Close readers of the December 2008 Testable Themes handout posted Thursday will have noticed that in #4. City of Donovan v. Dallas is described as precluding  "most"  state court injunctions of federal court proceedings, whereas in #9 the same case is described as precluding all such injunctions.  #4. is correct, but only because of the extremely rare situation, typified by Anna Nicole Smith's litigation,Marshall v. Marshall, Casebook pp. 456-457, where the federal court might seek by an injunction to affect a "res" that is already within the jurisdiction of a state court.

 

This may be of interest as a very small part of an exam question on how the REMEDY sought by a federal court plaintiff--damages, injunction, declaratory judgment--may affect the availability or scope of smj (including justiciability, abstention, and federalism-driven limits on federal court jurisdiction like the A-I Act/Younger, or the 11th Amendment)

 

Happy Thanksgiving.

Two previous exams are posted under "previous exams."  However the Spring 2005 exam is posted as a handout on the course page.  Two other documents pertaining to exams are also posted on the course page.

Susan Wilson

 

 

An illustrative  list of testable exam themes, written in late 2008, will also be uploaded to our course page later today.

All available past  Fed. Courts exams will be uploaded to our Course Page later today.  Have a good break. Should anyone wish to contact me during the break, please use hslewisjr@gmail.com.

 

 

MODIFICATION TO ASSIGNMENT FOR WEDNESDAY, NOVEMBER 4

Please add the following to the readings for Danielle's presentation on Wednesday: 

"Notes on 'Antecedent' State Grounds," Casebook pages 592-594, immediately before "C.," p. 594.

 

Thank you, HL

 

 

 

 

LATEST SCHEDULED CLASS PRESENTATION

 

Robbie Smith, on Wednesday, October 21. Thanks.

 

 

 

2 MORE PRESENTATION DATES

Val,  Tuesday, November 3

Brandy, Wednesday, November 11

 

Thank you, HL

ASSIGNMENTS FOR NEXT TUESDAY AND WEDNESDAY,  10/6 and 10/7 

On Tuesday, through pages 351-52, up to "a."--our final look at Standing.

 

On Wednesday, 10/7 , I'll consume the first 15 or so minutes of the class rapidly covering Mootness and Ripeness, i.e the materials at 360-374.   Kevin wil then  introduce a new topic via a short introductory assignment during the remaining 40-45 minutes. Thanks, HL

 

PRESENTATION DATE:

 

Nick Pavlov will present on Thursday, November 19. Thanks, HL

PRESENTATION DATE

 

Danielle Phillips will present on Wednesday, November 4.  Thanks, HL

 

PRESENTATION DATE

Steven Kwon presents on Tuesday, October 20.

PRESENTATION DATE\

 

 

Joe Stephens will present on Wednesday, October 28. We're on a roll!

PRESENTATION DATE

 

Taylor McNeill will present Thursday,  November 5.

 

So already taken are 10/7, 10/27, and 11/5.

 

PRESENTATION DATE

 

Aleta McLaurin will present on Tuesday, October 27. Thanks, HL

 

 

Class  Presentation Days:

 

Wednesday, October 7:  Kevin Hembree

MORE CONCRETE EXAMPLES OF ANSWERS TO QUESTIONS ON OUR "THEMATIC" EXAM

did you feel  initially reassured about the exam--knowing in advance that there will be thematic questions about "[federal, U.S. ]separation of powers" and "federalism" --and then wonder  about the specifics?  We've now got some examples to put a little flesh on the bones.

In response to a separation of powers question, for example,  Marbury  can be first on your list of examples/authorities.  It raises and (for the time being, in holding or dictum) answers such questions as, "Is Congress or the federal courts the boss of what a prior Congress meant by the language in an ordinary statute, e.g., one creating rights/duties/violations/judgeships? The language in a jurisdictional statute?   Which branch is in charge of creating claims--rights to sue in court-- for the statutory violations so declared?  Which is in charge of the meaning of Constitutional provisions?   For each answer above, is the boss that you identified the boss forever, or only until there's a legislative repeal?

In response to a federalism question, Monroe, especially Justice Harlan's concurrence, stands as a declaration by the Court that the 1871 Congress that enacted what is now Section 1983 intended that statute to alter the balance of power between the U.S. and the states in favor of the U.S.--an implementation of Congress' enacting authority under Section 5 of the recently ratified 14th Amendment.  That is, 1983 by its original design is inherently anti-federalism in nature, for it subjects local officials and local government defendants  [not States, after Will v. Mich. Dep't of State Police (1989)]  to federal court  judgments.  To keep this list of federalism issues growing,  ask yourself,  whenever you see that federal court power to grant relief under 1983 is involved, if that statute continues to be applied as an exception to the deference to state courts that federalism usually demands [see, e.g., Mtitchum v. Foster] or is not really as special as Justice Harlan thought because it gets subjected to the usual requirements of federalism [see, e.g., Younger v. Harris].  In this way you'll have a running, growing list of issues/authorities [i.e., statutes as interpreted by cases] to talk about in response to a thematic question about federalism.

Late in the semester, the chart at pages 385-387 entitled "When a Federal Judicial Forum for Sec. 1983 Claims/Issues Is/Is Not So "Special" that the Plaintiff has Access, First Access, or Unencumberered Access to It,"  from Lewis and Norman, Civil Rights Law and Practice  , Second Edition (Thomson West 2004), will be meaningful to you and assist with your list. I'll put a copy on reserve in the Library.  HL

 Thanks to the class member who pointed out the error in the assignment for Thursday, where the topic is implied private rights of action, i.e., judicially implied claims where Congress did not create them expressly, rather than federal common law, which will be on tap for next Tuesday.

And "Bogan,"  which you were asked to re-prepare for tomorrow, is Bogan v. Scott-Harris,  discussed in the absolute immunity materials previously assigned. 

Sorry for the confusion. HL

For Tomorrow (Wednesday)

Please re-prepare Bogan and 9th Circuit case immediately following on absolute LEGISLATIVE immunity.  Then the full assignment on  QUALIFIED immunity [from DAMAGES relief only]  , the only type of immunity usually available for law enforcement personnel, teachers, bureaucrats and others sued for "executive" function or capacity acts or omissions (and the kind that judges, prosecutors, legislators get when the act/omission for which they are sued is not within the scope of one of the absolute immunities).

For Thursday

Ill chat about 10 minutes on the limited and restrictive evidentiary ways a plaintiff can establish the liability of a local government entity defendant, i.e. a village, city, county  [States can no longer be 1983 defendants, when sued in their own name, after Will v. Mich Dept of Police (1989)] by satisfying the Monell dictums requirement (beginning with "On the other hand") that an entity may be liable only for federally unlawful  acts by its agents that were virtually compelled by the defendants entitys own "policy" or "custom."

Then well spend the rest of class on the material originally assigned for Thursday: when federal courts, hearing state law claims, may invent "special" federal common law despite the Erie Railroad interpretation of the Rules of Decision Act precluding federal courts from inventing "general" federal common law when hearing state law claims [through federal question, 1331, or supplemental, 1367(a), smj].

 

 

 

One Last Observation about  Haywood v. Drown:

 

Did you see the passage that sets out the settled view that Section 1983 is the type of federal statute that merely creates a claim ("remedy")  to assert rights that are not created by Section 1983 itself but instead come from the U.S. Constitution or from other federal laws?

 

 

You may be wondering what a thick report of a judicial opinion, Haywood v. Drown, is doing in your 1st-floor mailslot.  With apologies, I couldn't resist.  First, this Supreme Court majority opinion, stresses the importance [at least theoretically, since defendant may always removal a federal law claim] of state court concurrent jurisdiction to be available for Section 1983 (and other federal law )claims.  It even suggests that the federal and state court systems function in some sense to compose a single system of jurisprudence, and do and must work cooperatively.  An interesting counterpoint to this morning's Will  v. Mich. Dep't of Police (1989) Supreme Court decision that had the effect of denying either state or federal courts of jurisdiction to hear 1983 claims against named state defendants on the ground that states are not "persons" within the meaning of that word in 1983. 

Please read all of Justice Stevens' majority opinion.  Please also skim the very interesting view set out by  Justice Thomas, in Parts I and II of his dissent, where he writes speaks only for himself  and concludes, as a matter of history and structure of our nation, that state courts need not accept smj over any claim, including claims created by Congress or federal courts, that they do not wish.

Then please read more carefully Part III of Justice Thomas' dissent.   There he's joined by the 3 other dissenters, all of whom conclude, based on precedent, that  the only  limit the Supremacy Clause places on the states' freedom to limit or expand their own courts' smj [except of course that state courts may not entertain the handful of federal law claims over which Congress has given the federal district courts "exclusive" smj]  is  to forbid states from declining smj in a way that engages in hostile  discrimination against federal law claims (like 1983) and in favor of similar state law claims.

On Tuesday we'll  briefly take up any questions/observations you may have about  Haywood v. Drown;  discuss whether Justice Douglas' opinion in Monroe or Justice Harlan's, concurring, better explains the loose "under color of" holding on the facts of Illinois law and practice; and with great good luck, discuss not only the absolute immunity 1983 defendants get for  prosecutorial, legislative, or judicial acts, but start on the qualified immunity available to the vast majority of 1983 defendants (i.e. executive branch officers like cops, prison guards, benefit-denying bureaucrats, teachers). 

Please have a good weekend anyway. HL

 

 

 

 

 

 

SOME THOUGHTS ABOUT THE PAPER OPTION

 

There are two  topic criteria:

(1) The topic should deal mainly with a principal subject covered by the course, as suggested by the Syllabus.

(2) The topic may not significantly track one on which you have researched or  written for compensation, e.g. by or for a law firm (that would violate ABA accreditation principles).

If you think you'd prefer to do a paper,  but are having difficulty picking a topic, two suggestions:

(A) Wait a couple or few weeks, so that class discussion about principal course themes may bring a topic to mind; and/or

(B) Let's chat about it, and I may be able to identify a topic or two you find appealing.

 

A 1-2 page outline must be submitted by mid-October, and be approved no later than the end of October. It should contain the issues and subissues you'll address, with some of the major AUTHORITIES (cases, statutes, articles or other periodicals, books) listed next to the issues/subissues on which each authority offers precedent or support.

The paper itself must meet the length/format criteria described in the Syllabus, and of course be "original" in the minimal sense of not running afoul of rules against plagiarism.

Experience reveals that students who opt for the paper spend at least as much time developing it as do students who prepare for an examination in the course. The major difference is that the author works on his or her own schedule ,without time pressure, on a narrower slice of the course but in greater depth.

Please raise any additional questions you may have about this option either in our out of class. HL

 

 

 

 

FEDERAL COURTS

The Fall 2009 Syllabus can be found on the course page (please remember to save the document before opening it).

A hard copy can be found in the handout box under 'Lewis'