Remedies Syllabus - Fall 2020

Marbury, Mandamus, and Default Judgments - 600 Commerce
Remedies - Fall  2020   

 Prof. George Conk
Senior Fellow, Stein Center for Law & Ethics
gconk@law.fordham.edu 

 Tuesdays 6:00 - 8:50 PM
LIVE  Via ZOOM (and asynchronous)

TUESDAYS 6:00 - 9:00 PM

ZOOM MEETING id:  922 6078 0385

passcode is posted on Blackboard and in emailed invitation

[all classes are recorded - but live Zoom sessions must be attended to satisfy ABA good and regular attendance requirements]

Absences: advance notice via email required.

Recordings will be posted on Echo 360
Syllabus on this blog.  Links will be found on Blackboard.

Zoom office hours: Wednesdays 4:30 to 5:30   or by appointment
Meeting ID: 929 8417 9441
Passcode on Lawnet.
All page references are to:
Weaver, et al.  Remedies -  Cases, Practical Problems, and Exercises
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.  
The second is this syllabus page with the proposed schedule, reading assignments, etc.
Links will also be posted on Blackboard.

Powerpoint Slides are used in class.  I will provide a printed copy via email at the time of class.The slides are not a substitute for an outline.  They contain points I want to highlight, discussion questions, resources, etc.  

 Laptops: YES. You will need to bring a laptop or other device to access the electronic version of the casebook, slides, and other materials on the internet.
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 
Assigned reading is marked by: *
Introduction and welcome to Remedies and Equity - lecture to be recorded

Live via Zoom:  Tuesday September 1 - 6:00 - 7:50 PM EDT




*John Roberts - Baseball Umpire analogy VIDEO
*John Roberts on precedent in concurring opinion in
June Medical Services v. Louisiana (2020)

Compare Roberts and Cardozo (see excerpts from Lecture IV)
Should Roberts have been similarly candid in his confirmation hearings as was Cardozo about uncertainty?
Does Cardozo provide useful guidance to judges? to lawyers?
Is Cardozo naively optimistic about the path of the law?
Do we have reason for confidence in the law?
What is the proper role of precedent?
Why does Roberts adhere in June Medical Services to a four year old precedent from which he dissented?

Does Sonia Sotomayor in her *concurring opinion in Ramos v. Louisiana make proper use of the history of bias in jury selection to reject the 48 year old Apodaca v. Oregon precedent allowing  non-unanimous verdicts in non-capital cases?

Judging in the pandemic:

*For Judiciary partisan balance, look to New Jersey  Editorial - New Jersey Law Journal.   Party affiliations for the state's high court are 3-1-3.  The Chief Justice is a Democrat.  Is the unanimity in the bond case surprising? Would electing judges be a good idea?

Nelson Quinteros v. Attorney General of the U.S.A., 3rd Circuit, 945 F.3d 772, 788 (2019) - a Convention Against Torture case.
Read: *Concurring opinion of Judge McKee [joined by Ambro and Roth]
What can judges do when confronted by persistent defiance by an agency under review?


 
Week 2
slides -Administrative Procedure Act - Review of Agency Decisions
Lecture: Part 1 APA - Review of Agency Decisions (Zoom video recording) (ends at slide 25)
Lecture: Part 2 APA Review of Agency Decisions (Zoom video recording) (begins at slide 25)
slides: Seila Law v. CFPB (2020)
Trump v. Mazars: slides 

The distribution of powers - Executive, Congress, Courts

Read:  * Roberts Opinion of the court and Kagan dissent Seila Law, LLC v. Consumer Financial Protection Board

Can the House of Representatives via subpoena duces tecum seize and search the personal financial papers of a sitting President of the United States?
SLIDES - Trump v. Mazars and House Committees
Listen: Patreon Podcast - A primer on the Supreme Court case on subpoenas of Trump's financial records - Prof. Steve Vladeck (UT=Austin) and former fed prosecutor Harry Litman 18 minutes
Read: * Chief Justice Roberts Opinion of the Court, House Committees vs. Mazars, styled Trump v. Mazars (2020)

"Congress and the President—the two political branches established by the Constitution—have an ongoing relationship that the Framers intended to feature both rivalry and reciprocity. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (J. Madison); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring)." Discussion questions:
Are the executive and Congress rivals?
Since Article II Section 3 provides the President "shall take care that the laws be faithfully executed" shouldn't the President be seen as subordinate to Congress and the Constitution?
What is the judiciary’s role in this?
Does the judiciary itself in design or practice exhibit both rivalry and reciprocity with the other branches?
Does the Court via C.J. Roberts' Mazars opinions expand the role of the judiciary?
Deliver greater power to the President?
Properly limit Congressional power?


 Linda Greenhouse -  NY Times
 

Week  3 

Lecture: Equity from Athens to Atlanta

1:03.05 [skip 31:40 - 35:43]

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


Overview of Equitable Remedies
slides : Introduction to Equity
Casebook - * read pages 1 - 37
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

Injunction or Stay Pending Appeal?

READ * blogpost on Otherwise:
If Donald Trump is to be treated like any other citizen, should the federal 2d Circuit Court of Appeals affirm the dismissal of his civil suit to bar the NY State Grand Jury subpoena of the tax and financial records of Trump and companies he owns (in whole or part) prepared by and in the possession of the accounting firm Mazars?
Should New York substantive law apply which denies standing to anyone to challenge a subpoena to a third party?
Or should the Court apply federal civil procedural law which allows any "plausible" complaint to proceed to the discovery stage of litigation?
Is Trump's civil suit just an "end run" around the Supreme Court ruling that for him, as for anyone, there is no immunity from a state criminal investigation of his pre-Presidential private affairs?


The Asylum Cases
slides: East Bay Sanctuary/national injunctions
Background materials
East Bay Sanctuary resource page
East Bay Sanctuary - timeline
Read:
* Asylum Act: 8 U.S.C. 1158
* Our Highest Principles - NJ Law Journal Editorial, March 16, 2020
In a time of crisis such as the present when many thousands seek refuge in our country, a lethal virus spreads, and the west coast suffers in flame shouldn't courts defer to the efforts of a President to bar enforcement of the ordinary rule of law which seeks to protect refugees from other countries? Is there anything wrong - - legally - with choosing to put `American' citizens first?

Deep Background
East Bay Sanctuary v. Barr, July 6, 2020 affirms the preliminary injunction issued by District Judge Jon Tigar. In an opinion by Judge William Fletcher a 9th Circuit panel approves an injunction covering the entire Mexico border. A partial dissent by Judge Miller concurs in the judgment of illegality and propriety of the injunction, but cautions against its scope.  He would limit it to the direct clients of the plaintiff  advocacy organizations. Because the order has been stayed by the Supreme Court Miller's opinion is an attempt to define what he believes could withstand review by the Supreme Court, which, over impassioned dissent, stayed such an order before it was issued.

9th Circuit denies gov't motion for a stay December 7, 2018.
Order denying stay of District Court TRO (majority opinion by Bybee, C.J.)
Dissent (by Leavy, C.J.)
SCOTUS issues stay: see above.


Week 4 Ch. 2 -Equitable Defenses
Slides
Recorded lectures: Laches and Estoppel
pages 38-86
Unclean hands; unconscionability, laches, estoppel


 Week  5 Jury Trial and Arbitration as a Remedy  
Ch. 2 Trial by Jury
READ: pages 87 - 108
Why have jury trials been in decline?  

 SLIDES Arbitration
Opening Lecture: Arbitration, the National Labor Relations Act and the scope of the Federal Arbitration Act
September 29, 2020 - recorded online class
 Read:
Federal Arbitration Act (FAA)
Does consent have any meaning in the employment context?
Read: Skuse v. Pfizer,  N.J. 2020
In the consumer context?
 Kernahan v. Home Warranty (blogpost - read court opinion and NJSBA Argument )

Assignment: draft a mandatory arbitration provision for inclusion in an `online'  consumer contract or  employment contract that will be enforceable. MAXIMUM 100 words!!!


 Background
Kindred Nursing Centers v. Clark (U.S. 2017) read syllabus only - for background
Commercial Arbitration Rules and Mediation Procedures - American Arbitration Association
Uniform Arbitration Act- NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
California Assembly Bill 5 - Worker status and independent contractors


Week 6 
Contempt, Sanctions, Enforcement -  
SLIDES - Introduction to contempt

Ch. 3 The duty to obey: collateral challenges
SLIDES - The Duty to Obey and the Collateral Bar Rule
pages 162-187
Online Lecture (Echo 360) The Duty to Obey and 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)

Background:
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  
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) 

 
Week 7
Ch. 4 Injunctions and Declaratory Judgments
Read pages 189-233, 
Hypo 4.21 The Hazardous Waste Incinerator p. 232
Overview -   injunctive and declaratory relief, standards for declaratory relief, standards for injunctive relief - preliminary relief, mandatory and prohibitive relief
SLIDES - Declaratory Judgment
Online Lecture  (Echo 360) Declaratory Judgment

 SLIDES - Injunctions Part 1
Zoom Class - October 20, 2020
Chelsey Nelson Photography v. Louisville  see blog post and opinion.
Was the injunction against the Louisville LGBT protective ordinance correct?

 
Trump v. Vance (2d Circuit 2020) - Why has the 2d Circuit panel affirmed the dismissal of Donald Trump's lawsuit to  suppress the Grand Jury subpoena to Trump's accounting firm?

 
Week 8 - Ch. 4 Injunctions and Declaratory Judgments   
SLIDES Injunctions part 2 (updated) Standards, TROs. Persons Bound
SLIDES Injunctions, part 3 Notice and Bond Requirements
 Recorded class: Injunctions - Notice, Bond, persons bound, Stays pending appeal
2:43" Start at 10:00 
 Read pages 234-283
Hearing requirement, Persons bound, Notice requirement, Bonds
STAYS pending appeal
Casebook: pages 341-346
Rule 8 Stay or Injunction Pending Appeal - Federal Rules of Civil Procedure
 
READ Torts Today blogpost, order denying stay by Ninth Circuit, Sotomayor dissent and Millhiser discussion of nationwide injunctions linked in blogpost.
SLIDES Stays pending appeal (to be updated)

Archive:
Permanent Injunctions and Stays pending appeal:  Online lecture Spring 2020


Week 9  
Ch. 4 Injunctions and Declaratory Judgments
Permanent injunctions, framing the injunction, conditional injunctions, Appeals of Injunctions
Recorded lectures: Post-election challenges - Trump v. Boockvar, Commonwealth Secretary, Pennsylvania
Class - Permanent Injunctions - Part 2 November 10, 2020
Read:
pages 283-328
p. 336-347
Executive summary: Injunctions and Declaratory Judgments - pp. 436-441

 SLIDES - Permanent injunctions (updated November 10, 2020)

950 F.3d 1242

[Merits panel decision, February 28, 2020, affirming  injunction against point of entry bar rule by District Judge Richard Paez  opinion] [optional]


 SLIDES  East Bay Sanctuary v. Barr- 
 


 Week 10 Structural Injunctions  

Recorded Lecture:  From the Magna Carta to Emancipation: The Limits of Equity and the Power of Positive Law  SLIDES
End of the slave trade: Eric Foner - NPR
From the First Founding to the Second - 1776 to 1877
Lecture (Spring 2020)
SLIDES
Massive Resistance 
from Brown v. Board of Education of Topeka Kansas 
to U.S. v. Jefferson County Bd. of Ed., 380 F. 2d 385 (5th Cir, en banc 1967)
Recorded class: November 17, 2020 - From the founding to the Second Founding and the first decade after Brown v. Board of Education  
 Slides - Part 1 - the first decade post-Brown
SLIDES - Part 2 - Brown to New Kent
 Lecture - (spring 2019) Part 1 - School Integration - The first decade post-Brown

SLIDES
Read

Class 11 
Recorded class: November 24, 2020 Structural Injunctions - School integration from Brown to Detroit - 1954 - 1974

White Flight or state action
Creating segregation:
Forgotten history: how the federal government segregated America - Excerpt from The Color of Law by Richard Rothstein

School Busing:
Metropolitan area remedial busing and other uses and limits of the remedial power.
Lecture - Busing - Swann v. Charlotte Mecklenberg
SLIDES 
Video: The Battle for Busing - Retro Report  (10 minutes)

 Detroit - Desegregation stops at the city limits
SLIDES - Detroit and Kansas City

Read:
pages 396-403 Missouri v. Jenkins
Integrating Kansas City schools - the end of the line
Kansas City, Missouri

White Parents Express Outrage St. Louis Public Radio 
-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.


New York State's Extreme School Segregation - The Civil Rights Project//UCLA
 Is there a viable solution? - the State constitutional law approach

Latino Action, et al.  v. New Jersey
Complaint

Fact sheet
Week 12  
 Ch. 5 
RESTITUTION AND UNJUST ENRICHMENT
General principles, defenses, measuring the enrichment,
SLIDES - Ch. 5 - part 1
SLIDES - Ch. 5 - PART 2 Special Restitutionary Remedies

Read: 
pages 443=471
Hypos 5.19, 5.20, 5.21

Read:
page 474-515 
Read: 520-530
Constructive trusts, equitable liens, priority over other creditors, circumventing debtor exemptions, subrogation

Week 13
 Ch. 6 Damage Remedies
Read:
pages 531-591
General damage principles - the basic measure of damages- make whole; fair market value; contract price; Property Damage applying market measures, losses beyond the value of the thing lost - consequential damages
 
Archive
SLIDES - Ch. 6 Damages Part 1 
VIDEO - Ch. 6 Damages - Part 1, section 1 General Principles and fraud  28:39
VIDEO - Ch. 6 Damages Part 1, section 2 The Basic Measure of Damages  43:16
SLIDES Ch. 6 Part 2 Damages to property and applying market measures
VIIDEO Damages Part 2 Property damage applying market measures  49:26
SLIDES  Ch. 6 Damages part 3 Personal injury, loss of use of money
VIDEO Ch. 6 Damages Part 3 Personal Injury, loss of use of money 37:06

Week 14 Mass Tort Settlements

Mass tort settlement - ASR DuPuy Hip Implants
SLIDES = ASR v/ DePuy/J&J settlement

Punitive Damages
SLIDES Punitive Damages
VIDEO Mass Torts and the Troubled Rise of Punitive Damages
62 minutes
Class action - Settlement of economic losses under the Oil Pollution Act
Deepwater Horizon - BP Gulf Oil Spill settlement
SLIDES BP class action settlement
Economic and Property Damage Claims
FAQ
NOAA explainer - Deepwater Horizon
Oil Pollution Act of 1990 - (OPA) key provisions
Prof. John Goldberg  Memo to BP claims administrator Kenneth Feinberg  re extent of BP's civil liability for damages

 Resources/Background:
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
Federal Judicial Center - Reference Manual on Scientific Evidence - 3rd edition

Background resources:
Deadly Dust: Silicosis and the politics of industrial disease - Conk, Rutgers Law Review 201
Asbestos Timeline - ADAO - Asbestos Disease Awareness Organization
The Tobacco Institute
The Ford Pinto - Grimshaw v. Ford Motor Company (1978)
Black Lng Act of 1973
Eric Weinberg: Blood on their Hands - podcast
 BLOOD: An Epic History of Medicine and Commerce Douglas Starr (1998)
Vioxx - McDarby v. Merck (2007)
Merck Agrees to pay $950 million  in false claims settlement with DOJ
Oregon - Distribution of punitive damage awards 
2017 ORS 31.735 70/30 split state/plaintiff

 Date to be determined
Special class:  The resurgence of slavery.  Can a firm basis for abolition be developed within Islamic law? 
Lecture - Prof. Bernard Freamon, S.J.D. (Emeritus, Seton Hall Law School)
Possessed by the Right Hand, The Problem of Slavery in Islamic Law and Muslim Cultures
Read: Chapter 10: The Reemergence of Slavery and Slave Trading
pages 473 - 515 
Glossary: Islamic terms
Cover Possessed by the Right Hand


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