FEDERAL COURTS Law (Spring 2017) SYLLABUS

Transcription

1 FEDERAL COURTS Law (Spring 2017) Tuesdays/Thursdays 6:30 to 7:45 pm, Hazel 329 Judd Stone, Overview: SYLLABUS Federal courts as a subject matter enjoys a reputation for both its importance and its difficulty. It is surely important: it describes no less than the basis for, and functioning of, a coordinate branch of the national government. And how this branch operates powerfully affects both the other branches of government and the States, as well: not in a generalized, civics-class, abstract checks-and-balances sort of way, but directly. Ex parte Young injunctions against executive officials meaningfully circumscribe those officials power. Habeas relief significantly trenches upon core State prosecutorial, judicial, and occasionally legislative authority. Sovereign and qualified immunity or lack thereof radically alter governmental incentives, or at least the incentives of governmental actors. And more practically, the settlement value of many claims will change drastically contingent on whether a claim may or must be brought in federal court, because of the widespread perception that State courts adjudicate many claims differently than their federal counterparts. A lawyer cannot fully navigate interactions with either the federal government or with a private client without the material grouped together in federal courts. As a course, federal courts conjoins doctrines with little obvious relationship to one another into a whole the coherence of which is only apparent by the end. It is a popular battleground for many of the Supreme Court s enduring disputes: formalists versus functionalists, federalists versus nationalists, conservatives versus liberals. Specifically, it is a time-honored way for the sides in those disputes to rig the system in favor or against specific types of claims or defenses. Who is doing the rigging and who is merely applying precedent or attempting to undo previous chicanery is often difficult to perceive, and takes a tremendous amount of outside knowledge, context, and even subtext. The policies outlined below are organized around the central principles that there is no meaningful way around the irreducible minima of lots of reading and lots of

2 paying attention, and that part of my job is to encourage you effectively towards both. Course Material: At bottom, this course explores the basis for, operation of, and powers of the federal courts. That penultimate noun is the important one. It is approximately a combination of civil procedure and constitutional law, with the two blurring together in odd ways. Grouped together at a high level of generality, we will discuss, roughly in this order: (1) The nature of the judicial Power of the United States and justiciability, (2) Congressional control over the federal courts vested with that judicial Power, (3) The concurrent State court system and federal review of State court decisions, (4) Suits against State and federal officials or, put crassly, federal courts power to control the Executive, (5) Federal common law or, again crassly, federal courts potential mimickry of legislative power, (6) Judicial federalism or when federal courts may (or must) restrain themselves, and (7) Habeas proceedings, which touch on all of the themes outlined above. These areas are not equally important: for example, many courses on federal jurisdiction omit habeas, as it is difficult and does not feature prominently in many attorneys practices. I aspire to cover each of these topics thoroughly. I reserve the right to amend any of these topics. Course Policies: Please find below a comprehensive gathering of my policies on attendance, grading, etc. These policies function as a floor, rather than a ceiling: I may and probably will relax some of these policies when fairness dictates. Attendance and Class Participation: Attendance and class participation are mandatory not simply because the Law School requires it, but because this material is iterative and difficult. Missing class will meaningfully sabotage your understanding. 2

3 That said, I am aware of two key facts: (1) emergencies happen, and (2) they are often none of my business. Everyone is therefore permitted four absences, no questions asked. I will not consider your first four absences in your class grade. I intend to call on students often, and expect for you to be prepared. You may send me an no later than one hour before class asking me not to call on you that class. I will charge you one-half of one absence for doing so. Take advantage of this policy: if I call on you and you seem flagrantly unprepared (as opposed to forgetful about the details, or an honest misunderstanding about the importance of a case), I will mark you down as absent for that day. If for some reason you require a fifth absence for cause, please contact me. Do not contact me with a for cause absence when you still have one of your elective absences. That s what they are there for. Laptops and Technology: You may use your laptop in class to take notes, bring up case summaries, and for similar, class-related activities. You may not record lectures, either using a laptop or otherwise, without my prior consent. (I may choose to record lectures myself on certain occasions; if I do, I will make them available to the whole class.) I am skeptical about the usefulness of laptops in class and conscious of the fact they often lead to checking Facebook and the like. Please do not use the Internet for distractions during class these distractions just as often impede others learning as well as yours. If this rule is violated frequently, I will ban laptops from class. Please mute your cell phones before class begins. Evaluation and Grading: Your grade will be determined on the basis of a single final exam. The exam will be what I ll call limited open-book. I will permit some materials but not others. I anticipate permitting you to bring your casebook and any outlines that you have personally prepared for the course. This means your notes, your outlines, and so on but nothing that someone else has prepared, and no outlines from other courses, or commercial outlines. I will further take your attendance and class participation into account when evaluating your grade. I will only take it into account negatively if you exceed your absences per above. But I will consider it positively for active, useful 3

4 participation on a regular basis. Participating in class, therefore, cannot hurt you, and can only help you. Rescheduled Classes: I may have to cancel a class due to an argument being scheduled on the same day. If so, I will let you know as soon as possible. I will avoid this to the greatest extent possible. If I am forced to cancel a class, I will host a rescheduled class period at some point that appears most convenient for the greatest number of students. Attendance at a rescheduled class will be wholly optional but strongly recommended, and I will consider class participation in a rescheduled class more heavily when deciding whether to adjust grades based on participation. Office Hours: I will plan to arrive between 20 and 30 minutes before every class in order to discuss the material, answer questions or concerns, and to generally make myself available to students. This availability will be on a purely first-come, first-serve basis. I will also make myself available by appointment, either at the Law School or at my office in Washington D.C.; please send me an if you require this. You may ask questions by , too, if you prefer that to office hours but I may reserve answers to particularly complex questions for discussion in-person or in class. Materials: Our textbook is Hart & Wechsler s The Federal Courts and the Federal System, seventh edition. This is an expensive textbook I apologize in advance. Take some solace in that you will not have to buy another, and many practitioners (myself included) continue to refer to Hart & Wechsler. I will also likely propose suggested additional reading in class from time to time, as class discussion develops. This reading is exactly that: suggested. It will help your understanding and probably assist you on the exam, but I will not call on people to discuss it (though you re free to bring it up, if relevant). Reading Assignments: Reading assignments for the semester appear below. We will generally cover all of the readings listed below in class. I reserve the right to modify this reading before class: most likely during the previous session. I will more likely than not remove, rather than add, reading but not always. Unless otherwise noted, all pages are from Hart & Wechsler. 1. January 17. Introduction. The History and Role of the Federal Courts. 4

5 The Constitution of the United States of America, pp. xcv-cx Chapter 1, pp [read quickly] Chapter 2, pp , Marbury v. Madison and accompanying materials [read carefully] 2. January 19. Introduction to Justiciability and the Judicial Function. Chapter 2, pp (advisory opinions) [read carefully] Chapter 2, pp (finality, collusion, feigned suits) 3. January 24. Justiciability: Standing. Chapter 2, pp (standing) [skim the dissents] Spokeo, Inc. v. Robins, No (2016), available on the Supreme Court s website Chapter 2, pp (third-party standing) 4. January 26. Justiciability: Mootness, Ripeness, Political Questions. Chapter 2, pp (mootness and ripeness) Chapter 2, pp (political questions) El-Shifa Pharm. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (en banc) [skim]. 5. January 31. Justiciability continued. Richard A. Epstein, Standing and Spending The Role of Legal and Equitable Principles, 4 Chapman Law Review 1 (2001) Arizona State Legislature v. Arizona Independent Redistricting Commission, No (2015) (read the majority s piece on standing and Justice Scalia s dissent closely; skim the rest) 6. February 2. Jurisdiction: the Constitutional bases. Introduction to Congressional control over federal courts. Re-read Article III of the Constitution very closely Skim Marbury v. Madison again, pp Chapter 3, pp Chapter 4, pp

6 7. February 7. Jurisdiction: Statutory bases. Alternative tribunals. Federal question jurisdiction I. Chapter 4, pp (the limits of jurisdiction-stripping) Chapter 4, pp (alternative tribunals) Chapter 7, pp (constitutional basis of federal question jurisdiction) 8. February 9. Jurisdiction: Statutory bases. Federal question jurisdiction II. 28 U.S.C Chapter 7, pp February 14. Jurisdiction: Statutory bases. Declaratory judgments. Supplemental jurisdiction. 28 U.S.C Chapter 7, pp Chapter 7, pp [skim] Chapter 7, pp February 16. Jurisdiction: Statutory bases. Diversity jurisdiction. 28 U.S.C Chapter 13, pp Chapter 13, pp Chapter 13, pp February 21. Federal law in the state courts. Concurrent jurisdiction of state courts. The Supreme Court and State courts. Adequate and independent state grounds. Federalist 82 [skim] Chapter 4, pp Chapter 4, pp [skim everything but the cases; read those]. Chapter 5, pp Chapter 5, pp February 23. State law in the federal courts. Erie and the implications of no federal general common law. 6

7 28 U.S.C Chapter 6, pp [skim; this is just background] Chapter 6. pp [read very closely] Chapter 6, pp , February 28. Federal common law I: it s all in the word general. Chapter 7, pp March 2. Federal common law II. Chapter 7, pp March 7. Federal common law III. Enforcing primary obligations and introduction to remedies for constitutional violations. Chapter 7, pp March 9. Introduction to the suits challenging official action. The problem of sovereign immunity. 42 U.S.C Re-read Article III of the Constitution (again!) and the Eleventh Amendment. Akhil Amar, The Constitution and Criminal Procedure: First Principles, Introduction & Chapter 1 (on the Fourth Amendment). Skim these for background specifically for background on damages actions against governmental officials. Chapter 9, pp March 21. Sovereign immunity I. The Eleventh Amendment. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). This is a fairly dense opinion, and the casebook summarizes it, but try and parse it apart it s important. Chapter 9, pp

8 18. March 23. Sovereign immunity II. Injunctive relief from illegal official acts: Ex parte Young. Chapter 9, pp Read Ex parte Young extremely closely. Excluding Marbury and arguably Erie, Ex parte Young is the most important decision to our judicial system. Armstrong v. Exceptional Child Center, Inc., No (2015). 19. March 28. Ex parte Young (con t), abrogating sovereign immunity, Suits against State officials. John Harrison, Ex parte Young, 60 Stanford Law Review 989 (2010) [skim]. Chapter 9, pp March 30. Suits against State officials. Money damages against governmental officials. State official immunity. Chapter 9, pp April 4. State official immunity and conclusion to challenges to official action. Chapter 9, pp April 6. Judicial federalism: Congress s limits on federal court interference with state courts. Chapter 10, pp April 11. Judicial federalism: federal courts limits on themselves. Exhaustion. Abstention I. Chapter 10, pp April 13. Judicial federalism: Abstention II. Chapter 10, pp April 18. Habeas corpus: the course writ large. Introduction and history. 8

9 Chapter 11, pp [skim the notes, which is a lot of this]. Re-read Tarble s Case. 26. April 20. Habeas corpus: the course writ small. The Antiterrorism and Effective Death Penalty Act. Chapter 11, pp [skim the notes, which is most of this]. 27. April 25. This space reserved. I anticipate that we will get caught up somewhere in the term. I therefore leave this class day open as a buffer. 28. April 27. The big picture. The federal courts in a framework of limited government and the federal system. Conclusion. 9