You can check your own work and figure out what you scored. You also can work the problems a la Gannon and figure out why the correct answer is correct and why your. answer might not have been. Happy to answer any questions.
1. (C)
2. (A)
3. (B)
4. (C)
5. (B)
6. (D)
7. (A)
8. (C)
9. (D)
10. (B)
To save class time, a primer on Federal question juridiction; you can read and take notes here. Review this prior to class on Friday and next week, as it will be helpful in understanding Supplemental Jurisdiction.
Read this in conjunction with the assigned (and linked) statutes. You can supplement this with Glannon pp. 25-30 and Part I.A of Royal Canin v. Wullschleger; both offer a nice basic overview.
We cover Federal Question Jurisdiction in greater depth in Federal Courts, an upper-level class that I encourage you to take during the next two years.
Yes, you are responsible for knowing this and it is fair game for the exam.
Wednesday audio: Section B, Section A. Please note some schedule changes for the coming week. Answers to Prelim Exam will post tomorrow morning. Essay # 5 will post at 12:30 tomorrow, due in class next Thursday.
Review and prep all of Diversity Jurisdiction, beginning with the puzzles. In analyzing these, be aware that the reason there is not complete diversity is different from the reason why there is minimal diversity; keep them separate. Think about why the statute requires complete diversity, especially how it relates to the purposes of diversity, and consider the arguments against that requirement.
Finally, to bring us back to early topics: The Justice Department sued Harvard for violating Title VI (which prohibits race discrimination by universities receiving federal funds), over its failure to stop campus antisemitism and its continued use of race in admissions. But, as the article describes, Harvard had previously sued DOJ and won on summary judgment (the case is on appeal), arguing that the federal government had improperly withheld federal funds from Harvard. So at least some of the issues that DOJ must prove to win its case were resolved on the SJ decision in Harvard's lawsuit. And that may trigger some issue preclusion arguments in the new action.
Note also that Harvard, as plaintiff, won on SJ. Another case in which the facts were undisputed (DOJ withheld the $ without following process) and the question is whether that violated Title VI and the First Amendment.
Section A:
• Wednesday, April 1: Meet from 9-10:10 (necessary to accommodate the holy day beginning that evening).
• Friday, April 10: Meet from 2-3:20 (necessary to accommodate Admitted Students Day)
• Friday, April 17: Meet from 2-3:20 (necessary to accommodate an LSV program)
Section B:
• Wednesday, April 8: Meet from 9-10:10 (flip Crim and Civ Pro this day)
• Friday, April 10: Class will meet at our regular time in RDB 1000 (Large Courtroom). Students will be visiting for Admitted Students Day. Everyone should be especially prepared and at the top of their game.
As we are four essays in, I want to provide a few comments and highlight some things.
• I do not care what conclusion you reach if you are asked to decide the motion as the court. I do expect a certain legal framework to be used to resolve that motion. So there is not "one right answer that Prof. Wasserman wants." There may be (and probably is) one right analytical framework. Obviously, if you are told to argue one side or the other, the "right" answer is whatever position you have been told to argue.
• Know your assigned role. If you are told to resolve the motion as the court, your answer should say that the motion is granted or denied, not that it "should be" granted to denied. This is part of following directions.
• You must get into factual specifics. To use the most recent essays, it is not enough to say "the pleading was timely." You must give the facts (the relevant dates) that show it is timely, This is one example; it is a common problem.
• You must explain why a rule applies before explaining and applying it. Sometimes that includes a factual predicate bringing the rule into play; you must explain why that predicate is met. For example, there is no need to discuss relation back unless the amended pleading is untimely. That means that before you introduce and discuss relation back, you must explain whether and why the amended pleading is untimely and thus why you are even discussing relation back.
• Similarly, where there are two possible rules governing an issue, you must explain why you chose to apply one or the other. For example, two rules provide a standard for relation back--15(c)(1)(B) and 15(c)(1)(C). Explain why you choose to apply one or the other. And explaining that why may help you avoid picking the wrong rule.
• Be careful about vomiting rules--reciting random rules without explaining why they are in play and why you are discussing them. Consider how rules fit together and discuss that connection, where appropriate, as part of your RE.
• Read the facts of each case carefully. Don't assume it calls for the precise analysis we discussed in class, as opposed to application of the same rules to a slightly different legal or factual situation or context.
Graded papers available outside my office.
Median: 23.25
Mean: 23
High: 35
Sample answer after the jump.
Graded papers available outside my office.
Median: 27.14
Mean: 27
High: 40
Sample answer after the jump.
Filed on Monday evening. I present this without comment on the substantive merits of the claim or on the morality of the speech at issue.
Three things of note:
• The Complaint is surprisingly restrained, given the high-profile nature of the case and the perverse incentives for the plaintiff and the attorney in such a case. No over-the-top rhetoric, no performative outrage, no pleading-as-press-release. The statement is short-and-plain--six pages (plus eight pages of exhibits).
• The Complaint does not quote or describe the statements at issue. Paragraph 16 characterizes the statements ("racial slurs, gender-based slurs, antisemitic rhetoric, and anti-LGBTQ language"), then alleges that none falls within a category of unprotected speech. Is that sufficient? Must the complaint plead the actual statements (or do more than characterize) in order for the court to evaluate whether they are protected? For present purposes, it is enough to know that racist, sexist, antisemitic, anti-LGBTQ+ speech is not per se unprotected by the First Amendment; something more is required to make the speech punishable. The case will turn on whether that "something more" was present on that group chat. Given that legal framework, has plaintiff done enough to state a plausible claim that the "something more" is absent here and that his speech is the sort of offensive speech that nevertheless remains protected?
• We have not discussed some unique procedures that govern constitutional litigation, where plaintiffs seek an injunction to stop enforcement of an allegedly unconstitutional state law or policy. For the moment, the Complaint is less important than the Motion for a Preliminary Injunction that plaintiff likely will file in the next week or so. This will argue that the speech is protected and will ask the court to stop the investigation while the litigation is pending and until the case can reach a final judgment. The motion previews the merits, asking whether the plaintiff is "likely to succeed on the merits"--whether he is likely to show that his speech is constitutionally protected from government sanction. The grant or denial of that motion is immediately appealable (§ (a)), meaning the case would quickly go to the Eleventh Circuit.
An FIU undergrad is doing a project advertising for a coffee shop. She needs research on coffee habits and thinks you all would be the perfect group.
Please take 5 minutes to do the survey: https://fiu.qualtrics.com/jfe/form/SV_0MQVB76tXYzHxem
Totally anonymous, for those who want your coffee habits to remain a national secret.
Two unrelated items, that should help you become good lawyers.
First, for all your shopping needs.
Second, the latest entry in "Do Not Be This Lawyer."
Wednesday audio--Section B, Section A. Prelim Exam posted; due at the beginning of class next Wednesday. Essay # 5 will post on Thursday, March 26. Essay # 6 likely will post on Friday, March 27. Enjoy your two days off.
We will finish Summary Judgment. Look closely at problems 3-6 in that Glannon chapter; they are helpful in understanding how this operates.
Consider the following:
The African American non-attorney sues for race-based failure-to-hire. There is evidence that they did not hire him because of his race and because he is not an attorney. Under the substantive law of mixed motive" cases, the plaintiff bears the initial burden of producing evidence that race played a role in the decision; the burden of production shifts to the defendant to show it would have made the same decision without considering race. The plaintiff bears the burden of persuasion that race was a but-for cause of his non-hiring.
Discuss how each side could move for summary judgment, what evidence they must or would offer as to each of those facts (considering FRCP 56(c)(1)(A) and (B).
To put things in context: The end of summary judgment marks the end of the pretrial process. The next step is trial (which we cover in Evidence next semester) or settlement. We now shift the focus of the class to forum selection. We discussed FRCP 12(b)(1)-(3) and the fact that motions can be made to challenge where the case was filed; we now are going to put substance into those motions and explore the law that determines where a lawsuit can be filed and why.
We begin with Subject Matter Jurisdiction. For Wednesday and Thursday, prep Overview and Diversity Jurisdiction. In preparation, review our discussion from the first couple days of the semester, when we gave a basic overview of jurisdiction, especially the distinction between original and appellate and between exclusive and concurrent.
Instructions. Preliminary Exam.
Type answers (by letter) on a sheet of paper, which will be submitted in class on Wednesday, March 25.
In discussing Scott v. Harris, we mentioned that the Court presumed the video had one obvious meaning and showed one obvious thing, not open to interpretation (which would be the province of the jury). Obviously that could expand summary judgment if taken too far.
This Seventh Circuit decision shows how lower courts have attempted to limit that effect, by describing Scott as a "narrow exception" for the "rare case" in which a video is subject to no competing interpretations so as to warrant summary judgment. The court makes clear that a summary judgment court cannot in all cases do an independent assessment of the video and thus preclude summary judgment.
Of course, the Seventh Circuit then found this to be that rare case and granted summary judgment for the defendant.
