McBlogmick

Today's New York Times has a story about improperly appointed judges. The judges are patent judges and the issue is not whether they may be article I judges. That is settled because of the plenary power Congress has over patent issues. The issue instead is about the appointments clause, which requires that "inferior officers" be appointed by "department heads" which is universally thought to be cabinet-level heads. Since 2000, the director of the Patent and Trademark Office, rather than the Secretary of Commerce, has appointed these judges. And the S. Ct. has held that judges are "inferior officers" and not mere employees.

"But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution."

"They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong."

"If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved."

This is as big as the bankruptcy issue in the late 70s, early 80s.

Diversity, supplemental jurisdiction, and removal. Short but sweet: fcts8.mp3.

Thanks for a great class!

This will catch us up, mostly. We have covered some things that aren't in the podcasts, and there are some things in that we haven't covered in as much depth. I'll try to do a supplemental podcast before finals on removal and supplemental jurisdiction to be sure we've covered that.

fcts5.mp3
fcts6.mp3

Eeek! Where has the semester gone? Here is the podcast for the introductory materials, fcts1.mp3; standing, fcts2.mp3; other justiciability stuff, fcts3.mp3; and Congress' control over jurisdiction, fcts4.mp3

Let me know if you have any questions or if there are things you would like me to cover in more depth.

I know it's early to be thinking about next semester, but I've had a couple of people ask already about books and things. The book for Federal Courts is the 5th edition of Chemerinsky's Federal Jurisdiction treatise. I'll be supplementing it through the semester with cases that I've edited. Sorry that you won't be able to get it used (it's a new edition), but it's a relatively more reasonable book than your usual textbook. For Civil Rights, we'll be using the text, Constitutional Torts, for which Sheldon Nahmod is the lead author. It's the 2d edition, published in 2004, and LexisNexis is the publisher.

Don't forget to register for the TWEN page, and I'll see you next semester. Have a great break!

Here it is, the last podcast summary for federal courts: abstention. fcts7.mp3

Good luck on the final, feel free to ask/send me any questions up to 24-hours before the exam (that means the cut-off is 9:00 a.m. on Sunday, May 6), and congratulations to any of you graduating!

Here is the podcast on federal law in state courts, Supreme Court review of state court decisions, and the cert. policy. fcts6.mp3. I hope to have abstention, the last podcast, done tomorrow.

Voila: fcts5.mp3.

This site is maintained by CALI, and podcasting is part of its technology and law teaching empire. If you have a moment, it would help CALI and me significantly if you could take this survey. CALI will not release to me the results for my students, and it won't release the results of the survey at all until well after the semester has ended.

I really use this kind of information to structure what I provide for students, so knowing on a grand scale what works, what doesn't, and why helps me and my future students enormously.

Thanks!!

And, without too much delay, here's the podcast governing the power of Congress to control the jurisdiction of the courts. fcts4.mp3

I'll be working on subject matter jurisdiction and federal common law over the weekend, and should be just about caught up at some point next week. Que Milagro!

Here is the podcast on ripeness, mootness, and the political question doctrine. fcts3.mp3.

The next one will be on Congress' power over federal court jurisdiction.

The Seventh Circuit issued this recent decision in a case on how not to act like a lawyer. redwood.pdf. The case presents a host of interesting federalism and procedural issues, but the most interesting part is the one meritorious claim of the plaintiffs and the court's resolution.

And even though I don't particularly like Easterbrook as a human being, he is one clear writer.

The Ninth Circuit has upheld the class certification decision of the district court in Dukes v. Wal-Mart. Wal-Mart class action.pdf

The class in this case is all of the women who have worked for Wal-Mart or Sam's Club at any point since 1998--an estimated 1.5 million women. The allegations in the complaint are that because of the centralized control of the main office and the policies it implemented, all of those women were discriminated against in pay and promotional opportunities in the same way.

This is structural litigation at its most basic even though it's directed at a private company and not the government.

Here is the podcast on standing. fcts2.mp3

Let me know if anything needs a fuller explanation or better examples. Mootness and ripeness will be in a combined podcast coming up next.

Yes, it's more of that theoretical junk, but nicely encapsulated. fcts1.mp3. If there's anything you would like me to clarify or to address in more detail, I'm happy to do that.

One thing I tried to do in the podcast that may not have been clear in class was try to explain a little more why the theory matters. Ultimately it's because people are strategic about whether they want to be in federal or in state court. We think that different fora will yeild different results. And so, much of federal court practice is trying to convince a judge that you should be in federal court, or that you should not be in federal court. Judges think about this theoretical stuff all of the time, and so having it at your disposal in the language judges use is a good source for arguments.

Please register for our class on TWEN. The first week's assignments are: Jan. 8, read Hart and Wechsler, pp. 1-28; Jan. 10, read Hart and Wechsler, pp. 28-54.