A summons
SYLLABUS - REMEDIES - SPRING 2021
Senior Fellow, Stein Center for Law & Ethics
gconk@law.fordham.edu
LIVE Via ZOOM
[all classes are recorded - but live Zoom sessions must be attended to satisfy ABA good and regular attendance requirements]
VIA ZOOM [no class February 15 and March 10]
ZOOM CLASS MEETING ID: https://fordham.zoom.us/j/93249200772
Passcode: remedies
All page references are to:
Weaver, et al. Remedies - A Contemporary Approach
Fifth Edition (West Academic Interactive casebook series)
ISBN: 978-1-68467-575-3
Learning objectives (Dropbox)
There are two pages on my blog Torts Today dealing with course requirements.
The first is Policies - which has the grading options (take-home exam, term paper, UCWR), etc.
You can access the ebook version of the casebook via West Academic.
Much of the material will be accessed as links on the TortsToday blog or in email from me.
The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. Oliver Wendell Holmes, Jr. The Common Law (1881)
Week 1
What do presidents do?
Article II, Section 1
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Article II, Section 3:
...he shall take Care that the Laws be faithfully executed..
Addresses- Biden, Lincoln, Obama, Trump Blogpost
What lessons do you draw from today's inaugural address? From the Gettysburg and other Presidential addresses?
SLIDES: Inaugurals
What do Judges Do?
* Slides - Judges, part 1, Spring 2021
"The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding....We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it..., not even Mr. Herbert Spencer’s Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."Oliver Wendell Holmes, Jr. - The Path of the Law (1897)
Read blogpost: Life and death - complicity and conscience
John Roberts has said that there are no Republican judges or Democratic judges, just judges.
The Vicious Entrenchment Cycle: Thoughts on a Lifetime with a Republican-Controlled Court By Marty Lederman [Georgetown] Balkinization - October 6, 2018
Week 2
A vaccine mandate?
As the virus surges, and hospitals in some places are exhausted.
When and how should the law's
commands be invoked? Should covid 19 vaccines be mandatory? For everyone?
For the elderly? For `essential workers'? Until `herd immunity' is
achieved? For healthcare workers? Should it be a state by
state option?
Jacobson v. Massachusetts , 197 U.S. 11 (1905)
How New York City Vaccinated 6.3 million in less than a month in 1947
Red States and Covid Vaccination Mandates - Michael Duff Workers Compensation Law Prof Blog
Michelle Mello proposes that
mandates should be considered. She offers 6 factors: 1) need - if social distancing and masks
are insufficient, 2) identification of highest risk groups (see, e.g. CDC), 3)
Adequate supply, 4) transparency re risk and benefit, 5) compensation and care
for any adverse reactions, 6) slow uptake by the public has made the campaign
unsuccessful.
Michelle Mello: Ensuring Uptake of Vaccines for Sars Cov 2 (New England Journal of Medicine)
Pope Francis: Corona virus vaccines should be available to everyone. National Public Radio
Do you agree with Pope Francis? Why? Does the United States have a responsibility to use its production capacity to supply vaccines to poor countries? At whose expense?
What is the source of the right to vote? When can it be taken away? Does the fact that African Americans and Latin Americans have higher rates of conviction of crimes or poverty than others make restrictions on voting rights a denial of equal protection of the laws? Should inability to pay a fine support a denial of the right to vote? Are "civic rights" such as the right to vote or serve on a jury entitled to less protection than "individual rights"?
Read blog post: Jones v. DeSantis (United States Court of Appeals for the 11th Circuit) Atlanta: 11th Circuit en banc upholds financial restrictions on voting by former felons
See Also:
In Kanter v. Barr: 919 F. 3d 437 (7th Circuit 2019) the Court of Appeals faced two statutes - one federal, one state, which barred convicted felons from owning a gun. Kanter pleaded guilty to Medicare fraud and agreed to repay the United States $25 million in restitution. He was barred by statute from owning a gun. The majority found that Congress had repealed the right of felons to apply to the Bureau of Alcohol, tobacco, and firearms for individual exemptions. Kanter, backed by gun rights organizations, asserted that the Supreme Court had, in the 2008 Heller v. District of Columbia cases established that the right to bear arms is a personal right rooted in the Second Amendment. As a non-violent felon neither the state nor the national government could bar him from possession of firearms.
The majority concluded that one convicted of a non-violent financial crime may, as a felon, be barred by a state from possessing a gun. Evidence showed that non-violent felons are more likely to engage in violence than those who have not committed serious crimes. The two judge majority wrote:
"In sum, the government has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away those convicted of serious crimes. Because Kanter was convicted of a serious federal felony for [Medicare fraud] conduct broadly understood to be criminal, his challenge to the constitutionality of § 922(g)(1) is without merit."
But then Circuit Judge [now Supreme Court Justice] Amy Coney Barrett dissented in Kanter:
[T]he parties [the U.S.A. and Wisconsin have not] introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward—legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. " (emphasis added)
"As I explain below, none of these rationales supports the proposition that the legislature can permanently deprive felons of the right to possess arms simply because of their status as felons. The historical evidence does, however, support a different proposition: that the legislature may disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety. This is a category simultaneously broader and narrower than "felons"—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness."
Who has the better of the argument - the majority or Judge Barrett?
Do you agree that "civic rights" such as the right to vote or serve on a jury are entitled to less protection than an "individual right" such as the right to own a gun?
Lecture: Judicial review and the Administrative Procedure Act
Overview of Equitable Remedies
Historical background, equity in the U.S., Equitable remedies today: Standards - conscience, in personam, inadequacy of remedy at law/irreparable harm, discretionary nature of equitable relief
Read:
Federal Arbitration Act (FAA)
Commercial Arbitration Rules and Mediation Procedures - American Arbitration Association
Uniform Arbitration Act- National Conference of Commissioners of Uniform State Laws
California Assembly Bill 5 - Worker status and independent contractors
The Duty to Obey and the Collateral Bar Rule
SLIDES - Contempt of court and the collateral bar rule
Background documents:
Blogpost: SCOTUS has changed settled law on stays
pages 283-328
A First Black Professor Remembers her Segregated Education - NPR (6 minutes)
Lecture - Busing - Swann v. Charlotte Mecklenberg
Detroit - Desegregation stops at the city limits
-Francis Howell Schools - St. Louis County, Missouri - Read article AND Listen to the two audio excerpts linked in the article - the first by a white parent, the second by a Black woman graduate of integrated schools.
U.S. v. Jefferson County (1967)
* en banc majority opinion and decree - When courts and President aligned
Recorded class: November 24, 2020 Structural Injunctions - School integration from Brown to Detroit - 1954 - 1974
SLIDES BP class action under the Oil Pollution Act
George W. Conk - Diving into the Wreck - BP and Kenneth Feinberg's Gulf Coast Gambit - 17 Roger Williams University Law Review 137 (2012) ABSTRACT
Reference Guide on Estimation of Economic Damages
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