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
Remedies: Spring 2024 – Outline
1/11/24
Prof. George conk
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)
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
Brief of Respondents Gina Raimondo, Secretary of Commerce
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
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.
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?
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
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
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
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 - 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 **
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
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 ]
A decade after Brown = a stone wall
SLIDES U.S. v. Jefferson County
July 2, 1964
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
| Damages - General | |||
| 8.10 | Damages — Effect of Instruction — Personal Injury Case Verdict Sheet | Word | |
| 8.11A | Medical Expenses (Non Auto) | Word | |
| 8.11B | Duty To Mitigate Damages By Medical And Surgical Treatment | Word | |
| 8.11C | Loss of Earnings | Word | |
Week
13 – Mass tort remedies –April
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
SLIDES - DePuy/ASR Hip Implant Settlement
SLIDES Ground Zero worksite tort claims
BACKGROUND
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
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