See POLICIES for casebook, accountability, due dates, etc.
It is the right of the supreme power to make laws; but further, it is its duty likewise...But since it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules for the perpetual information and direction of all persons in all points, whether of positive or negative duty.
Those rights then which God and nature have established, and are therefore called natural rights, such as life and liberty, need not the aid of human laws to be be more effectually invested in every man than they are; neither do they receive any additional strength when when declared by municipal law to be inviolable.
On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture.
The remedial part of a law is so necessary a consequence of the former two [declaratory and directory] that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights, when wrongfully withheld or invaded. That is what we mean properly, when we speak of the protection of the law.
William Blackstone, Commentaries on the Law of England, Vol 1 1765
Of the Rights of Persons, § II of the Nature of Laws in general
Article III- U.S. Constitution
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
Remedies Spring 2023 – Outline
Prof. George W. Conk - Senior Fellow, Stein Center for Law & Ethics
gconk@fordham.edu Room 7-179
Wednesday evenings 6:00 – 8:50
Classroom 4-08
Week 1 – How Should Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.
Theme: Justice vs. Positive Law
Read:
Fugitive Slave Clause (1787) (annotated) Article IV, Section 2, Clause 3
What remedy did Lord Mansfield, et alii, grant? Blackstone in 1765 wrote that slavery "cannot subsist in England", What remedial options did the English high court have? The Law Lords neither emancipated Somerset, nor vindicated Stewart's property right. What considerations might have motivated the judges?
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”.
Read: Benjamin Cardozo The Nature of the Judicial Process - Lecture IV Excerpts from Cardozo Lecture IV
Guided by History: Protecting the Public Sphere Under Bruen – Joseph Blocher and Reva Siegel (NYU L Rev 2023)
Judge Renee Bumb, District of New Jersey, has enjoined parts of the post-Bruen New Jersey law NJ A4769 /2022-2023. In it New Jersey's Governor and Legislature seek to limit carrying a gun to places where the owner has announced consent to carrying guns.
Governor Murphy explained the measure tried to balance public safety with the Supreme Court's commands. According to Judge Bumb in Koons v. Reynolds the U.S. Supreme Court in Bruen directs that courts NOT engage in the weighing and balancing of competing interests that is standard fare in equity courts considering injunctive relief. They must ask instead whether "the Nation's" traditions support the regulations a state imposes on the right of armed self defense.
Weeks 2 and 3 The
Administrative State Under Siege?
Slides - Administrative Procedure Act - Review of Agency Decisions
W.E.B DuBois – The Freedmen’s Bureau – The Atlantic, March 1901
Like Stanford's Mark Lemley who criticizes THE IMPERIAL SUPREME COURT, Georgetown's Josh Chafetz is a strong critic of judicial aggrandizement.
At least since the Freedmen's Bureau there has been hostility to the administrative state. When Franklin D. Roosevelt led Congress to create the "alphabet agencies" - SEC, NLRB, FCC, etc. there was immediate resistance - fear of bureaucratic overreach, et. the Short answer was the 1946 Administrative Procedure Act. The APA regulated rule-making via the Notice and comment process, and instituted guidelines for judicial review of agency decisions. In recent years, accelerating in the Trump years, the administrative state has been seen as at risk.
Some, like the Chief Justice John Roberts and Justice Neil Gorsuch disparage the administrative state as a drag on liberty. Read Kisor v. Wilkie, 139 S. Ct. 2400 (2019)[Gorsuch concurring]
Others - like Mila Sohoni have defended it.
Read:
Redeeming the Administrative State. Yale Journal on Regulation.
Kill the Leviathan? - blogpost- GWC
My thinking has been aided by The Major Questions Quartet [blogpost] by San Diego law professor Mila Sohoni, 136 Harvard L. Rev. 262 [2022]
Sohoni in her new article in the Harvard Law Review helpfully frames the development of the doctrine from a rule of statutory interpretation to a substantive infringement on Congressional power [the clear statement demand] and the discretion of administrative agencies via the recently coined Major Questions Doctrine.
Week 1 Read posts (and links) regarding the eviction moratorium case Alabama Association of Realtors v. DHHS, and the OSHA case NFIB v. Department of Labor,
Week 2 we will look at Biden v. Missouri nursing home vaccines case] and the EPA case. West Virginia v. Environmental
Protection Agency]
Week 1 Links:
In your opinion is the eviction moratorium sufficiently supported by the Public Health law 42 U. S. C.§264(a)?
Read: Supreme Court Strikes Down Federal Eviction Moratorium
[Supreme Court opinions are linked HERE and in the blogpost (but in the post it is not displaying blue)
Read: NFIB v. OSHA [per curiam opinion, Gorsuch concurring, Breyer dissent]
Supreme Court Eviction Order Threatens Vaccine Mandates
Senate Votes to Scrap Vaccine Mandate
Some Brief Thoughts on Gorsuch's Opinion in NFIB v. Osha - Election Law Blog
In your opinion was the vaccinate or test emergency order sufficiently supported by the Occupational Safety and Health Act?
WEEK 2 - Administrative Procedure and the "Major Questions Doctrine"
More discussion questions: compare the NFIB/OSHA decision to the Medicare/Medicaid cases
In Biden v. Missouri , Docket # 21A-240 the United States Supreme Court in a 5-4 ruling allowed a November 2021 Department of Human Services Regulation to stand. It provided "to receive Medicare and Medicaid funding, participating facilities must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19. 86 Fed. Reg. 61555 (2021)."
Justice Alito, in his dissent, said that the emergency rule compels 10 million health workers to be vaccinated or be "fired". The rule, he says is based on a "hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court."
Isn't 10 million people enough to treat this emergency rule - adopted without Notice and Comment - as a "major question" which Congress must authorize with "particular clarity" according the to Major Questions Doctrine voiced first in Alabama Realtors, and embraced most strongly in West Virginia v. EPA? [Docket # 20-1530]. In the West Virginia case the court majority discussed:
the “major question doctrine.” .... Under that doctrine, EPA explained, courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Ibid. (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014)
Isn't Samuel Alito correct that the scale of the emergency order is surely a "major question" and that the "speak clearly" requirement is not satisfied by a "hodgepodge" of statutes? Isn't the fact that this order is an expedited emergency rule nder [5 USC § 553(b)(3)(B)] not subject to the usual slow moving Notice and Comment Procedure of the APA 5 USC 553 which gives any interested parties the opportunity to be heard? And isn't this the kind of tyranny of which John Roberts warned in City of Arlington v. FCC. where he wrote - in dissent:
“accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . . may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Although modern administrative agencies fit most comfortably within the Executive Branch, as a practical matter they exercise legislative power, by promulgating regulations with the force of law; executive power, by policing compliance with those regulations; and judicial power, by adjudicating enforcement actions and imposing sanctions on those found to have violated their rules. The accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.
The so-called "Major Questions Doctrine" and its demand for Congressional clarity confront a limits of foresight by legislators of which Aristotle wrote 2,700 years ago.. Adrian Vermeule wrote recently in The Original Scalia that "The classical lawyer draws upon aequitas or epikeia to resolve ambiguities, interpret generalities, or otherwise clarify, limit or supplement the law." The Philosopher himself wrote in Equity:
n
Equity’s existence partly is and partly is not intended by the
legislators; not intended where they have noticed no defect in the law;
intended where they find themselves unable to define things exactly, and are
obligated to legislate as if that held
good always which in fact only holds good usually.
n
Aristotle - Rhetoric - Book I, para 13
Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman’s constitutional right to choose.
The Vice President and I are doing everything we can to protect access to reproductive health care and safeguard patient privacy. But already, more than a dozen states are enforcing extreme abortion bans.
Make no mistake; if Congress passes a national abortion ban, I will veto it.
State referenda and Legislation
Michigan Proposal 22-3 (passed 55/4)
New Jersey Reproductive Freedom Act A6260
Next we look at Dobbs v. Jackson Womens Health Organization, 142 S. Ct. 2228 and its aftermath. The issues are explored in The New Abortion Battleground in the January issue of the Columbia Law Review by David Cohen, Greer Donnelly, and Rachel Rebouche.
The least Dangerous Branch?
SLIDES - Student loans, CDC Evictions, OSHA Vaccines
Biden v. Nebraska Supreme Court Docket
Excerpt:
SEC. 2. : 20 USC 1070 >> WAIVER AUTHORITY FOR RESPONSE TO
MILITARY CONTINGENCIES AND NATIONAL EMERGENCIES.
(a) Waivers and Modifications.--
(1) In general.--Notwithstanding any other provision of law,
unless enacted with specific reference to this section, the
Secretary of Education (referred to in this Act as the
``Secretary'') may waive or modify any statutory or regulatory
provision applicable to the student financial assistance
programs under title IV of the Act as the Secretary deems
necessary in connection with a war or other military operation
or national emergency to provide the waivers or modifications
authorized by paragraph (2).
[[Page 117 STAT. 905]]
(2) Actions authorized.--The Secretary is authorized to
waive or modify any provision described in paragraph (1) as may
be necessary to ensure that--
(A) recipients of student financial assistance under
title IV of the Act who are affected individuals are not
placed in a worse position financially in relation to
that financial assistance because of their status as
affected individuals;SEC. 5. <<NOTE: 20 USC 1070 note.>> DEFINITIONS.
In this Act:
(1) Active duty.--The term ``active duty'' has the meaning
given such term in section 101(d)(1) of title 10, United States
Code, except that such term does not include active duty for
training or attendance at a service school.
(2) Affected individual.--The term ``affected individual''
means an individual who--
(A) is serving on active duty during a war or other
military operation or national emergency;
(B) is performing qualifying National Guard duty
during a war or other military operation or national
emergency;
(C) resides or is employed in an area that is
declared a disaster area by any Federal, State, or local
official in connection with a national emergency; or
(D) suffered direct economic hardship as a direct
result of a war or other military operation or national
emergency, as determined by the Secretary.
(3) Military operation.--The term ``military operation''
means a contingency operation as such term is defined in section
101(a)(13) of title 10, United States Code.
(4) National emergency.--The term ``national emergency''
means a national emergency declared by the President of the
United States.
Big Questions on Agency rights to sue by Amy Howe//ScotusBlog
Biden Loan relief gets Cold Reception - Amy Howe
Oral Argument - Biden v Nebraska. Transcript
Opening Statement - SG Elizabeth Prelogar 383 words, 2 minutes
Memorandum of the Department of Justice in support of the student loan forgiveness plan
Elizabeth Goitein - Emergency Powers are a Slippery Slope - Washington Post.
Jed Shugerman: amicus brief in support of Nebraska, et al.
Elizabeth Warren Accuses John Roberts of Acting as Super Legislator - Kate Riga Talking Points Memo
Caring About `Fairness' is a Political Choice - Jay Willis, Balls & Strikes
Ascertaining the Majorness of Student Debt Relief:
Professors Su, Shugerman, Davidson. Goitein - Emergency Podcast 11
Alabama Realtors v. Department of Health and Human Services
Does the Alabama Realtors case blocking a Department of Health & Human Services anti-eviction moratorium represent a reasonable restraint on Executive Branch overreach?
Eviction Moratoriums Save Lives - GWC
Blogpost and link The least competent branch: Scotus blocks life-saving fed eviction moratorium in Alabama Case - GWC
Is Ian Millhiser's warning well taken? We can expect conflicting rulings in post-Dobbs cases regarding Mifestiprone. What, if any restraint should trial court and appellate judges exercise?
12 States Sue FDA re Mifestiprone restrictions NY Times 2/25/2023
Biden Administration braces for Adverse Ruling that could ban abortion pills - NY Times
A new goal for abortion bills: punish or protect doctors - NY Times
SLIDES
Enforcement
of Equitable Remedies: Civil and criminal contempt of court; jury trial,
procedural requirements, collateral challenges
Slides: Contempt power - part 1
SLIDES: The Duty to Obey and the Collateral Bar Rule
Casebook pages 162-177
WEEK 9
SLIDES Declaratory Judgment
Federal Rule of Civil Procedure 65
SLIDES - Injunctions, Part 1
SLIDES - Mifestiprone Orders
Chapter 4 -Injunctions and Declaratory
Judgments; standards for issuance, Persons bound, Notice, Temporary Restraining
Orders, Preliminary Injunctions, Bonds.
Pages
189-236
Pages
244 - 286
WEEKS 10 - 11
Structural Injunctions and the Triumph and Fall of School Integration in the United States Supreme Court
Brown II 349 U.S. 294 (1955)
U.S. v. Jefferson County (1967)
* en banc majority opinion and decree -
*Judge Griffin Bell's dissent
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.
Restatement 2d, Torts § 431
What Constitutes Legal Cause
The actor's negligent conduct is a legal cause of harm to another if
o (a) his conduct is a substantial factor in bringing about the harm, and
o (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.
SLIDES - DePuy/ASR Hip Implant Settlement
SLIDES Ground Zero worksite tort claims
Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law andthe 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)
WEEK 13 Class Action Economic Loss Settlement
SLIDES: General Rules for Measuring Compensatory Damages
Restatement 3rd Torts Remedies -Tentative Draft No. 2 - 2023:
General Rules for Measuring Compensatory Damages
Economic Loss Rules:
Council Draft: Restatement of the Law: Economic Harm (2015)
The BP Deepwater Horizon Oil Spill of 2010
