Change to Essay Schedule

I understand that your final LSV briefs are due on Saturday, April 11. I understand that but for this Sunday being Easter, they would have been due this Sunday, April 5. So this coming weekend is really the "final" weekend to work on the brief.

Because I try to avoid assigning essays during that final "real" LSV weekend, I am changing the schedule as follows:

Essay # 6: Will be posted on Wednesday, April 8; due on Wednesday, April 15.

Essay # 7: Will be posted on Thursday, April 9; due on Thursday, April 16. 

Meet-and-Confer

On a recent ABA program.

For Wednesday, April 1

Friday audio: Section B, Section A. Section A meets at 12:30 on Wednesday. Essay # 5 due in class Wednesday. Essay # 6 will post on Wednesday.

A clarification on our different versions of VOA.

    • If VOA and BSO are not diverse, there is almost certainly supplemental jurisdiction over VOA's actual state law claims--they are part of the controversy over BSO's use of the photos during the 2012 season.

    • If VOA and BSO are diverse, the fictional old contract claim can be brought--FRCP 18(a) does not require relatedness and there is an independent basis for jurisdiction (§ 1332).

    • If VOA and BSO are not diverse but the fictional old claim is for Trademark infringement, it can be brought--FRCP 18(a) does not require relatedness and there is an independent basis for jurisdiction (§ 1331 and § 1338).

    • The problem is if the fictional old claim is for breach of contract and they are not diverse--FRCP 18(a) is ok but there is no independent basis for jurisdiction and § 1367(a) requires relatedness.

Again, this is how § 1367 limits FRCP 18(a). And it is why it is better for the party to find jurisdiction under § 1331 or § 1332. 

Prep the rest of Supplemental Jurisdiction; try to make heads or tails of § 1367(b). We will begin with the connection between the joinder standard under the FRCP and the jurisdictional standard under § 1367--how do the standards relate and what does that mean in terms of the claims that can be brought and whether there is jurisdiction? Be ready to analyze Jones and the counterclaim in Kinsmann.

Then prep Removal, working the connection among the statutory provisions.

I hope to finish SMJ on Thursday and begin PJ that day and into Friday. 

 

Complaint v. FIU (Updated and moved to top)

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.

Update: The question of whether the complaint is sufficient turns on whether a court can evaluate whether the speech is protected without seeing the actual statements in the group chat, which are not in the Complaint. Several people proposed a possible solution: The complaint refers to the group chat and attaches documents that refer to the group chat. So is that sufficient to incorporate the entire group chat as having been referenced and relied upon and thus made part of the complaint?

For Friday, March 26

Thursday audio--Section B, Section A. Essay # 5 posted. Essay # 6 will post next Wednesday.

We will finish Diversity Jurisdiction. Read through Zambelli (in Supp Materials--I forgot to put in on the Syllabus); it illustrates how the analysis of an LLC may dig several layers down until you find a non-derivative member/owner. It also shows how FRCP 19(b) fits into this.

Given what we now know about the differences between corporations and other entities, where is VOA a citizen? Can we tell from the Complaint? Where do we its citizenship is?

How does a court determine amount-in-controversy in an action for something other than money damages--for example, injunction, specific performance of a contract, reinstatement to a job 

Read the primer on § 1331 and federal question jurisdiction. That will give you the basics that you need for our purposes. We dig into this in greater detail in Federal Courts. Section 1331 is the main statute to keep in mind.

On Friday, we turn to Supplemental Jurisdiction. Prep § 1367(a) and (c), the assigned rules (plus FRCP 18), Glannon pp. 263-71, and questions 1-8.

 

Answers to Preliminary Exam

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)

Section B:

Mean: 47.38

Median: 50

High: 50

 

Section A: 

Mean: 45.44

Median: 45

High: 50

Federal Question Jurisdiction: A Primer

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.

Essay # 5 (Section B)

Download here. Due in class next Thursday, April 2.

Essay # 5 (Section A)

Download here. Due in class next Thursday, April 2.

For Thursday, March 26

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.

Schedule Changes for coming weeks

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.

Comments on Essays

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.

Sample Answer: Essay # 4 (Sec. B)

Graded papers available outside my office.

Median: 23.25

Mean: 23

High: 35

Sample answer after the jump.

Sample Answer: Essay # 4 (Sec. A)

Graded papers available outside my office.

Median: 27.14

Mean: 27

High: 40

Sample answer after the jump.

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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.