at random--some people are on consecutive panels while others have lengthy breaks between them. Each panel will have 4-5 people, depending on final enrollment. Each panel represents all or part of approximately 2-4 classes. The four longer topics have five people. More people will be added to each panel if enrollment increases.

Panelists begin on the second day of class, Tuesday, January 9.

For Tuesday, January 16 (updated)

Tuesday audio. Please let me know if you have an exam on Friday, May 10. It appears we will have 11 in the class, meaning an odd number of positions for arguments. Please let me know if you are willing to judge a second argument.

We continue with Under Color; review the remaining puzzles from § 2.02, then complete the rest of Chapter 2. I expect to spend another 2-3 days on this subject.

 Please note something that came up after class: We focused on one element of a § 1983 claim or § 242 charge--did the defendant act under color of law; it was deliberately narrow. Our discussion today said nothing about whether the defendants violated the Constitution, whether they knew they violated the Constitution, and whether they have defenses. That all comes later, as additional elements for the plaintiff/government to establish or as defenses to be raised and litigated.

No class Monday for Martin Luther King, Jr. Day.

For Tuesday

Monday audio. Panel # 1 (Sunny, Thomas, Alexa, Aric, Kaitlyn) is on for tomorrow.

Review the Syllabus, Assessments, and Panels; I will take questions at the beginning of class. In particular: Arguments take place the day after the final day of exams, which this semester is Friday, May 10. So: If no one has an exam on Friday, we can do arguments that day. Otherwise, we can do them on Monday, May 13 (as scheduled) or we can do them over that weekend. Be ready to discuss options.

We did not get to this today, but: Consider how judicial departmentalism explains the Southern Manifesto (the statement of Southern House members opposing Brown) and the desegregation litigation in Little Rock.

For tomorrow, prep §§ 2.01 and 2.02.

    • What do § 242 and § 1983 do? How are they similar and how are they different?

    • What is the core or obvious meaning of "under color?" How did the Court expand that core in Classic, Screws, and Monroe?

Litigating African American rights in Jim Crow

The common story of federal civil rights litigation (told in the cases and in our book) holds that we needed federal litigation of federal rights to overcome systemic racism in Reconstruction and Jim Crow state courts and the inability of African American victims to obtain legal relief, especially against white violence. While that story is generally true, research from a Harvard historian suggests that African American plaintiffs achieved some litigation success in state courts, particularly in pursuing tort claims against railroads, insurers, and other private entities. A worthwhile counter-narrative, demonstrating that law is complicated.