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?

For Tuesday

Monday audio. Procedure papers due tomorrow.

We continue with the remaining puzzles for statutory abstention, beginning with the plaintiff's argument as to the opioid stewardship payment in Accessible Medicine.

Then prep Pullman (Part 8.A) and Younger (Part 8.C)--we will do all of Pullman and should get pretty far into Younger.

    • What are the two circumstances in which a federal court might abstain under Pullman and the limits of each?

    • What is the connection between Pullman and certification? Given a choice, when should a court abstain under Pullman and when should it certify?

   • 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 and how that affects this question.

        • How parity explains Younger.

 

Habeas Exclusivity

This post by Lee Kovarsky (University of Texas and the author of the leading Habeas casebook) explains the habeas-exclusivity issue in play in the Venezuelan rendition cases and why habeas is not the exclusive remedy.

For Monday

Tuesday audio. Much better today; thank you. Procedure papers due next Tuesday.

One question for the Procedure panel at the start of class: Consider the procedural rules we encountered in Chapter 7--state judgments have preclusive effect on § 1983 actions; Heck (especially to the extent it applies even when the person is not in custody); Habeas limits, particularly that a person cannot bring a 4th Amendment claim. What is the common theme among them? How does Patsy depart from them?

We turn to Abstention. Prep Introduction, § 8.01 and Statutory Abstention, Part 8.B. What does the Anti-Injunction Act do and why does § 1983 qualify for the "expressly authorized" exception? Why limit injunctions barring collection of taxes in § 7421 and § 1341? What are the parameters of each statute?

For Tuesday

Prep the remainder of Chapter 7. Heck is really confusing stuff. Please do the reading carefully and take the time to prep and take notes on the problems so you are ready to talk about them.

Be ready to discuss the following specific issues:

    • What principles underlie and explain the limitations on Habeas?

    • Why is it necessary to separate § 2254 and § 1983 and leave room for each?

    • When does a § 1983 judgment "necessarily imply" the invalidity of the conviction or sentence? And what does it mean to say the conviction or sentence is invalid?

    • When does the § 1983 judgment necessarily imply invalidity? What sorts of claims? 

    • What do limitations on habeas, preclusion rules, and Heck have in common in terms of the need for a federal forum and trust of state courts? How does Patsy differ?

Suing states and courts and others

This one brings together a lot of things we have discussed or will discuss. Plaintiffs sued the head of the state judicial council (the body that trains state-court judges) seeking to alter how it trains judges on matters of parental rights (they argue that state courts are too quick to strip parents of their rights, in violation of due process, which is probably true).

Point One of the opinion shows the move among policymakers, Monell, and the 11th Amendment. The head of the council (sued in her official capacity) is a policymaker, but the council is an arm of the state, thus not a § 1983 person (it gets that right).

Point Two shows the limits of EpY, namely that it runs against the executive rather than the court. Thus an injunction altering judicial training is, in effect, an injunction requiring judges to decide cases a certain way, which exceeds the scope of the EpY cause of action. That last point is interesting and perhaps contestable--would plaintiffs gain meaningful relief from an injunction altering training even if it does not affect any state court action? Consider this when we turn to remedies and standing in Chapter 9.

State-Created Danger

The Sixth Circuit rejects state-created danger liability against school officials arising from the school shooting in Oxford, MI in 2021. This is the case in which the shooter's parents were convicted of manslaughter for providing the 15-year-old with the weapon as a Christmas present. It shows both how hard it is to show state action "worsened" the situation and that the officials' conduct "shocks the conscience."

Damages, Injunctions, and Constitutional Attacks

You should watch current events around the various Trump Administration's actions and the challenges to those actions with this class and what we have learned in mind. The lawyers pursuing these cases are putting into practice what we do here (and in Fed Courts). And one thing it shows is how remedial limitations affect constitutional litigation and courts' ability to address constitutional problems.

Plaintiffs seek declaratory and injunctive relief. We will get deeper into remedies in the last chapter, but § 7.01[4] offers a brief overview of the process for seeking equitable relief in the trial court and we mentioned that any decision on the injunction is immediately appealable under § 1292(a)(1). But consider what happens while litigation is ongoing. Some enforcement takes place, even if it might prove invalid. The Administration's actions have a chilling effect on others, who do not engage in some conduct (e.g., coming to or remaining in the United States), not knowing how that litigation will turn out. And there is harm in waiting--consider federal employees seeking to avoid termination or to get their jobs back. And the Administration gains political points from being seen to take aggressive action, even if that action is ultimately declared unlawful--he can tell the public that it tried but squishy liberals such as John Roberts stopped him. In other words, the government has an incentive to continue arguably unlawful activity; the risk of litigation defeat and injunction may not stop it from engaging in in the moment and while it can get away with it, daring the court to stop it.

In theory, damages fill this gap, by imposing liability and a remedy for past misconduct. Government cannot act unlawfully until told to stop, because a person can recover damages for that past unlawful conduct. Thus consider why the (more-or-less) death of Bivens and other mechanisms for seeking damages from the federal government and federal officials. It is not damages-or-nothing for a Venezuelan non-gang-member, a person born in the US to parents on student Visas, or to federal employees. But injunctive relief leaves them more vulnerable than if they could pursue a more complete array of remedies. And we can say the same about expansive qualified immunity--even with Bivens, those damages might not be available.

For Monday

Audio for Monday and Tuesday. Entity Liability papers due Tuesday.

We continue with Procedure. How do 3-judge courts address criticisms of EpY? How do 3-judge courts operate? What was the other (delayed) response to EpY and how did it address those criticisms? Prep the § 7.05 Puzzles.

Then move to Part 7.B, on Habeas and Heck. 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?

For Tuesday

Unable to load audio at the moment; will do so when the site is working again. I think we can be outside one last time tomorrow.

We will hopefully finish Entity Liability.

    • How does the historic suits against the King's ministers explain EpY? What is an anti-suit injunction and how does it explain EpY?

    • Once you identify a policymaker who engages in wrongdoing, what is the next step in determining whether the entity can be sued and held liable?

    • Prep all the problems within Chapter 6. How does Humphrey affect injunctive relief in Noah C?

We move to Civil Rights Procedure late in the class, covering intro and Part A; 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?

More qualified immunity

From the Seventh Circuit, in a fairly high profile lawsuit by a law school professor suspended because students objected to how he taught and dealt with some race-related issues. Two interesting bits related to QI.

First is on pp. 8-10. For a long time, public-employee speech was controlled by Connick/Pickering, which required a balancing of the government's interest against the employee's right to speak on public matters. Then Garcetti held that speech employees make as part of their job gets no protection at all. But Garcetti dropped a footnote (and Justice Souter a concurring opinion) suggesting that academic speech is different and that there may be a professor exception; it expressly left the issue unresolved. Some circuits have held as much--and the 7th Circuit does here. But the court says the university is not entitled to QI. Pre-Garcetti precedent protects what the prof did here, Garcetti did not resolve the issue, and no Seventh Circuit precedent applied Garcetti to a professor's classroom speech. Therefore existing precedent did place the issue beyond debate, because pre-Garcetti law told the university it could not punish this speech and no post-Garcetti precedent established differently. Implicit in this is that university officials were not free to apply Garcetti on their own or to anticipate Garcetti's application to classroom speech.

This seems to flip the presumption: Absent law telling the university the speech is unprotected, it should have understood that it was protected. It usually goes the other way (the officer can act absent clear precedent that he cannot act).

On the other hand, university officials enjoy QI as to his compelled-speech claim because no case law holds that the government as employer cannot compel its employees to speak. Barnette (which we discussed in the QI Puzzle about writing the pledge) is about students and no law addresses employees.

I expect this appear in the next edition of the book.

For Monday

Tuesday audio.

Prep the remainder of Chapter 6.

    • Which civil rights statutes validly abrogate and which do not and why?

    • Consider whether the following claims by a fired attorney 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 (by name) under § 1983?

    • How does the precise right being enforced matter? Consider the validity of ADA claims against a state entity in the following cases:

        • Prisoner with disability challenging prison conditions

        • Bar applicant with disability challenging conditions for taking bar exam

    • What is the doctrine of Ex parte Young? What are its terms and elements? How does it relate to § 1983?

    • What are the legal fiction(s) on which it rests? What is the argument it is not a legal fiction at all?

    • Prep all remaining Puzzles for the chapter.

I expect to finish this on Tuesday, so the next panel should be ready to go Tuesday.

 

For Tuesday

Monday audio. Immunity Papers due in class tomorrow.

We continue with the Monell Puzzles--## 3, 4, and 5. What is the defense counter to the fact that DOJ found (and continues to find) inadequacies in city hiring, discipline, and retention)? What is the easy defense argument in # 3 and the more complicate plaintiff argument (go back to review different ways of establishing constitutional liability from Chapter 3).

We then move to State Sovereign Immunity, Section 6.B.

  • 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 constitutional powers and why? 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 (by name) under § 1983?

    • Consider the validity of ADA claims against a state entity in the following cases:

        • Prisoner with disability challenging prison conditions

        • Bar applicant challenge conditions for taking bar exam

New limits on Bivens

From Prof. Vladeck, on an DOJ amicus brief urging further restrictions on Bivens. This includes a nice discussion of the intersection between cause of action and immunity.

Taste of Qualified Immunity

From the Fifth Circuit, affirming denial of QI in a suit against a detective to created the false evidence that produced a wrongful conviction. The opinion author, Judge Don Willett, is a Trump appointee and one of the leading lower-court critics of qualified immunity. Some of that leaks into this opinion, where he offers the position of "this is all wrong, but we can't change it, only SCOTUS can."

For Monday

Tuesday audio. Immunity Reax papers due next Tuesday.

Review and prep the Puzzles for Part 6.A; don't move to 6.B until Tuesday.

    • What are the four situations that can establish municipal liablity?

    • What is "failure to [blank]" and what is the theory behind it as a basis for Monell liability? What are the elements?

    • Given the gap between municipal and individual liability, how will the municipality defend itself in a typical Monell action?

    • What is the difference between the "legalist' and "governmentalist" theories of § 1983 liability?

    • Work the Puzzles; go through all different theories of municipal liability and why they do or do not work.

    • Pay close attention to Puzzle # 3. There is an obvious reason why the Monell claim fails.  But how can the plaintiff get creative--going through everything we have covered in the class--to try to establish liablity despite the limitations on Monell.

For Tuesday

Monday audio.

We will finish the Immunity Puzzles tomorrow. Reax papers due next Tuesday.

We then move to Entity Liability, beginning with Municipal Liability. Prep § 6.01, plus all of Part 6.A. Consider: 

    • What are the arguments for and against entity (as opposed to individual-officer)( liability, given the purposes of § 1983 and the problems of individual immunity? What unique purposes does entity liability serve?

    • What is the textual and policy basis for municipal liability under § 1983? What are the textual and policy limitations on that liability?

    • When can a municipality be liable?

For return from break

Tuesday audio.

We continue with Qualified Immunity. What is the purpose of the clearly established requirement (independent of the general purposes of immunity), what problems does the requirement create, and how do you determine CE? What are the solutions to qualified immunity (if indeed it is a problem) and who should create them?

I expect QI to cover Monday and some of Tuesday (including the Puzzle in § 5.21). Then we will begin Entity Liability late on Tuesday.

Enjoy your break.

For Tuesday

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

We will finish the Prosecutorial Immunity Puzzles. How would you distinguish Lacey from a suit by a line prosecutor alleging the office discriminates against her in case assignments. Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity.

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?

Under Color of What Law?

We discussed this issue a bit during the Bivens discussion: What happens if state or local government enforces federal law. The answer, as we said briefly, is that it depends on how the officer was acting. A state or local official enforcing federal law for the state or locality is under color of state law and subject to § 1983. A state or local official working for the federal government acts under color of federal law and is subject only to Bivens.

This Ninth Circuit case addresses the issue as to two local law enforcement officers working for a joint task force created by federal law and supervised by federal officials.

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 judicial immunity? How does the concept of "jurisdiction" affect both judicial and prosecutorial immunity? Think about the "absence of jurisdiction" idea in Anilao (Puzzle # 3) and how that argues for or against immunity in that case.

Consider an additional Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:

Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”

We will begin Qualified Immunity on Tuesday.

For Tuesday

Monday audio. Bivens papers due at the beginning of class.

We continue with the Puzzles for Legislative Immunity. Why does the usual executive/legislative divide not apply to internal rules--why isn't the sergeant-in-arms or other House official performing the non-legislative function of enforcing the House rule (akin to the Mayor or Sheriff enforcing the zoning ordinance)? Break out Puzzle # 3, which has a number of issues in a number of directions.

Move to Judicial Process Immunity, covering judicial (which will be our main focus tomorrow) and prosecutorial. Read the whole Part, although we probably will cover the Intro and Judicial.

Consider how this story about two disciplined judges relates to judicial immunity. 

Consider an addition Judicial Immunity Puzzle: Plaintiff sues for a 4th Amendment violation:

Judge Robert Benitez (S.D. Cal.) was presiding over a parole-revocation hearing. In the audience was th1 3-year-old daughter of the defendant. The defendant asked for leniency, pointing to his daughter in the gallery and the danger of her falling into drug use if he were not around. Judge Benitez orders the marshal to handcuff the girl and have her sit in the jury box. he explained that he wanted to send a message: "So your dad’s made some serious mistakes in his life, and look at where it’s landed him. … And if you’re not careful, young lady, you’ll wind up in cuffs, and you’ll find yourself right there where I put you a minute ago.”

Other parts of the Ku Klux Klan Act of 1871

The City of Springfield (OH) and numerous individuals filed suit against individuals and groups that stirred up hatred and discrimination against the city's Haitian community last fall (eating dogs, etc.). The complaint has two federal counts, both features of the KKK Act.

Section 1985(3) provides for private suit against those who conspire to deprive people of civil rights, a civil counterpart to 18 U.S.C. § 241 (from the 1870 Act). It targeted the Klan--suit runs against those who "conspire or go in disguise on the highway or on the premises of another"--and most recently was used to secure a substantial monetary judgment against the organizers of the "United the Right" Rally in Charlottesville. The HBO movie No Accident offers great behind-the-scenes look at the lawyers and the lawsuit in Charlottesville; worth watching.

Section 1986 imposes civil liability for failing to act to prevent others from violating § 1985. We will talk about § 1986 briefly when we get to municipal liability.

The lawsuit also gives a nice illustration of the role of defensive litigation: One defense these groups will raise is that their speech was constitutionally protected and thus they cannot be liable in private litigation.

Blue Wall and State-Created Danger

In discussing state-created danger, we talked a bit about the "Blue Wall" and how state-created danger might play in a "Blue Wall" situation, in which the affirmative actions of police protecting one another enhances the danger. I shared this case in which one officer disclosed a domestic-abuse report to the husband, who was a fellow officer. This case offers a different version: The department violated protocol in investigating an officer for years of child sexual abuse (e.g., allowing him to be present while the alleged victims, his children, were interviewed). The plaintiff framed this as state-created danger; the district court dismissed because the complaint only alleged inaction; the court of appeals seemed to be looking for affirmative acts, while struggling to find causation.

For Monday

Tuesday audio. Bivens Reax Papers due next Tuesday.

We continue with Immunity, starting with Legislative Immunity (Part A) on Monday and continuing to Judicial Process Immunity (Part B) for Tuesday. For each, consider how the answer to the key questions--who is immune, for what functions are they immune, and from what are they immune.

And for an additional Puzzle and to show why this is always in the news: This lawsuit against two members of Congress for voting for a bill to send money to Israel despite Israel committing what they allege to be human rights violations. What do you make of the argument by plaintiffs' lawyers that" immunity does not extend to a legislator who votes in favor of legislation when they know, or should have known, that the legislation is unlawful?

For Tuesday

Monday audio. RPI Papers due tomorrow. Back inside, because it will be too warm this week (sad . . .). I will begin recording attendance tomorrow; you can miss 15 % of class hours before you are referred to the administration.

We will finish Bivens, so be ready to work through the three Puzzles.

    • What would congressional action look like?

    • 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)?

We will begin Immunity with § 5.01. We will begin with Legislative Immunity next Monday.

    • What are the purposes and policies behind all immunity?

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

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

    • What are the three aspects defining any immunity?

Argument Cases (Updated and Moved to Top)

Here. Confer with your co-justice as to who will serve as chief and your opposing counsel to decide who represents which party. The first party listed is petitioner--the losing party in the court of appeals.

You may write your reaction paper on any case you are not assigned to judge or argue.

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.

Two quick notes on state-created danger.

First, see this 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.

But 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 off-duty officer causes harm not under color and the plaintiff victim argues that the kid gloves with which on-duty colleagues treat that officer increase the danger to the victim.

Second, on James' idea to pursue Watts as a First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that the ref 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 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. 

Finally: Compare § 1981 with Title VII, illustrating the distinct issue of overlapping statutes. Both can be used for certain types of employment-discrimination claims, although in many cases only one or the other will apply.

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?

Civil Rights Bootcamp

Sponsored by the ABA. (H/T: Madeline). Might make an interesting supplement to and expansion on some of what we have been doing here.

For Tuesday

Monday audio. Today marked the third straight class in which only 9 people have showed up. That is unacceptably low. Regular class attendance is an expected part of this class, whether or not you are on panel. We should not regularly have more than 1/3 of the class not showing up.

Panel # 1 papers are due tomorrow at the beginning of class. Please note that your paper must deal with state action/under color, not something we will cover later in the book and the class.

Complete the reading for Chapter 3, including the assigned Puzzles. Note where the various cases have been brought and how that affects the arguments you make as the plaintiff. I expect to finish this chapter tomorrow, so papers will be due next Tuesday.

Civil Rights Division freezes all civil rights litigation (Updated)

Story here, although no one has included a copy of the actual memorandum. (Protip: If a story about a legal development does not include a link to the document discussed, the reporter is bad at his job).

As reported, the division must stop litigating ongoing cases, bring no new cases, and submit recent settlements (under § 12601) for reconsideration. The latter includes consent decrees with many police departments, including Minneapolis following the murder of George Floyd and Louisville following the murder of Breanna Stewart.

We have discussed government enforcement a bit and will talk more when we reach Remedies at the end of the semester. One drawback to US (rather than private) enforcement is the risk of changes in priorities when administrations change. But one administration undoing another's work and freezing all litigation efforts is unusual. In 2017, the Obama DOJ rushed to finalize a bunch of settlements with police departments to get them under the wire before the Trump DOJ took over. But the new department did not undo those settlements.

Changes in administrations historically affect things at the margins and ake some time to implement. This is why there is usually some legal continuity across administrations, regardless of party and ideology. (For example, it took several years for the Reagan DOJ to shift away from the antitrust approach of the Carter DOJ). The new administration is trying to speed that process considerably.

This could create an interesting conflict with federal judges. They may not like or accept the government slowing down the docket, especially with pending criminal cases (which by the Constitution and statute must be conducted in a "speedy" manner). And they are suspicious of government changing positions in pending litigation when the presidential administration changes. This is a vestige of the view that courts do "law" and law is above the politics of who is in the presidency. Many scholars consider that view naive, but judges take it seriously.

Update: This from Prof. Steve Vladeck (recommend subscribing to his Substack--he does great stuff on Fed Courts and Civil Rights. We will discuss a bit about the 8th Amendment piece in class on Monday.

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.

We did not get to the discussion of § 1981 so I will place it here. As discussed on p.90, § 1981 (from the CRA of 1866 and 1870) creates a private right of action against private discrimination but not public discrimination; it is enforced against the government through a § 1983 "and laws" action. There was a lopsided circuit split as to whether the CRA of 1991, which added § 1981(c), changed that and created a new, independent right of action--the Ninth Circuit said yes, everyone else said no. In 2023, the Ninth Circuit changed direction, overruled precedent, and go on board with everyone else--§1981(c) does not create a right of action and § 1981(a) is still enforced against the government through § 1983. This relates to one of our argument cases, on the statute of limitations for such actions.

Move to Enforcing the Constitution, Part A of Chapter 3, as well as § 3.13 (on parallel claims). We will not be getting deep into substantive constitutional doctrine, only getting a sense of the basic rights enforceable and how.

    • 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?

    • Really work the due process puzzles.

For Tuesday

Tuesday audio. Happy MLK Day and Inauguration Day. FWIW, this is the second time that an Inauguration has aligned with MLK Day (since it became a national holiday in 1986). The first was Bill Clinton's Second Inauguration in 1997. It will not happen again until 2081.

We will finish Chapter 2 with VDARE and the Hate Speech Act Puzzle in § 2.05[3]; what postures can the property owner assert his First Amendment arguments? That will finish Under Color. Reaction Papers will be due on Tuesday, January 28.

We move 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 to enforce a statute? 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?

For Tuesday

Monday audio. Argument assignments will be posted shortly.

Prep the rest of Chapter 2. Please do the work in advance of figuring out the Puzzles, particularly the ones in § 2.03[6]--identify the appropriate test, the requirements of that test, and the facts that work for both sides. You should not be flipping through to figure out the facts during class.

Quick final word on Lindke: The Court somewhat conflated the officials' First Amendment protected activities of posting to the site and the conduct triggering the lawsuit of blocking people from the site. The former triggers action under color and thus the limits on the latter. That is, the content of the page dictates whether the person managing it is under color and thus whether the person managing it can block citizens. To be clear: We genuinely do not know whether President Trump II can block people on Twitter.

For Monday

Tuesday audio.

I believe the class is now final but I am waiting until the end of the week. I will post final panels by Monday. I also expect to get the argument cases to you by Monday. 

You should now see how you need to prepare to discuss the Puzzles. Given the class size, I hope to get everyone involved every day.

Review the reading and puzzles for the rest of Chapter 2, including Lindke. This will carry us through most the two days next week.

Final Panels

We appear to have our final numbers--14. Panel # 1 (Under Color) obviously is ongoing and remains unchanged. After the jump are the new-and-final Panels ## 2-8. Ignore whatever you had previously.

For Tuesday

Monday audio. Panel # 1 (Thomas, Assaf, Andrew, Julian, Yohance, Madeline) is on for tomorrow. And tell your friends.

Review the Syllabus, Assessments, and Panels; I will take questions at the beginning of class. In particular: Arguments are on the schedule for Friday, May 9 (day after exams end). We could do them on Thursday, May 8 (last day of exams) if it will not interfere with anyone's other exams and assignments.

For tomorrow, prep §§ 2.01 and 2.02. In addition, read Lindke v. Freed in place of the material on p.30.

    • 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?

    • Prep the puzzles in § 2.02[6]. Prep Davison (Puzzle # 2) in light of the Court's decision in Lindke. Is there a way that Wilson and Gomez can come out differently?

Welcome to Civil Rights

Welcome to Civil Rights and the FIU Civil Rights Blog. Below are several posts you must read and follow prior to our first class meeting on Monday, January 6.

All classes will be recorded and posted to the Civil Rights Blog. 

To read the blog, go to http://fiucivilrights.blogspot.com; posts can be read going down from most recent to least recent. For complete information on the purposes and uses of the blog, see Syllabus and Semester Assessments.

 

Panels will be assigned and posted the week prior to class, once I have a better sense of enrollment.

 

And, to put you in the mood for the course: