For Tuesday, April 7

Monday audio. 

Prep the rest of Abstention (Ch. 8). I hope we will finish that tomorrow.

Remedies will begin next Monday and take us through the final 3 days. 

For Monday, April 6

Tuesday audio.

Prep Pullman and Younger. Consider the underlying goals and assumptions of each.

For Tuesday, March 31

Monday audio. Procedure papers due next Monday. All old papers available outside my office. We will do argument case assignments first thing tomorrow. I hope all 18 of you will deign to attend.

We will begin with the question on which we left off: What is the premise underlying the procedural limitations we see in Chapter 7. And how do those same limitations carry into abstention?

Abstention panel will go at the beginning of class. Prep Intro, Statutory, and Pullman. Our main focus will be on statutory abstention. Consider two additional terms: "Comity" (which David mentioned) and "parity."

Vladeck on recent QI cases

More on the two qualified immunity cases SCOTUS disposed of last week (one on a cert denial, one on a summary reversal: Here is Steve Vladeck on both cases, particularly the summary reversal and how it suggests a demand for factually identical precedent. Note the Court continues to assume away whether controlling circuit precedent can CE.

Primary Sources

The instructions for your papers make clear that you are to look to primary sources, not cite to the treatise discussions or conclusions about those primary sources. Everyone should be following that instruction.

11th Cir QI Case

New 11th Circuit decision affirming denial of QI to school officials who allegedly interfered for racially discriminatory reasons with a settlement agreement (a contract) the district entered into with an employee. Notable:

• The opinion does a nice job synthesizing and stating the rule/explanation for QI.

• FN 3 explains why this is a § 1983 action to enforce rights under § 1981.

• The court treats this as an obviousness case. 

• The court focuses QI on the wrongfulness of the defendants' conduct (and whether that wrongfulness was clearly established), not on the rules of individual liability (and whether they were clearly established). That is, it is enough that it was clearly established that people cannot interfere with contracts for racially discriminatory reasons; that their individual liability might not have been does not matter.

DeShaney controversy

An interesting DeShaney case out of New York. Plaintiff alleges she was watching (but not participating in) a pro-Palestine protest in a Jewish area of Brooklyn, then was accosted by counter-protesters while NYPD officers stood by. Complaint is here; the city filed a 12(b)(6) asserting that it has no obligation to protect, which allowed this site to print a "ha-ha, do you believe what the city is arguing" article.

Note a couple of things:

• The complaint pleads around DeShaney quite well. It alleges First Amendment claims (officers did not act in retaliation because they believed she was espousing pro-Palestine views) and due process claims grounded on state-created-danger, where their non-action sent a message of impunity (recall that the Second Circuit is most accepting of this "tacit approval" argument). While the city's "we have no duty to protect" argument caught the media attention, the plaintiff recognized and did not try to plead liability based purely on failure to protect.

• The case raises a unique First Amendment issue--can a plaintiff recover for a First Amendment violation based on government targeting what it erroneously believed was her speech. Her claim is that the officers did not act because they wrongly believed she was engaged in speech they did not like.

The reading mentions Heffernan v. City of Paterson, which found that a demoted employee could state a First Amendment claim based on his boss' erroneous believe that he had posted yard signs supporting a political candidate. The First Amendment focuses on the government motive (did it target speech) rather than the plaintiff's actual action. This claim would bring that argument out of the employment context.

• Of course, that should trigger thoughts of qualified immunity. Does Heffernan clearly establish that government violates the First Amendment whenever it retaliates against believed speech? Or is it limited to employment, such that the officers here were not on notice that failing to protect a person from a violent mob because of believed speech violates the First Amendment.

This class is everywhere.

For Monday, March

Tuesday audio. Before the beginning of class next Tuesday, please meet: 1) with opposing counsel to pick sides (petitioner is the loser below) and 2) with co-justice to decide who is chief. I will collect the info at the start of class on Tuesday.

We pick up with the question we left on: Why impose these limits on habeas review?

Prep the rest of Chapter 7, focusing on Heck. Have a look at this Fourth Circuit case (only 9 pages) on the statute of limitations for actions under § 1981(c) after 1991.

I hope to finish Procedure on Monday but in any event early Tuesday. Abstention should be ready to go on Tuesday.

BTW, the absenteeism is still too high. We have not had all 18 people in class in several weeks. The expectation is that you attend every class.

Lawsuit v. FIU

Filed on Monday. For our purposes:

• Naming FIU is a mistake, a waste of time, or belt-and-suspenders caution. Naming Pres. Nunez in her official capacity gets to EpY. Naming her in her individual capacity enables a damages claim. Since he did not name any other individuals, the theory must be that the president made all relevant decisions in ordering the investigation and thus "caused' the violation. Otherwise, plaintiff probably needs to name the other defendants involved in the investigation and the decision to investigate the speech.

• He will have a hard time overcoming qualified immunity to get those damages. There is almost certainly no factually similar precedent. Nor is this obvious. In fact, a recent Eleventh Circuit order in a case involving antisemitic speech by a UF lawsuit went the other way.

• Note how little time the case will spend in the district court. He will likely seek a preliminary injunction in the coming weeks; the grant or denial will be appealable (and will be appealed), putting the case in the 11th Circuit within a matter of weeks.

Stay tuned.

Orders from Monday

 Two noteworthy items relating to qualified immunity on today's SCOTUS Orders List.

• The Court summarily reversed the Second Circuit's denial of qualified immunity, over a dissent by Justice Sotomayor for Kagan and Jackson. The order is further evidence that, whatever hope people read into Riojas, the Court is not backing off its maximalist approach to qualified immunity. The Second Circuit relied on circuit precedent written by then-Judge Sotomayor. The majority held that the overlap between that precedent and the current was insufficiently precise.

• If you skip to p.33 of the full Orders List: The Court denied cert in Villeareal v. Alaniz, a closely watched QI case arising from the arrest of a journalist on charges of soliciting benefits from public servants for asking a source questions. Justice Sotomayor dissented from the cert denial, insisting this was a case of obviousness--the right of journalists to ask questions of government employees is "beyond debate" without factually similar precedent. And no judicial precedent was necessary to place officers on notice that they could not attempt to bring the charges they did.

Two new cases

SCOTUS decided Olivier v. City of Brandon, the Heck case in our arguments. For Jasmyne, Karlee, David and Elizabeth: You can use the opinion preparation, but proceed as if this opinion does not exist and the issue remains undecided.

SDNY denied in relevant part a 12(b)(6) in a lawsuit brought by several Columbia University students alleging that crackdowns on student protests violated the First Amendment. The basis of the claim is that a legislative committee and various agencies sent letters threatening Columbia's funding if it did not stop the allegedly antisemitic protests. Some things of note for our purposes:

    1) Legislative immunity bars the claims against the legislators. Their censorious motivations do not matter. There was a legitimate lawmaking purpose in inquiring into possible Title VI violations by Columbia students.

    2) Columbia acts under color under a coercion theory--the threat to federal $ coerced them to take action (stopping student speech). The court also declined to follow a unique line of Ninth Circuit cases  holding that coercion should trigger liability for the government rather than against the coerced party, in part because Columbia was a willing joint actor rather than a victim.

    3) The pullback on Bivens did not pull back on Ex parte Young actions for prospective relief against federal officials. Had the plaintiffs sought damages, the court would not have reached the under-color-of-federal-law analysis because it would not recognize a Bivens claim on these facts. But where plaintiffs seek injunctive relief, the court must apply the same tests to decide whether the nominally private actor is subject to suit.

    4) Note the entwinement between a Vullo retaliation claim against the government and a coercion claim against the private actor, where the plaintiff is adverse to both. In our Colorado Springs puzzle, the plaintiffs sued the government but not the hotel. In Bantam Books--the publisher and distributor were on the same side against the attempt to restrict speech. Here, Columbia seemed to agree with the federal government about the need to restrict speech. That adverse position to the plaintiffs makes them a target for the suit and state actors.

Become a better lawyer

 Two unrelated items, both of which should help you become good lawyers.

First, for all your shopping needs.

Second, the latest entry in "Do Not Be This Lawyer."

For Tuesday, March 24

Tuesday audio. No class on Monday. Entity Liability papers due next Tuesday.

Prep Part 7.A and 7.B. I hope to finish Procedure the week after next and move to Abstention.

For Tuesday, March 17

Monday audio. Please be more ready to engage tomorrow--not only the panelists, but everyone in the room.

We will finish Entity Liability, including the last part of Chapter 6 on distinguishing state and local actors. Review the recent Ninth Circuit case I mentioned here on when the DA is the state or the county and Part II of this recent SCOTUS opinion (slightly different context, but useful). 

We will begin Procedure; prep Part 7.A, including the assigned puzzles. 

Case with a liitle bit of everything

From the Ninth Circuit, rejecting a claim over plaintiff's prolonged pretrial detention; Plaintiff sued the supervising prosecutors and the county, alleging they suppressed exculpatory evidence and thus caused his lengthy detention. This case has several things we have studied or will study next week. 

• The court held that the supervising prosecutors have prosecutorial immunity because the decision to seek and not to drop charges is prosecutorial. Plaintiff tried to argue that the supervisors established and maintained a "code of conduct" that expected prosecutors to win at all costs and that administering such a code was an administrative activity. But the court said (along the lines we discussed in class) that this is not an employment policy or an office-management policy; this is a policy about how to prosecute cases. We could frame it as we did in class-to prove the violation requires proving misconduct (not dropping charges) in his prosecution.

• The court denied leave to amend to add a failure-to-train policy because the claim would fail on causation. Why? Because the line prosecutors all pointed out to their supervisors that the continued prosecution of the plaintiff was unethical and unconstitutional. The supervisors ignored those suggestions and continued the detention. But this means better training would not have avoided the constitutional violation--even had the prosecutors been trained, the supervisors still ignored their suggestions.

• The court rejected the claim against the Monell claim against the county for something we will hit on Tuesday or next week: Whether the DA's office is an arm of the state or the county? Be ready to discuss this analysis in class on Tuesday.

New legislative immunity case

From the Tenth Circuit, holding that legislators are immune from a First Amendment suit (by committee witnesses) challenging the enforcement of committee rules prohibiting dead-naming and misgendering during a hearing on trans-rights legislation. A concurring opinion attempts to apply the promulgate/enforce distinction,

Your successors in this class next spring will surely see this case during oral arguments. Meanwhile, fair game for a reaction paper (which is due in class, which we will have, next Monday).

For Monday, March 16 (when we do, in fact, have class)

Tuesday audio. Immunity papers due in class Monday. We do not have class the following Monday, March 23.

We pick up with why states can be subject to suit under Spending Clause enactments but not Commerce Clause enactments. 

Prep the rest of Chapter 6, With respect to § 6.15, have a look Part II of SCOTUS' recent decision in Galette v. NJT, considering whether a state-created entity has sovereign immunity from a tort suit in state court. The context is slightly different, but Part II offers a framework that might be of use in § 1983 actions.

I expect to reach Procedure on Tuesday, so the next panel should be ready to go. 

For Tuesday, March 10

Monday audio--Class, Extra. No class next Monday. Immunity papers due in a folder outside my office by 9:30 a.m. on Monday. One more make-up to do this semester.

We continue with the final puzzles in Part 6.A. Think carefully about First Midwest; there is an easy argument for the defense and a more complicated argument for the plaintiff that takes us back to the discussion of Chapter 3.

Then prep all of Part 6.B.

Under color of what law?

P.28 of the book mentions Yassin v. Weyker (8th Cir. 2022), which held that a local police officer detailed to a joint federal task force acts under color of federal law rather than state law, so any claim is under Bivens rather than § 1983.

The Eighth Circuit reaffirmed that conclusion last summer in a different action against the same cop, rejecting a theory under which an officer can simultaneously act under both state and federal law . SCOTUS denied cert yesterday.

For Monday, March 9 (Double Session)

Tuesday audio.

We will finish the Immunity puzzles, then move to Chapter 6 and Entity Liability; prep § 6.01 and Part A. Parts of the panel will be missing because of a competition, so we will need broader participation beyond the panel 

State-created danger

This story reflects a fairly common state-created danger case: (Usually) a woman seeks legal protection from abusive law-enforcement-officer domestic partner. Police officers tip domestic partner off to complaint. Domestic partner injures (or worse) woman. Woman sues officers or department (not the abusive partner) for the tip-off on an SCD theory--tipping the partner off worsened her situation and made her more susceptible to third-person abuse.

FTCA Primer

A nice overview from Prof. Steve Vladeck.

For Tuesday, March 3

Monday audio. We will do our first make-up class at 12:30 next Monday, March 9 in RDB 2007.

Prep the remainder of Chapter 5, including the Accountability for Federal Law Enforcement Act (look at what would be § 1983(c)). We will begin with the connection between the clearly established requirement and the purposes of QI; with how CE is determined; and the arguments against requiring CE.

Recent developments

1) The group Protect Democracy has drafted a Model Universal Constitutional Remedies Act, a uniform converse-§ 1983 statute that all states can adopt. (Akin to the UCC). The main text copies § 1983, defining under color as under the law of any government. It also codifies several non-textual pieces of § 1983 (immunity, statutes of limitations, attorney's fees).

2) A fun judicial immunity puzzle: A retired state trial judge was temporarily reappointed to the bench for a one-year term. When word of the judge's pro-MAGA pre-appointment speech got out and a pressure campaign began, the Illinois Supreme Court vacated the appointment. The judge has sued the justices, alleging violations of due process and the First Amendment. Given our discussion of judicial immunity, note the remedies sought. Should judicial immunity apply to the damages claims? Note that another doctrine we will discuss later in the semester may arise in this case. Fair game for a paper.

For Monday after Break

Tuesday audio. Bivens papers will be outside my office by tomorrow or Thursday morning, at the latest.

Continue with Prosecutorial Immunity, including the extra puzzle I posted for today.

Prep Qualified Immunity, which we will reach in the second half of class Monday and into Tuesday. As part of qualified immunity, review the proposed Accountability for Federal Law Enforcement Act (we looked at it for Bivens), for what would become § 1983(c).

Enjoy your break. 

For Tuesday, February 17

Monday audio.

Review Judicial and prep all of Prosecutorial. We pick up with the question we left on: What lines can we use to distinguish judicial from non-judicial (especially administrative/ministerial/executive) functions.

Two new puzzles to prep:

For Judicial: Plaintiff sues for a 4th Amendment violation (pretend for a moment that Bivens actions exist):

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.”

(Note: This is more common than we would like to think). 

 For Prosecutorial: 

Gonzalez presented at the hospital with either self-induced or spontaneous abortion. The District Attorney and Assistant District Attorney, alone or in some communication and cooperation with the county sheriff (it's unclear), investigated the incident by speaking with hospital officials. The DA and ADA obtained a grand jury indictment for murder, despite a statutory exemption for the conduct of a mother toward an unborn child. Gonzalez is arrested and detained for three days. The DA ultimately drops the charges. Gonzalez sues under § 1983.

Speech-or-Debate Immunity in the news (Updated)

Because the class is about private litigation to enforce civil and constitutional rights, our discussion of legislative immunity focuses more on how it limits accountability for violations of individual rights rather than the important structural role it plays in allowing the legislature to check an overweaning executive.

A few examples in the news.

First (H/T: Noah), Rep. Ro Khanna took to the House floor to identify six people whose names had been redacted in the Epstein.

Second, a grand jury declined to indict the six Democratic members of Congress who posted a public video reminding service members of their obligation to disobey unlawful orders. This comes alongside Sen. Mark Kelly's lawsuit (Kelly is one of the six and a retired Navy officer) to enjoin an administrative proceeding to reduce his rank and pension. All six will, if it comes to it, raise Speech-or-Debate immunity as a defense to any attempt to punish or sanction them for that video. Of course, this gets tricky because immunity does not extend to public-facing statements. Many believe Hutchinson v. Proxmire and Gravel (to the extent they were trying to publish the Pentagon Papers in a book) were wrong, that public statements constitute an essential part of the legislative function.

Third, a whistleblower filed a complaint against Director of National Intelligence Tulsi Gabbard that made its way to the relevant committees and sparked some under-seal back-and-forth. Of course, any member of the House or Senate could read the whistleblower complaint (or the details of Gabbard's responses) on the floor.

That the first and third do not happen very often owes to the norms of the body (which are important) and the power of each house to punish its members--the important check on abuse of legislative immunity (wherever the power to punish may come from). 

Update: The district court granted Kelly's motion for a preliminary injunction, concluding that the military proceeding violated the First Amendment. No Speech-or-Debate discussion (again, because it probably does not apply). The discussion of "exhaustion" will come up when we hit Abstention in Chapter 8.

For Monday, February 16

Tuesday audio. Bivens papers due Monday.

We continue with Legislative Immunity. What is the source of legislative power to regulate its members? Can an individual sue to enjoin enforcement of a legislative subpoena on the ground that it violates the First Amendment? If not, how can that person raise the First Amendment? Does legislative immunity generally deprive individuals of remedies as to constitutionally invalid laws?

In addition to the puzzles, consider 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"? What should the plaintiffs do? 

Prep all of Part B (Judicial Process); we will get to judicial on Monday and prosecutorial on Tuesday. 

For Tuesday, February 10

Monday audio. Bivens papers due next Monday, February 16. RPI papers due at the start of class tomorrow.

Viz one point from class: Section 1442 is the "federal officer removal" statute, which authorizes a federal officer sued under state for actions under color of his office to remove the action to federal court. This will apply under any "converse § 1983" statute such as the Illinois Bivens Act. So these actions will end up in federal court. But state law provides the cause of action that is missing without a broader Bivens cause of action.

Prep § 5.01 and Chapter 5, Part A (Legislative Immunity). We are now shifting from the elements of the cause of action against individual officers to the defenses those officers will raise. 

In addition to the puzzles, consider 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"? What should the plaintiffs do?

Rethinking fund-stripping as remedy

Chapter 3 discussed the mechanisms for enforcing spending laws absent private litigation--the federal government stripping funds. This is unwieldy and unhelpful for reasons we discussed in class.

But this article (around p. 30) goes a step further--stripping funds is unhelpful to enforcing civil rights laws but useful for a president to use the threat to strip money (and the pretext of civil rights enforcement) to abuse his political opponents or critics. The authors argue this is what the Trump Administration is doing with Harvard, Northwestern, Columbia, and other universities. They propose that Congress eliminate fund-stripping as a remedy in favor of more vigorous private enforcement of civil rights laws (presumably by creating an express private right of action to override the recent narrowing of § 1983.

For Monday, February 9

Tuesday audio. RPI papers due on Tuesday.

We continue with Claims Against Federal Officials. 

Where do things stand with Bivens in the current moment? How would that likely affect claims against ICE and CBP officers by: 1) the families of Renee Good and Alex Pretti and 2) this guy? The Supplemental Materials post has four pieces of proposed legislation (all but "Ending Qualified Immunity Act") designed to codify Bivens or otherwise create some cause of action--the "Accountability for Federal Law Enforcement Act" is the only one that has been introduced; review and discuss the details of each. Finally, review § 2680(a) and (h), which is part of the FTCA and Westfall Act; consider how plaintiffs might use these against federal law enforcement. Read Goldey v. Fields (only 3 pages), a summary reversal of a grant of a Bivens action in an 8th Amendment excessive force claim. 

We will get to Immunities on Tuesday. 

For Tuesday, February 3

Monday audio.

We will finish RPI tomorrow, discussing the connection between constitutional and statutory claims. A city employee is harassed by co-workers and fired by her boss because of her race; what claims can she bring and against whom? RPI papers will be due next Tuesday.

Then move to Claims Against Federal Officials. This subject obviously is uniquely relevant to current events. Where do things stand with Bivens in the current moment? How would that likely affect claims against ICE and CBP officers by: 1) the families of Renee Good and Alex Pretti and 2) this guy? Review the three statutes designed to codify Bivens or to create some cause of action against federal officials? Finally, review § 2680(a) and (h), which is part of the FTCA and Westfall Act; consider how plaintiffs might use these against federal law enforcement. Read Goldey v. Fields (only 3 pages), a summary reversal of a grant of a Bivens action in an 8th Amendment excessive force claim.

 

 

For Monday, February 2

Tuesday audio. Under Color papers due at the beginning of class.

We skipped this for time: In § 3.08[4] (p.90): In 2023, the Ninth Circuit overruled precedent and fell in line with all other circuits: § 1981(c) clarifies the scope of § 1981(a) but does not provide a new cause of action. Section 1981(c) is enforced against governments through a § 1983 action. 

Finish Chapter 3, working through DeShaney and the associated puzzles. Focus on the connections between constitutional rights and statutory rights. 

For Tuesday, January 27

Monday audio. Panel # 1 papers due next Monday, February 2.

Prep and review Ch. 3, Parts B (including the text of the sub-section 23, the Free Choice of Provider provision) and Part A (on enforcing the Constitution). 

Consider an additional puzzle and whether the claim would be under the 4th or 14th Amendment:

    • Sosa: David Sosa was arrested and taken into custody twice on an outstanding warrant for a person with the same name but sharing no general features. The second time, he is held for three days until the sheriff's department runs a check to determine they have the wrong person.

More on the Church protest in Minneapolis

Following on our conversation from last week:

Three leaders of the group that entered the Minneapolis church to protest the pastor were arrested under a criminal complaint (a document that a magistrate used to issue arrest warrants); as we predicted in class, it charges § 241 conspiracy and violation of the Free Access to Clinic Entrances Act. The magistrate declined to issue arrest warrants for five others, including journalist Don Lemon. A district judge ordered the three released.

DOJ asked Chief Judge Schiltz of the District of Minnesota to issue the remaining arrest warrants; when he did not act immediately, DOJ petitioned the Eighth Circuit for a write of mandamus, although under seal and without serving the petition on the chief judge. Schilitz then sent two letters--one to the DOJ attorney handling the matter and one to the Chief Judge of the Eighth Circuit. Both are worth reading, as it is pretty extraordinary for a federal judge to say stuff like this in public documents.

Some general notes: 

    Although we will not discuss this case directly, this controversy is relevant as an example of what we will discuss in Claims Against Federal Officials and in Individual Immunities (especially Judicial and Prosecutorial).

    A complaint does not suffice as a charging instrument for felony charges; the Fifth Amendment requires those be pursuant to grand-jury indictment. The complaint is sufficient if the government pursues misdemeanor charges. Or it is sufficient to obtain an arrest warrant (which the government used to stage a perp work, complete with AI-altered photographs) and start the clock for submitting the case to a grand jury for an indictment.

    For those who have not yet taken Fed Courts (and I encourage you to do so): A magistrate is a sort-of deputy judge on the district court who handles preliminary criminal matters such as arrest warrants. The magistrate's decisions are reviewable by a district judge. A writ of mandamus is a petition to a court of appeals against a district court judge, seeking an order compelling the lower court to do something. 

Private university police act under color

So says the Sixth Circuit. 

For Monday, January 26

Tuesday audio. Argument assignments here. Here is the FACE Act, which provides for criminal penalties and presumably would be the underlying right enforced through a § 241 prosecution.

Finish the problems for Under Color. Panel # 1 will finish at some point Monday; papers will be due the following Monday.

Panel # 2 should be ready on Monday (sit at the far side of the room or the second large table if we are outside); prep the intro (§ 3.01) and Part B. What is the difference among a right, a right of action, and a jurisdictional grant? What are the four sources for rights of action for federal statutes? How can the Spending Clause be enforced without private civil litigation?

Also, since events overtook the book: The Court held 42 U.S.C. § 1396a(a)(23)(A)--known as the "free choice of provider provision to Medicaid--was not enforceable under § 1983. Be ready to make the arguments for both sides on this.

Cases for Oral Argument

Supreme Court Order granting certiorari. Standing Order on Procedure.

Make sure your name appears twice (once as judge, once as advocate). Everyone should have at least a one-case break between their cases.

Sometime in early April I will gather information as to who will represent which party and who will serve as Chief Justice for each panel. The Standing Order describes how arguments function.

Remember that you can write about these cases for your reaction papers except for the case you are assigned to argue and the case you are assigned to judge. So seven of these cases are fair game for each of you. I will provide a separate list of several cases that did not make the cut, all of which are fair game for writing.

This course in the current historical moment

This essay from David French in the New York Times touches on issues that form the heart of this case.

Focus on the beginning of the piece, imagining a conversation between Renee Good's family and an attorney. The federal statute he mentions is § 1983; we will discuss in a few weeks the 1971 case (and its later limits). And his theme--we have limited executive accountability--plays out in several other doctrines we will cover. Meanwhile, those who have taken Fed Courts should recognize the supremacy clause immunity that French mentions (and the fact that any state prosecution would take place in federal court).

French also introduces an idea that we touched on a bit in the introductory materials and will return to later: Since the Civil War and Reconstruction, we assume states threaten civil rights and the federal government will protect them. Current events suggest, at least in some places, the opposite is true. But we may lack the legal frameworks to deal with that.

For Tuesday, January 20

Tuesday audio. No class on Monday, as you all know better than I do.

Ricardo raised an issue after class: Trump could not act under color of state law because he is a federal official. This is correct. We will get into the different cause of action that are, or might be, available against federal officers; for the moment, assume the cause of action exists. For present purposes, recognize that we apply the same analysis for when someone acts under color of state law and when someone acts under color of federal law. The same issue arises in the Wasatch Equality and Google puzzles in § 2.03.

For Tuesday (not Monday, thank you very much): Prep the rest of Chapter 2. I expect to finish with this on Monday the 27th and transition into RPI. 

Also, I will post and assign cases for oral argument next week. 

Final Panels

Final panels after the jump. Please review and make sure you are assigned to 3. Six topics have seven people; two topics (on which we spend less time) have six.

For Tuesday, January 13

Monday audio. Final panel assignments will be posted after this. I will assign cases for argument early next week.

We continue with § 2.02, starting with the plaintiff's arguments in Butler. Remember to read Lindke in lieu of p.30; decide Puzzle # 2 (Davison) under that new standard. Consider: 1) Would Knight Foundation v. Trump come out differently under Lindke? 2) Can a legislator ever satisfy Lindke?

Then prep § 2.03 and the assigned puzzles. 

For Monday, Jan. 12

Monday audio. Review Assessments and Syllabus; questions in the first few minutes of Monday's class.

I wanted to draw attention to all the laws in the wave of 1960s/1970s Civil Rights legislation as well as in the post-1980s modern period. We did not discuss all of them in class. In addition to what is mentioned in the reading, note also Title IX of the 1972 Act (extending the laws prohibiting federal funds recipients (such as universities) from discriminating because of sex) and the Family and Medical Leave Act (FMLA), enacted in 1993.

For Monday, prep §§ 2.01-2.02, along with Lindke (replacing the discussion on p.30).