Final Class

Audio.

Arguments begin at 9:30 on Monday, May 11. Be in your seats before we start. Review the guidelines.

Remedies papers due at the beginning of the day.

Thank you for a great semester. 

Origins of the Shadow Docket

The birth of the shadow docket--the Court's frequent use of unexplained stays of agency and executive action--is generally traced to a challenge to a 2016 challenge to Obama Administration climate-change regulations. 

The New York Times has published a story about that stay, including the Justices' memos discussing the case. Well worth a read.

Abstention Papers

Available outside my office.

First Amendment right to be. . . .

make your own joke. Follow-up to the first item in this post about the woman arrested in Alabama for wearing an inflatable penis costume at a No Kings Rally. She was acquitted in Municipal Court. Based on the reporting, the First Amendment never came into play--the judge took the case as a serious application of the laws at issue, opined that there was probable cause to pursue the charges, but found state law not satisfied beyond a reasonable doubt.

Her lawyer is considering a § 1983 action. She has her favorable termination. Now we see what happens (probably a settlement for some money and lots of attorney's fees). 

For Final Class on Monday

Tuesday audio. I hope to have Abstention papers back to you by the end of the week.

Prep the rest of Chapter 9, including the tweak to Noah C (review puzzle): After the incident, the school enacts a policy prohibiting on-campus speech during school hours. Noah wants to challenge the policy in addition to challenging his suspension.

Please note the details on oral arguments. Please let me know about any food needs or restrictions.

Finally, note that SCOTUS next Monday will hear argument in TM v. University of Maryland on whether Rooker-Feldman bars a federal claim challenging a non-final state court judgment.

Under color?

A public defender does not act under color when representing her client in the criminal-justice process. But this?

Full disclosure: One of the first cases I worked on as a clerk on the district court was a § 1983 action against an assistant DA who assaulted a defense attorney during proceedings in state court. My judge concluded that the ADA's position was not a but-for cause of his conduct. (This was a puzzle in early editions of the book).

For Tuesday, April 14

No audio because of Amber Altert; sorry. Abstention Papers due tomorrow.

Prep the rest of Chapter 9, which will carry us through the final two classes. Remember to read Lackey v. Stinnie (Supp Materials), which resolves the circuit split discussed at pp. 343-44. Consider how this interacts w/ Mootness.

Consider a slight twist on Noah C. (p.352): Imagine that following his suspension the school enacts a policy prohibiting all speech on matters of public concern on school grounds during school hours. In addition to challenging his suspension, Noah wants an injunction prohibiting enforcement of that new policy. What are the potential mootness problems on all of his claims and how might he address them.

New items of interest

Two news stories of interest:

• This story illustrates the many moving pieces of § 1983 and how cases fall into the cracks. Especially at the local level in small locales, where officials wield more unchecked power. Accept that wearing the costume is constitutionally protected and not obscene.

Gamble was arrested, triggering the criminal process and Younger. Most prosecutors decline to pursue such an obviously weak case; here they added new charges (still defective under the First Amendment, but still), further barring resort to federal court. Gamble can raise the First Amendment as a (likely successful) defense. But this creates pressure (financial, legal, emotional) to pay a small fine in the state proceedings and make it all go away rather than push the First Amendment defense. Especially given the likelihood that the municipal court is as pathological as local law enforcement, such that she cannot vindicate her federal rights until an appeal.

She can pursue a § 1983 damages action if she wins in state court. But the police have a good chance to prevail on QI grounds, since it is unlikely they will find precedent involving an arrest for wearing an inflatable penis costume during a No Kings Rally. Worse, she might encounter a judge such as the one we read about in Chapter One, who believed that the arrestee's rights were sufficiently protected by avoiding liability in the state proceedings, rendering further use of § 1983 gratuitous and a waste of judicial resources.

• I will confess that I did not know about Viola Liuzzo--a white woman who marched in Selma and worked to register voters, murdered by Klan members who were acquitted by all-white state juries but convicted on federal civil rights charges. It sounds a lot like the story of Andrew Goodman, Michael Schwerner, and James Chaney in Philadelphia, Mississippi--Klan kills civil rights activists, white local juries acquit, Feds succeed on civil rights charges.

Yet the story of Goodman, Schwerner, and Chaney has been depicted in two documentaries, three movies (most famously Mississippi Burning), and a Normal Rockwell painting titled "Murder in Mississippi." Memorials have been placed throughout the country. Liuzzo is mostly a local story.

Consider the legal stories that stick in history, those that history forgets, and why the difference. The Mississippi case had unique elements: It involved local law enforcement and produced SCOTUS precedent (US v. Price) establishing conspiracy as a basis for action under color. That Liuzzo was a woman certainly affects perceptions--celebrated today as the only white woman killed during the Movemen, it no doubt rankled as "she never should have been there" in the early days of the Women's Movement. The story above adds another element--one of the people in the Klan car was an FBI informant and Hoover initially trashed Liuzzo as a drug user who was too cozy with the Black Alabamans she was working with.

Update: Suit v. Illinois Supreme Court

In February I flagged a lawsuit against the justices of the Illinois Supreme Court by a retired trial-court judge who had been dismissed from a temporary assignment in retaliation for some pro-MAGA speech.

The Justices moved to dismiss, raising:

    • General federalism/comity abstention, a sort-of hybrid abstention for cases that do not fit squarely within Younger or Rooker-Feldman. (Consider how this might apply to SKS, in the Abstention Review Puzzle).

    • Judicial immunity, based on the view that the termination of the appointment was a judicial act (relying, in part, on Rooker-Feldman cases, the logic being that a court order is a judicial act).

    • Judicial exception to § 1983, for seeking an injunction without first obtaining a DJ

    • Qualified immunity as a fallback.

This is a case to watch. It may appear in the next edition of the book.

Arguments, Monday, May 11

Argument schedule. Order on Procedure. Arguments begin at 9:30, which means everyone should be there well before that.

Lunch will be provided. Please notify me of any food restrictions or limitations.

For Monday, April 12

Tuesday audio. Abstention papers due next Tuesday. Look at SKS (the review puzzle) on your own--it offers a good chance to work through the relationship between Younger and RF.

Change in assignment for Monday: We will go in the order of the chapter--so Prep § 9.01, Part A, and Part B. You will prep Part C for Tuesday. We We will get through the whole chapter in our final 3 days of class.

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.