Effects of Lackey

On the perspective private attorneys and public-interest groups that live on § 1988 (and its counterparts). Note that those who focus on employment discrimination may be slightly better off because most of those cases seek retroactive relief (remedies for past, completed discrimination).

End of Semester

Final class audio.

Here is the Argument Schedule and the Standing Order on Procedure. 

Remedies papers due when you arrive on May 9. You may turn them into Ada in the Registrar (ruedaa@fiu.edu) before then if you wish.

See everyone on Friday, May 9.

For Final Class (Sniff!)

Tuesday audio--Class, make-up.

Here is NORRA, which passed the House and is on its way to the Senate.

Read Lackey v. Stinnie on the definition of prevailing party, especially as to preliminary injunctions. Prep the problems at the end of Ch. 9; consider the analysis before and after Lackey.

    • How do attorney's fees function as a remedy and what are the limits on their remedial force?

    • How does mootness interact with attorney's fees?

For Tuesday Double Session

Abstention Papers due at 9 a.m. Tuesday. No class Monday. Regular class Tuesday plus a 12:30-1:40 make-up. We are about a day ahead of where we usually are, which gives us a bit more time than in past years on Remedies.

Between the two classes, I expect to get through Damages (Part 9.A), Equitable Relief (Part 9.B), and start Attorney's Fees (Part 9.C). So you may as well read all of Chapter 9 for Tuesday.

Note two substitute/additional readings:

    • Fikre v. FBI, a challenge to being placed on the FBI's No-Fly List. Read this with the discussion of voluntary cessation on p.326. This one is short (13 pages).

    • Lackey v. Stinnie held (in February) that a party does not "prevail" for attorney's fees by obtaining a preliminary injunction and no other relief, where the case becomes moot. This resolves the circuit split discussed on p.344. We used this case for oral arguments 3 times in the past 5 years. This one is a bit longer (36 pages, because Justice Jackson writes a sharp dissent).

Habeas for alleged gang members

5-4 Court holds, staying an injunction. A challenge to removal from the U.S. (and detention preceding removal) must be via habeas, as it necessarily implies the invalidity of their confinement and removal. And habeas must be brought in the district of confinement (which for most is in Texas and Louisiana).

Pullman and Certification

From the Fifth Circuit.

Plaintiff, a state-court judge, challenged a state judicial-ethics canon he believed prohibited him from declining to perform same-sex marriages. The trial court abstain because the same question would be resolved a pending state-court litigation; the Fifth Circuit rejected abstention out of doubts the current litigation would resolve the issue, but nevertheless certified the open question to the Texas Supreme Court.

The Pullman analysis is bizarre, although it is common in some lower-courts: Abstaining in A's federal lawsuit in deference to pending state litigation on the same state-law issue involving B; the theory is that the decision on the state issue in B's case will resolve the state issue and thus help the federal court decide A's case. Pullman is supposed to be about avoiding a federal decision altogether by requiring A to pursue his own state-court litigation and come back only if the federal issue remains alive. Nevertheless, the decision to certify puts us in the same basic position--a state court will decide the scope of state law, which may obviate the constitutional challenge.

For Tuesday

I know this is hard, especially switching in the middle of things. But the group is small enough that I think we can run our usual class. Thank you for your work at this.

We will finish discussing the Priester Puzzle--what is the defendant's counter to the argument about the bias exception? Then prep Puzzle # 7 (Pettway).

We then move to Rooker-Feldman, including the assigned puzzles.

We then will begin Remedies; prep § 9.01 and Part A, on damages.

    • Consider the different categories of remedies: Equitable/Legal; Specific/Substitutionary; Prospective/Retroactive. What is the breakdown of each? Consider how to define the remedies available for an allegedly violative search-and-seizure.

    • What are the limits on  available damages? How do those limits undermine the purposes of § 1983?

COVID and State Action

From the Fifth Circuit, beginning on p.10: Hospital does not act under color in imposing COVID vaccination requirement on its employees. Some qualified immunity thrown in.

For Monday

Tuesday audio. We will finish Younger (hopefully) on Monday and Rooker on Tuesday. Remedies panel should plan to be on late in class on Tuesday.

We continue with Younger; be ready to work through the Puzzles.

    • What else falls within "Our Federalism?"

    • What happens procedurally after the federal court abstains? Will the rights-holder ever get a federal forum on the constitutional validity of the enforced law?

    • Does Younger apply if a plaintiff seeks only a declaratory judgment? 

    • What are the 3 steps in the Younger analysis?

    • What is parity and how does it explain Younger?