Syllabus Remedies Spring 2024

 Benjamin Cardozo in The Nature of the Judicial Process :

A judge “legislates only between gaps. He fills the open spaces in the law. . . [R]estrictions . . . are established by the traditions of the centuries, by the example of other judges, his predecessors, and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law.”

Article III, Constitution of the United States

Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Remedies: Spring 2024 – Outline   1/11/24

Prof. George conk 

gconk@fordham.edu 

Office: Room 8-108

 Tuesdays and Thursdays 2 :00 – 3:25

Classroom #4-09

 Required casebook

 Weaver, et al.  Remedies -   A Contemporary Approach
Fifth  Edition (West Academic Interactive casebook series)   
 ISBN:  978-1-68467-575-3

Course Blogs: Torts Today  and Otherwise


 Office hours by appointment on the hour and half hour.  Please make appointments by email.

This is a TERM PAPER or WRITING REQUIREMENT COURSE

There is NO Exam Option

Attendance is required.  ABA regulations provide I must certify good and regular attendance to submit a passing grade.  If you are unable to attend class please drop me a note with brief explanation before class.

 

 

Week 1 – Thursday January 18

The Law Courts and the Chancery Courts –  

 

How  should Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.

Arc of Justice? Magna Carta to 1868.

Justice vs. Positive Law

 Somerset’s case – speech of Lord  Mansfield at 510

Fugitive Slave Clause – 1789

Prigg v. Pennsylvania, 41 U.S. 539 (1842)

13th Amendment

Slides – magna carta to Emancipation in the U.S.

Resource page – Slavery, Natural law, and positive law

 

 

 

Weeks 2 and 3 The Administrative State Under Siege?

January 23 to February 1

Tuesday January 23



Lecture: Deadly Dust - the struggle for the creation of the Occupational Safety and Health Administration

SLIDES - Remedies and Constraints

Read:

Congressional Research Service Judicial review under the Administrative Procedure Act

Administrative Procedure Act 5 USC 552, et seq. Review - particularly the highlighted sections

FAQ - Office of Information and Regulation Affairs - Office of Management and Budget

Linda Greenhouse - An Unhealthy Definition of Rights - NY RB  December 21 2023

NFIB v. OSHA - January 2022 - granting stay of vaccinate or test Emergency Temporary Standard

Thursday January 25 - 

 The Administrative State Under Pressure - and a Defense

 The Deference Dilemma - Who is the Leviathan? The Courts or the Executive?

SLIDES APA Review of Agency Actions

Slides - Major Questions Doctrine

Congressional Research Service: Major Questions Doctrine’

CRS Update: May 2022 - Major Questions Doctrine

Two views of the major questions doctrine - Cass Sunstein

Beau Baumann: Let's Talk about that Barrett Concurrence

Resources:

Judicial Review under the Administrative Procedure Act

  The Major Questions Quartet - Mila Sohoni - Harvard Law Review 

The " Quartet" is these cases:

[ Alabama Association of Realtors v.DHHS,  NFIB v. Department of Labor, Biden v. Missouri,  West Virginia v.Environmental Protection Agency]

Kisor v. Wilkie, 139 S. Ct. 2400  (2019)[Gorsuch concurring]


Tuesday - January 30 

Slides - Major Questions Doctrine 

Gorsuch dissent - Gundy v. United States (2018)

Kill the Leviathan - The New Deal at risk - blogpost by Conk, introducing Sara Posner

Yale Journal on Regulation - Symposium on Sunstein and Vermeule - Law & Leviathan


Thursday February 1 


Chevron - the end of deference?

Loper Bright Enterprises v. Raimondo

Supreme Court Docket # 22-451

Issue: Whether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

SLIDES - Loper Bright v. Raimondo

The Mortal Sea -  by Jeffrey Bolster - Winner of the Bancroft Prize

review by GWC 

Petition for Certiorari

Brief of Respondents Gina Raimondo, Secretary of Commerce

Reply brief for petitioners

Professor Thomas Merrill - amicus brief in support of neither party

Amicus Brief -Natural Resources Defense Council - in support of respondents

AFL-CIO - Amicus Brief


Senator Ted Cruz, Speaker Mike Johnson and 34 other M.C.'s in support of petitioners - Amicus Brief

Senator Sheldon Whitehouse, et alii  amicus brief in support of Respondents

Administrative Law Scholars amicus brief in support of respondents

Amy Howe - Supreme Court Likely to Discard Chevron (Scotus blog)

In defense of Chevron - Professors Walker and Barnett - Amicus Brief

Loper Bright - District Court Opinion 544 F Supp 3d 82

Freeman and Morgan Will the Supreme Court Show a Little Humility?French: Overturning Chevron will Rebalance the Constitutional Order


Week 4  February 6 and  8



The 14th Amendment Section 3 Disqualification Cases - May Donald Trump lawfully serve as President of the United States

Lawfare Trump Disqualification Tracker

Anderson v. Griswold 2023 CO 63

SLIDES - Anderson v. Griswold

Petition for Certiorari of Donald J. Trump

Trump v. Anderson – 23-719  – Supreme Court of the United States

Certiorari before judgment granted.


Brief on the merits of Respondent Norma Anderson

Trump Reply Brief

Does the 14th Amendment, Sec. 3 disqualify Donald J. Trump from holding the office of the president?

Who decides what is an insurrection?

Is the President an Officer of the United States? Is Section 4 self-executing? [see historians brief] Scalia said YES - amicus brief of Akhil Reed Amar

Amicus brief of former Circuit Judge J. Michael Luttig, and others

Amicus brief of three former Republican Governors in support of respondents

Amicus Brief of Sherrilyn Ifill

Amicus brief of NAACP Legal Defense Fund

Amicus brief of Floyd Abrams, et al.

Amicus brief of former Republican Members of Congress

Amicus brief of Capitol Police Officers

Is a primary different from the general election?

Should the voters decide? Or does the Constitution bar his candidacy?

Is prudence part of jurisprudence?

Even if the Constitution’s terms disqualify Trump, should the Supreme Court step aside?

 

LISTEN  to oral argument before the Supreme Court on morning of Thursday, February 8. [links at Supreme Court of the United States or at Scotusblog.com.



 Week 5  The New Abortion Battleground-  

From the Dobbs Syllabus: 

The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives. 

After the death of Roe v. Wade - Did the Supreme Court really return the issue to the states?

Alabama abortion law threatens NJ - editorial, NJ Law Journal

What interests does the State of New Jersey have that could lead it to intervene in the Alabama case?

Amy Howe - Court schedules abortion pill case for March argument

The Mifepristone cases in the Supreme Court -FDA v. Alliance for Hippocratic Medicine - No. 23-235 and Danco Laboratories v. Alliance for Hippocratic Medicine - No. 23-236

Questions 

Do the physician members of Alliance have standing? On what basis?

SLIDES - Mifepristone - Alliance for Hippocratic Medicine

Blogpost - Comments by me on the Comstock Act and Tsai and Ziegler Abortion Politics and the Rise of Movement Jurists

Alliance for Hippocratic Medicine v. FDA (and intervenor manufacturers. ) District Court opinion  See pages 1-13

SAGE publications retracts studies as methodologically flawed, New York Times Reports.  What steps should the FDA and manufacturer Danco take now?

Will mailing Mifepristone by barred under The Comstock Act? 18 U.S.C. 1461, 1462 Mailing obscene or crime-inciting matter

SLIDES - The Comstock Act

Department of Justice - Office of Legal Counsel:Memo to US Postal Service re mailing of drugs usable for abortion December 2022

 Natural Administrative Law - The Comstock Act and Abortion Drugs - Vermeule and Casey

  Background

Dobbs v. Jackson Women's Health 19-1392 [2022].  

Dobbs and Democracy, Melissa Murray and Kate Shaw - Harvard Law Review, January 2024

 

Week 6  TUESDAY February 20 ONLY!

Chapter 2 Equity and Equitable Remedies [casebook]

Slides – Introduction to Equity

Slides – Equitable Defenses

READ: Casebook, 

Chapter 2 Equity and Equitable Remedies

pages 9-36

 

Week 7 February 27-29

Equitable defenses - see slides, above

Restitution and Unjust Enrichment

Restatement of the Law - Restitution and Unjust Enrichment - selected sections

Slides: Restitution, Part 1

Read Chapter 5 – Weaver, et al. casebook

 General principles, defenses, measuring the enrichment, Special Restitutionary Remedies – Constructive trusts, equitable liens, subrogation, and statutory liens


Tuesday -Casebook - 

Beacon Homes, St. Mary's Med Ctr, Frambach, Pyeatte, Iacomini

Thursday

SLIDES Restitution, Part 2

Sieger, Leyden; Wilson v Todd, Executive summary

Week 8

Does anyone alive today bear responsibility for the consequences of slavery and   de jure racial discrimination?

 The Legacy of Slavery and   legal discrimination

In plurimis – Letter to Bishops of Brazil, Leo XIII, 1888 re abolition of slavery

Reconciliation and Repair

SLIDES - Reconciliation, Reparations, Restitution

SLIDES - Can the Classical legal tradition overcome the legacy of Christian acquiescence in slavery?

 Interview with Christopher Kellerman, S.J. re slavery and the Catholic Church: Kellerman It’s time to correct the historical record | America Magazine

 Racial segregation in the U.S. Suburbs – blogpost

The California Reparations Report

Watch recorded  Webinar: part II:  All Oppression Shall Cease: A History of Slavery, Abolitionism, and the Catholic Church by Christopher J. Kellerman, S.J. (Orbis Books, 2022).  Moderator: George W. Conk

Panel: Welcome: Dean Matthew Diller

Introduction: Tania Tetlow, President, Fordham University

Discussants: Fr. Kellerman

Vincent Rougeau [President, Holy Cross College; past President Association of American Law Schools]

Maureen O’Connell [LaSalle University Theology Department and author of Undoing the Knots -  Five Generations of American Catholic Anti-Blackness]

 

Week 8  Chapter 3

Enforcement of Equitable Remedies: Civil and criminal contempt of court; jury trial, procedural requirements, collateral challenges to injunctions

Read: casebook 103-116;  129-137; 140-141

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?

 Yates v. U.S., p. 114

 Deep background

Executive Branch Contempt - Chafetz, 76 U Chi L Rev 1083 (2009) 

 

 

Week  9 

Chapter 4 -Injunctions and Declaratory Judgments; standards for issuance, Persons bound, Notice, Temporary Restraining Orders, Preliminary Injunctions, Bonds.

Slides - Injunctions part 1 


Read casebook: pages 162-187

 Thursday March 14

SLIDES - 1963

Slides - the collateral bar rule

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 **

A criminal defendant can assert the unconstitutionality of the law under which he/she is charged.
But one charged with criminal contempt cannot raise that defense in a criminal contempt proceeding.  He/she must obey the order, challenge the constitutionality of the the injunction in the court which issued the order - and appeal that denial.

Does the collateral bar rule protect people from abusive use of injunctions? 
Is it needed to preserve order?
Were Martin Luther King, and Rev. Wyatt T. Walker justly jailed for contempt of the Alabama court's injunction?  If not - why not?


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

 Watch M.L. King, Jr. on Meet the Press (1965) discussing civil disobedience 


Weeks  10 and 11 March 19-21, April 2, 4

 Structural injunctions, Public School Integration – rise and fall; Reparations; the Death of Affirmative Action?]

Read: Brown I [347 U.S. 483 ]   

Brown II, 349 U.S. 294]



SLIDES - The Founding to the Second Founding to American Apartheid

Thursday, March 21
*Brown v. Board of Education of Topeka Kansas - Brown II 349 U.S. 294 (1955)

SLIDES Introduction Integration, part 1
A decade after Brown = a stone wall
 SLIDES U.S. v. Jefferson County
Jefferson County - en banc decree
Griffin Bell - DISSENT in Jefferson County

 1961 - Executive Order 10925 - Affirmative action - John F. Kennedy
January 23, 1964 

July 2, 1964
Title IV  Desegregation of Public Education Civil Rights Act of 1964 - READ Section 401, et seq.
SLIDES Brown v. Board Part 2

Easter Recess - March 25 - 29

Week 2 -  April 2 and 4

From Brown v. Topeka (1954) through Charlotte (1972), Detroit (1974), and Seattle (2007)

How the government built white suburbs 

video: The Battle for Busing

SLIDES Swann v. Charlotte Mecklenberg

Swann v. Charlotte Mecklenberg

The resegregation of Charlotte

SLIDES - Detroit & Kansas City

Detroit: Bradley v. Milliken - District Court - excerpt

Rothstein Color of Law - Excerpt

Milliken - Syllabus by Clerk, SCOTUS

Milliken - Marshall dissent

Supreme Court: 

Thursday   April 4

SLIDES - Where are we now?

Justice David Souter - Constitutional interpretations, 2010

Seattle v. Parents Involved

SLIDES - Thomas vs. Breyer

Kozinski - 9th Circuit - concurring

Kennedy - Concurring

 Stevens dissent in Seattle

Stephen Breyer – dissent in Parents Involved v. Seattle

SLIDES - Seattle

 


 

Week 12  Ch. 6 Damage Remedies – General Principles

Read pages 531-591

SLIDES Ch. 4, part 1 - Compensatory damages, fraud

April 9 - 11

Instructing the jury
Torts - Remedies - TD 2- ALI - Black Letter Rules  
SLIDES - Cause in Fact - Proximate Cause
 Economic loss - Daniel Jones - death
Comparative Fault - NJ Model Civil Charge 7.31

California Civil Jury Instructions - Judicial /Council of California
Damages 3900, et seq.
Excerpted 3900-3933   Black Letter only

NJ Model Civil Jury Charges (Damages - Chapters 6,7,8)
Damages - General
8.10Damages — Effect of Instruction — Personal Injury Case Verdict SheetWordPDF
8.11AMedical Expenses (Non Auto)WordPDF
8.11BDuty To Mitigate Damages By Medical And Surgical TreatmentWordPDF
8.11CLoss of EarningsWordPDF

NY Pattern Jury Instructions (Damages - selected) PJI 2277 to 2320

Scope of liability/proximate cause - Restatement 3rd, NJ, NY


  

Week 13  – Mass tort remedies –April 16-18

MDLs – Personal injuries and product liability claims

Occupational disease and third-party asbestos product liability claims

Johnson & Johnson hip implant cases- the structured settlement grid

MASS TORT SETTLEMENTS

Mass Tort History - SLIDES

SLIDES - DePuy/ASR Hip Implant Settlement

SLIDES  Ground Zero worksite tort claims

BACKGROUND

Before Black Lung the Hawks Nest Tunnel Disaster Killed Hundreds - NPR, January 20, 2019 7 minutes

Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice , 69 Rutgers U. L. Rev. 1139 (2017)

BY George W. Conk

Alvin Hellerstein, D.J., Aaron Twerski, and James Henderson, MANAGERIAL JUDGING: THE 9/11 RESPONDERS' TORT LITIGATION  (2012)

 

John Fabian Witt: The Transformation of Work and the Law of Workplace Accidents 1842-1910, 107 Yale L.J. 1467 (1998)

Health trends among 9/11 Responders - 2011 - 2021 - Pre-hospital and Disaster Medicine - Cambridge University

Aggregate Settlements - SLIDES

 

 

Week 12 April 23 - 25

Environmental Disaster Class Actions – the BP Gulf of Mexico Oil spill

Restatement 3rd - Torts Economic loss -
Chapter 1 - Unintentional infliction of economic loss

 Environmental Disaster Class Actions for economic loss–the BP Gulf of Mexico Oil Spill

 

 

 

 

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