REMEDIES - FALL 2022 - PROF. GEORGE W. CONK - FORDHAM LAW SCHOOL
Office: 7-179 gconk@fordham.edu
Tuesday-Thursday 2:00 - 3:25 PM Eastern
Room 4-09
SYLLABUS - OUTLINE - UPDATED October 15, 2022
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain, the King himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.
"In all other cases," he says, "it is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts of common law. And herein I shall for the present only remark that all possible injuries whatsoever that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals are, for that very reason, within the cognizance of the common law courts of justice, for it is a settled and invariable principle in the laws of England that every right, when withheld, must have a remedy, and every injury its proper redress."
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.- John Marshall, in Marbury v. James Madison, Secretary of State, 5 US 137 (1803)
Week 1 – How Judges decide: Precedent, Equity,
and the Common law; the Common Good and the public interest.
Opening lecture: What constrains judges? Law, Equity, natural law, and the problem of slavery from the founding to the Civil War.
Read:
Somerset v. Stewart (1772) Speech of Lord Mansfield at p. 510
Gouverneur Morris re slavery at Federal Convention 1787
Benjamin Cardozo The Nature of the Judicial Process - Adherence to Precedent Lecture IV Excerpts from Cardozo Lecture IV
Prigg v. Pennsylvania [1842] (case brief)
Blogpost: My response to Prof. Helmholz's First Things review of Vermeule's Common Good Constitutionalism
slides: Magna Carta to Emancipation
Week 1, class 2
An Imperial Supreme Court Asserts its Power - Adam LIptak, NY times 12/19/2022
The Imperial Supreme Court - by Mark A. Lemley (Stanford)
The Major Questions Doctrine - Congressional Research Service
Westfall Act - [1988] Immunity from suit for Federal Employees
Bivens v. Six Unknown Federal Narcotics Agents, 403 US 388 (1971)
Egbert v. Boule, Supreme Court (2022)
John Marshall Harlan concurring in Bivens:
...while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy [damages] would be available for the most flagrantly unjustified sort of police misconduct. It is important that in civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy in these circumstances.
What factors led the Warren Court to embrace a right of direct action against `federal' government agents? Why does the court majority today resist that remedy?
Background:
Prof. Jennifer L. Mascott, Antonin Scalia School of Law - amicus brief in support of defendant
Brief of Amicus Curiae Institute for Justice (for plaintiff)
Deep Background:
[Full text] Cardozo Adherence to Precedent Lecture 4 (excerpted above)
Harry Blackmun: Section 1983 and Federal Protection of Individual Rights (NYU L Rev. 1985)
Week 2
Dobbs v. Jackson Women's Health (2022)
Read:
Syllabus of the Clerk (summarizing Alito Opinion)
Clarence Thomas, concurring
Stephen Breyer, dissenting
Roberts, concurring
Adrian Vermeule, a conservative critic of "originalism" says in his book Common Good Constitutionalism that courts making constitutional decisions are managing political risks. Rather than a "precautionary" approach to minimize risk, Judges should should seek to advance the common good, which he defines as "“not the sum of individual goods, but the indivisible good of a community ordered to justice, belonging jointly to all and severally to each”. Judges therefore should and must be guided in their judgments by “justice, peace, and abundance” as the “legitimate ends of government”."
By Vermeule's measure which of the judges in Dobbs v. Jackson Women's Health, in your view, best advances the common good? Why?
Judiciousness is a virtue long recognized. By that measure how do you gage the Dobbs majority opinion vs. the 1973 majority opinion by Justice Blackmun in Roe v. Wade?
Eric Segall argues that the Supreme Court is not a court because it follows its own policy preferences, not the law. He develops this in this blogpost: Dobbs, Footnote 48, Precedent, and Why the Court is not a court.
Is his argument persuasive? Why or why not? How should judges behave in the face of law they personally oppose?
DEEP BACKGOUND
Siegel, Reva B., Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance (August 9, 2022). Texas Law Review, Forthcoming, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4179622
Strict Scrutiny Podcast (Melissa Murray, Leah Litman, and Kate Shaw hosts)
What the fight after Dobbs Actually Looks Like (1:29)
Week 3
The Administrative State Under Siege
SLIDES - Administrative procedure Act and agency judicial review
The Major Questions Doctrine - a guided missile aimed at the heart of the administrative state?
Fold 'em? Jed Shugerman on the student loan forgiveness plan -The Atlantic and blogpost
The Administrative Procedure Act
City of Arlington v. FCC, 569 US 290 (2013)
Kisor v. Willkie, Secretary of Veterans Administration Supreme Court(2019)
Blogpost: The New Deal Order at Risk - George Conk, December 2020
The Federal Eviction Moratorium Case
Eviction Moratoriums Save Lives - GWC
Blogpost and link The least competent branch: Scotus blocks life-saving fed eviction moratorium in Alabama Case - GWC
Deep Background:
Podcast: Supreme Myths - Segall and Mortenson on the eviction moratorium and the non-delegation doctrine.
The 2016 Term: 1930s Redux: The Administrative State Under Siege [Gillian Metzger, 131 Harv. L Rev 1 (2017)
Julian Davis Mortenson and Nicholas Bagley: Delegation at the Founding, Columbia Law Review
Contempt, Sanctions, Enforcement -
SLIDES - Introduction to contempt
Civil v. Criminal Contempt
U.S. v. Professional Air Traffic Controllers, p. 111
n How do civil and criminal fines differ? What are the consequences of the fine being characterized as criminal rather than civil?
What makes the $5,000 fine imposed impermissible?
Yates v. U.S., p. 114
See slide # 7 for discussion questions
Ch. 3 The duty to obey: collateral challenges
SLIDES - The Duty to Obey and the Collateral Bar Rule
Read casebook: pages 162-187
You may read the excerpts in the casebook or the full texts:
U.S. v. United Mine Workers, 330 U.S. 358 (1947)
Walker v. Birmingham, 388 U.S. 307 (1967)
U.S.v. UMWA, p. 163
n How does the majority reach the conclusion that the Norris LaGuardia Act does not apply?
n Should the District Court have stayed its order pending resolution of a “substantial” challenge to its jurisdiction?
n What justifies the injunction and contempt order despite “substantial doubt” about its jurisdiction?
See discussion questions at slide 38
Background/ Context:
NPR 50 years after Letter from a Birmingham Jail
John L. Lewis - testimony before Congress on the Centralia mine disaster during the time of government seizure of the mines.
Nina Simone - Mississippi goddamn
Alabama 1963 - TV news report
Historical deep background:
In Selma - the movie - King is just one of many heroes
Rev. M.L. King, Jr., Letter from a Birmingham Jail (1963)
A Call for Unity by Birmingham Clergymen
An appeal for law and order and common sense (1963)
SLIDES Ch. 4 Injunctions part 1
SLIDES Ch. 4. Injunctions part 2
Weeks 7 & 8 October 20, 25, 27
Structural Injunctions - the origins and legacy of Brown v. Board of Education
A First Black Professor Remembers her Segregated Education - NPR (6 minutes)
Brown II 349 U.S. 294 (1955)
U.S. v. Jefferson County (1967)
* en banc majority opinion and decree -
*Judge Griffin Bell's dissent
Busing - Charlotte, North Carolina
SLIDES
-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.
General
principles, defenses, measuring the enrichment,
SLIDES - Ch. 5
- part 1
SLIDES - Ch. 5 - PART 2 Special Restitutionary
Remedies
pages 443-471
Hypos Mitigating Losses, and The Drifting Boat Rescue, p. 453
Read:
page 474-515
Read: 520-530
Constructive trusts, equitable liens, priority over other creditors,
circumventing debtor exemptions, subrogation
The Enforcement Action
SEC Civil Securities Fraud Enforcement
Administrative Law Judges and the scope of Congressional powers.
Read Blogposts:
5th Circuit lets stand Jarkesy v. SEC
Linda C. Thomsen - An Overview of Enforcement (2005)
Section 17A - Securities Act of 1933 - Fraudulent Interstate Transactions
Section 20(b) - Injunctions and prosecutions of offenses
Dodd Frank Act 929P(a)(2) [right to impose penalties after notice and opportunity to be heard)
Securities Fraud Deterrence and Investor Restitution Act (proposed)
Pamela Samuelson Disgorgement of Infringer Profits as an Equitable Remedy//PatentlyO
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