Federal Courts
Professor Howard Wasserman Fall 2017
Office: RDB 2065 RDB 2007
Phone: 348-7482 Monday/Wednesday, 10:45 a.m.-Noon
e-mail:
Special Scheduling Notes:
• No class on Monday, September 4 (Labor Day)
Office Hours: Monday-Thursday, 1:30-2:45 p.m.
Tuesday, Thursday, 10:30 a.m.-Noon
Whenever I am in my office
Post questions about class discussions, course materials, etc., to the Blog
Course Outline:
This course examines the role and powers of the federal courts in the legal and constitutional order in the United States. We examine the jurisdiction of the United States Supreme Court and the “inferior” federal courts and the legal rules and doctrines that expand or narrow that jurisdiction. We also examine the interactions and relations between the federal judiciary and other legal and political actors, such as the federal legislative and executive departments, the state courts, and the state legislatures. This course will mix doctrine, policy, and theory to try to make legal and logical sense of the rules that govern the federal judiciary.
This course is essential for anyone interested in any and all substantive areas that involve litigation and dispute resolution in federal court--this includes intellectual property, securities regulation, labor, employment discrimination, constitutional and civil rights, and transnational business.
The material is organized to follow the ebb and flow of federal judicial authority. We begin with the jurisdiction of the United States Supreme Court, both original and appellate, then the original and appellate jurisdiction of the federal district courts and federal circuit courts of appeals. Having considered what federal courts are empowered to do, we then examine the limits on that power. First are judicially created limits on federal jurisdiction, such as Eleventh Amendment sovereign immunity, justiciability limits, and abstention doctrines. Second is the power of the other branches of the federal government to control and limit the jurisdiction of the federal courts and federal judges. Finally, time permitting, we will discuss the effects on the federal judiciary of the tactics and efforts related to the War on Terror.
This is a reading-intensive course. At this stage in your academic career, you all have the intellectual tools to manage the work because you know how to read and grasp legal materials. This also is among the most intellectually rich and engaging subjects in the law school curriculum; I expect the material to create high-level and intensive class discussions.
Required Course Materials:
1) Erwin Chemerinsky, Federal Jurisdiction (7th ed. 2016) (“Chemerinsky”)
Appendix A: The Constitution
Appendix B: Selected Statutes
2) James E. Pfander, Principles of Federal Jurisdiction (3d ed. 2016) (“Pfander”)
Appendix: Selected Constitutional and Statutory Provisions
3) Federal Courts Blog: http://fiufedcourts.blogspot.com/ (indicated in syllabus)
Federal Courts Blog:
To read the FIU Fed Courts Blog, go to http://fiufedcourts.blogspot.com/; posts can be read going down from most recent to least recent.
Everyone must register as an author and a reader. To register as an author, please send an e-mail to me (). In the subject line, please type “Fed Courts Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. Follow the steps in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register as soon as you receive the “Invitation” e-mail. Once you are registered, you can post by going to www.blogger.com, logging in, and following the prompts to the Fed Courts blog.
The blog serves several purposes. First is to make available the Syllabus and additional reading assignments, to be downloaded and read. I strongly recommend that you print out copies of these documents and bring them to class. Second, all classes will be audio-recorded and the MP3 file will be posted to the blog. Those of you who are worried about being able to catch everything said in class can go back and listen to the class again and fill-in any gaps.
Third, this is how I will communicate with you about assignments, materials, additional questions, and what you should be thinking about and preparing for the next class. I often post ideas and thoughts clarifying and expanding on class discussions and the course materials that we just covered, including answering in-class questions that we were not able to cover fully in class. I always do an after-class post that will post the audio file, identify assignments for the next class, and offer questions or ideas you should be prepared to discuss in the next class.
Fourth, and most importantly, the blog is a forum for an ongoing conversation about the law of Federal Courts and Jurisdiction. The blog is intended to carry class discussions and conversations on the material outside the classroom, to enhance discussions outside the limits of a 75-minute class session. This forum enables us to examine and discuss how these issues arise in real-world stories, cases, occurrences, events, as well as in the books you read and the TV shows and movies you watch. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work. You are going to be doing this every day as a practicing lawyer, why not start now.
This discussion will take the form of original posts by class members and me (I frequently will pose questions to be answered and discussed in this forum rather than class). Do not use the Comments section of a post; begin a new post with a new title. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; responses to other posts; responses to Commentaries posted to the blog (see below); questions about the material (I strongly encourage using this forum to discuss questions and concerns that arise in class); and discussion and analysis of news stories, cases, articles, books, movies, and television shows, current events, and anything else relating to the law of civil rights and the substance of this class. Notice that the blog includes a "Blogroll" listing a number of blogs that provide news and information about new cases and legal developments on civil rights law; these are good places to check out every few days to see what is happening relevant to our discussions.
This on-line discussion will take the form of original posts by class members and by me. I frequently will pose questions to be answered and discussed in this forum rather than class. Do not use the Comments section of a post; begin a new post with a new title. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; responses to Commentaries posted to the blog (see below); questions about the material (I strongly encourage using this forum to discuss questions, concerns, or confusion that you come up with after class or after doing the reading); and discussion and analysis of news stories, books, movies, and television shows (“Hey, standing came up on ‘The Killing’ last night!”), current events, and anything else relating to the law of federal courts and jurisdiction and the substance of this class. You also can use a new post to respond to posts by me or by fellow students.
All of this is by way of saying that you should get in the habit of checking the blog at least once or twice during the day.
There are no guidelines about length, content, or style, other than to insist that it be relevant to this class, that it be respectful, and that it be somewhat thought-out and well-written. Humor is great. Also, if the post is substantive, it ordinarily should contain some original thought or commentary. In other words, please do not simply cut-and-paste long portions of a case or article into the post; provide a link or cite to it and provide very brief synopsis or summary, along with your own thoughts or comments on it.
Please put your full name on the post. You may post as much or as little as you wish to the Blog.
The site contains a “Blogroll,” with links to a number of web sites and blogs that report on and discuss new legal developments, cases, and issues relevant to the class. You should get in the habit of reading some of these and similar sites. They may offer some cases or events to write about.
Course Evaluation:
Grades will be based on multiple components. Details on each are provided separately.
1) Opinion: 50 points
Due at the beginning of the final day of class, Monday, November 19. See Course Evaluation information on Blog for details.
2) Oral Arguments: 25 points
Held on Wednesday, December 13, 2017. Everyone will argue one case and sit as a Supreme Court Justice on one case. See Course Evaluation information on Blog for details.
3) Commentary: 30 points total (15 points each)
Two (2) short commentaries. See below and Course Evaluation information Sheet on Blog for details. These commentaries will be posted to the Blog (anonymously) and are fair game for posts responding and commenting.
4) Class Participation: 15 points
Class discussion will combine panels and volunteers.
A panel of 3-4 students will be “on call” for each topic on the syllabus (number of students on the panel depends on final enrollment). Panelists will be the first ones called on during class discussions and will be expected to help lead the conversation, which obviously entails a high level of preparation of the cases and problems assigned on that material. Everyone likely will be on call four times during the semester (again, this may change with enrollment). Panels will be assigned by the second day of class on Wednesday, August 16.
In addition, the two commentaries (see above and document on Blog for details) will be written on the subjects on which you were a panelist.
College of Law Academic Policies and Regulations
This class is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in line with those policies and regulations.
Technology and Class Conduct
Use of laptops, tablets, book readers, smart phones, and similar devices during class is prohibited.
Phones must be turned off when you come into the classroom.
You must be in class on time, unless I have previously given you permission to come late. You may not enter the room once class has begun, unless I have given you permission to come late. Once class has begun, you must remain in your seat, unless I have given you permission to leave during class. Exceptions to these policies for medical or similar reasons will be made upon presentation of appropriate documentation.
For those of you who prefer having (or being able to obtain) more precise notes, all classes will be audio-recorded and the audio file for each class session will be posted on the Fed Courts Blog. You are welcome and encouraged to review the recording and supplement your notes. This is, in fact, comparable to what you will experience in practice. You will go through a day of trial or deposition working with your own brief notes and your participation in events, then receive a transcript a day or two later.
Class Assignments:
I am trying something different this semester, by working without a casebook. Instead, we will look at two treatises on federal jurisdiction, which discuss the cases and organize, explain, and synthesize the materials. Chemerinsky is the more-detailed book, will form the focus of most of our discussion, and should be the main focus of your reading; Pfander offers a supplementary overview. There is a trade-off: You will have more total pages of reading on a given topic, but the reading will be somewhat more straightforward than parsing cases yourself. Nevertheless, you must read the material closely enough that you understand it well enough to talk about it in class. This includes being familiar with what key cases are about.
The cases listed in each section are the ones we will focus on in class discussions, so you should spend extra time with the treatise discussions. You also should understand the rules, standards, and ideas on a broad level.
Unless otherwise indicated, constitutional provisions can be found in Appendix A of Chemerinsky (which includes the full Constitution) and statutory provisions can be found in Appendix B of Chemerinsky. Other provisions are in the Appendix of Pfander or should be downloaded from the Blog, as indicated. Please bring all assigned constitutional and statutory provisions with you in class.
We will read a few newer cases, also available for download from the Blog.
Assignments and materials noted with Blog are available to be downloaded from the Blog under “Course Materials.”
Introduction: Federal Courts and Constitutional Structure
Provisions:
U.S. Const. art. III
U.S. Const. art. I, §§ 8, 9
U.S. Const. art. VI, cl.2-3
U.S. Const. amends. X, XI, XIII, XIV, XV
Theme: History and Constitutional Foundations Chemerinsky, 1-37
Pfander, 1-26
Cases:
Marbury v. Madison
Commentary:
The Federalist No. 78 (Blog)