Fall 2014 Course Schedule

Fed Courts (LAW-643-001)

Meets: 10:00 AM - 11:50 AM (TTh) - Room 524

Enrolled: 29 / Limit: 60

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From the unique and complex legal issues arising out of the war on terrorism to the late Anna Nicole Smith’s quest for her husband’s fortune; from unprecedented congressional alteration of federal jurisdiction with regard to class actions, bankruptcy, large-scale accidents, and immigration law to the courts’ own mounting internal struggles with an ever-expanding caseload; and from the political idiosyncrasies of the Terri Schiavo case to the availability of domestic courts to litigate international human rights abuses, the study of federal courts has an importance and significance today unmatched in generations.

As a field, Federal Courts is principally about judicial power, including the full constitutional extent of that power, the constitutional and sub-constitutional limits on that power, and how that power is exercised by the federal courts to protect the separation of powers and other fundamental constitutional ideals. Thus, rather than studying a particular body of law, our focus in on a particular actor — the federal judiciary in general, and the “Article III” courts, in particular. To that end, our topics will include, among others, the constitutional scope of the jurisdiction of the federal courts (and Congress’s power to constrain that jurisdiction); the legal authority for, and substantive limits on, non-Article III courts; military tribunals and the war on terrorism; the jurisdictional interplay between state and federal courts; the complicated and somewhat convoluted field of “federal common law”; the availability of (and scope of sovereign and official immunity from) suits challenging state and federal official action; judge-made doctrines based on federalism and principles of comity that otherwise limit the exercise of federal jurisdiction; and the procedural minefield that is federal habeas corpus for state prisoners.

Whereas our study of each issue is, in many ways, primarily interested in the history and structure of the federal judicial system, these topics necessarily include within their sweep fundamental questions about the proper horizontal separation of powers between the political branches and the judiciary, the proper vertical separation of powers between federal and state courts, and the structural and individualized constitutional issues raised by any of the relevant actors’ attempts to alter the historical balance.

Textbooks and Other Materials

The textbook information on this page was provided by the instructor. Students should use this information when considering purchases from the AU Campus Store or other vendors. Students may check to determine if books are currently available for purchase online.

Richard H. Fallon Jr., et al., Hart & Wechsler's The Federal Courts and the Federal System (6th ed. 2009), and 2014 Supplement thereto. Other readings to be provided via MyWCL.

First Class Readings

The assignment for the first class is to read the Fourth Circuit's decision in al Shimari v. CACI Int'l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc), and come ready to discuss the following five questions: Spend some time sorting through the plaintiffs' claims in this case. Under what body of law do the plaintiffs' claims arise? Why is this lawsuit in federal court? Why is the liability of federal military contractors for conduct undertaken as part of a federal military operation left to the vagaries of state law? The actual question the en banc majority resolves in al Shimari is whether the Court of Appeals has "interlocutory" appellate jurisdiction. What does that mean? What is the defendants' argument for why there is jurisdiction? What's the plaintiffs' argument for why there isn't? Which side does the en banc majority side with, and why? Why is the distinction between "preemption" and "immunity" so important to the scope of the Fourth Circuit's appellate jurisdiction? Should it be? Judge Wilkinson's dissent focuses on his view that "tort law doesn't belong on the battlefield," and so the federal courts have an obligation not only to displace state (and foreign) tort law, but to entertain interlocutory appeals when district courts refuse to do so. Whether or not you agree with Judge Wilkinson's view, does that justify the two different exercises of judicial lawmaking for which he argues--first to exercise jurisdiction when none has been provided, and then to displace state and foreign tort law notwithstanding the absence of federal law on point? How does Judge Wilkinson--who is one of the most celebrated adherents to "judicial restraint"--justify such "activism"? In addition to disagreeing with the en banc majority's jurisdictional analysis, Judge Niemeyer's dissent argues (toward the very end) that the plaintiffs' claims present a non-justiciable "political question." Why does he so argue? Do you agree that the federal courts should stay their hand in suits that implicate battlefield determinations such as "whom to interrogate, what to inquire about, and the techniques to use"? Finally, take a step back and think about the very different views of the role of federal courts to be found in the various opinions in al Shimari. The fundamental question we aim to ask this semester is "why federal courts?" How do you suppose each of the judges in this case would answer that question? How would you, at least here?


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