FEDERAL COURTS
Spring 2016 | LAW 643-001
TTH 4:00 – 5:50 p.m. | Room TBD
Office Hours: TTH 12 – 1 p.m., or by appt.
Professor Vladeck
svladeck@wcl.american.edu
Room 350 | (202) 274-4241
Course Description:
From the unique and complex legal issues arising out of the war on terrorism to the
late Anna Nicole Smith’s quest for her husband’s fortune; from unprecedented
congressional alteration of federal jurisdiction with regard to class actions, bankruptcy,
large-scale accidents, and immigration law to the courts’ own mounting internal struggles
with an ever-expanding caseload; and from the political idiosyncrasies of the Terri Schiavo
case to the availability of domestic courts to litigate international human rights abuses, the
study of federal courts has an importance and significance today unmatched in generations.
As a field, Federal Courts is principally about judicial power, including the full
constitutional extent of that power, the constitutional and sub-constitutional limits on that
power, and how that power is exercised by the federal courts to protect the separation of
powers and other fundamental constitutional ideals. Thus, rather than studying a
particular body of law, our focus in on a particular actor — the federal judiciary in general,
and the “Article III” courts, in particular. To that end, our topics will include, among others,
the constitutional scope of the jurisdiction of the federal courts (and Congress’s power to
constrain that jurisdiction); the legal authority for, and substantive limits on, non-Article
III courts; military tribunals and the war on terrorism; the jurisdictional interplay between
state and federal courts; the complicated and somewhat convoluted field of “federal common
law”; the availability of (and scope of sovereign and official immunity from) suits
challenging state and federal official action; judge-made doctrines based on federalism and
principles of comity that otherwise limit the exercise of federal jurisdiction; and the
procedural minefield that is federal habeas corpus for state prisoners.
Whereas our study of each issue is, in many ways, primarily interested in the history
and structure of the federal judicial system, these topics necessarily include within their
sweep fundamental questions about the proper horizontal separation of powers between the
political branches and the judiciary, the proper vertical separation of powers between
federal and state courts, and the structural and individualized constitutional issues raised
by any of the relevant actors’ attempts to alter the historical balance.
Expectations & Evaluation:
To be clear from the outset, this class will require a substantial amount of work. I
sincerely believe that there is no more rewarding course in law school, but it is an
inescapable truism that you (and I) will have to put a substantial amount of effort into this
course to realize those rewards. I say this not to scare any of you away, but to make sure
you harbor no illusions about what is expected of you.
In addition to the reading assignments, your grade will be based upon a four-hour
timed in-class final examination administered during finals. I also reserve the right to
“bump” your final grade up or down one iteration (e.g., B+ to A- or to B) based upon your inclass participation. In class, I plan on cold-calling, as much to allow everyone an equal
opportunity to participate in the discussion as to assure that you come to class prepared. I
will rotate through the class, however, so that one-half of the class will be “on call” for each
session (i.e., you will be on call in every other class). With that in mind, a word about
Federal Courts — Spring 2016 — Syllabus
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attendance is in order. You must generally attend class, except where circumstances
necessitate — and unpreparedness is not one such circumstance; I’d rather you come to
class unprepared than not come to class. Beginning with our second class (Thursday,
January 14, wherein you will also choose your seats), I will take attendance by circulating
a sign-in sheet at the beginning of each session. If you need to be absent, you must let me
know in advance, preferably via e-mail. Because of ABA guidelines, you risk failing the
course (or at least having your grade substantially reduced) if you miss more than the
occasional class.
A word about the reading: Federal Courts is often referred to as the “organic
chemistry” of law school. Whether or not that’s accurate, Federal Courts is undoubtedly a
subject the breadth of which is disproportionate to the number of credits offered. I have
done my best to pare the reading down to a manageable amount. As such, there are a few
advanced topics that we simply won’t have time to cover this semester (post-conviction
habeas foremost among them), although I’d be happy to discuss these topics outside of class.
Even still, you should expect ~35–40 pages of dense reading per class, and it is extremely
important that you stay ahead of the game. If you have any trouble keeping up, please come
see me, sooner rather than later.
One last, albeit related, note: Our casebook is the infamous and venerable tome, Hart
& Wechsler’s The Federal Courts and the Federal System, in its brand-new seventh edition
(2015). “Hart & Wechsler,” a colleague of mine is fond of remarking, is a wonderful book for
everything except teaching. It is maddeningly rhetorical, hyper-dense, and includes far too
much significant material in the notes after cases (for which you are responsible) and
footnotes (for which you are not). That being said, it is a simply invaluable reference and
the gold standard when it comes to federal courts casebooks — the entire field of federal
courts owes much of its origins to the first edition, published in 1953. By the end of the
semester, you may come to hate the book, but I truly believe that it is the best way to fully
appreciate the (often endless) complexities of the questions that we will be studying.
Finally, for those who want even more reading, you might consider as a useful
companion Professor Erwin Chemerinsky’s invaluable treatise, Federal Jurisdiction (6th
ed. 2012). You may find Chemerinsky particularly helpful and clear as a concise and
distilled summary of the more complicated topics we will study this semester — I have no
doubt that it is; I sure thought so when I was in your position. I must emphasize, however,
that Chemerinsky is not a substitute for the assigned reading for class, nor will I ever
assign reading from (or expect you to be familiar with) it. Indeed, I will expect you to be
familiar with the cases discussed in the assigned reading, irrespective of the treatment they
receive in (the increasingly outdated ) Chemerinsky treatise. In addition, there will also be
handouts to supplement the readings at various points. My default will be to post each
handout as a PDF to MyWCL. Assume, unless you are specifically told to the contrary,
that the reading assignment is what the Syllabus specifies.
Scheduling Issues:
Finally, as you may know, my wife and I are expecting our first child on Friday,
January 22 (although only 4% of babies are actually born on their due date). Whenever
Baby Girl Vladeck arrives, the next four classes (so, two weeks) will be cancelled—
potentially beginning on very short notice. To reduce the burden this will create for makeup courses toward the end of the semester, we’ll have one extra class on Friday, January
15 (the first week of the semester), from 1:30 to 3:20 p.m. (Room TBA). And we’ll work
together to sort out the rest of the scheduling issues once the baby arrives!
Federal Courts — Spring 2016 — Syllabus
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FEDERAL COURTS SYLLABUS — SPRING 2016
“H&W” = HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (7th ed. 2015)
I.
FIRST THOUGHTS
1.
Introduction
o HANDOUT I
 al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc)
2.
Marbury and the Function of Adjudication
o H&W ci–cii (U.S. CONST. art. III)
o H&W 1–20 (Introductory Note on Article III)
o H&W 59–72 (Marbury and Notes)
o H&W 73–81 (Note on the Function of Adjudication)
II.
JUSTICIABILITY AND THE ARTICLE III COURTS
3.
Standing and the Enforcement of Private Rights
o H&W 101–32 (Fairchild, Allen, and Notes)
o HANDOUT II
 Excerpt from 2015–16 Casebook Update
4.
Congress, Private Rights, and the Nature of the Challenge
o H&W 132–60 (Lujan and Notes)
o H&W 168–74 (Yazoo and Notes)
o H&W 174–83 (Note on Facial Challenges and Overbreadth)
5.
The Federal Courts and the “Political Question” Doctrine
o H&W 237–57 (Nixon and Notes)
o H&W 258–66 (Note on the PQD)
o HANDOUT III
 al Shimari v. CACI Premier Tech., Inc.,
No. 08-827, 2015 WL 4740217 (E.D. Va. June 18, 2015)
III.
CONGRESS AND THE “JUDICIAL POWER OF THE UNITED STATES”
6.
The Supreme Court’s Original Jurisdiction
o H&W 267–72 (Notes)
o H&W 272–86 (Louisiana v. Mississippi and Notes)
o H&W 286–94 (Notes on Original Writs)
o HANDOUT IV
 Brief of Law Professors Eric M. Freedman et al. as Amici Curiae in
Support of Petitioner, In re Hill, 134 S. Ct. 118 (2013) (mem.)
7.
The Constitutional Scope of Federal Jurisdiction
o H&W 779–806 (Osborn, Lincoln Mills, and Notes)
o H&W 1419–1430 (Notes, Strawbridge, and Tashire)
o H&W 410–11 (Note on Tidewater)
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8.
Congress’s Power over Federal Jurisdiction
o H&W 295–322 (Notes, Sheldon, McCardle, and Notes)
o H&W 326–35 (Notes and Battaglia)
9.
Jurisdiction-Stripping, the Suspension Clause, and Boumediene
o H&W 1193–1200 (Notes)
o H&W 1200–06 (Boumediene and Notes)
o H&W 335–41 (Note on the Preclusion of Habeas Corpus Review)
10.
Extrajudicial Revision and Congress’s Power over “Rules of Decision”
o H&W 82–94 (Hayburn’s Case and Notes)
o H&W 323–25 (Note on Klein)
o HANDOUT V
 Schiavo ex rel. Schindler v. Schiavo, 404 F.3d 1270 (11th Cir. 2005)
 Caminker, Schiavo and Klein, 22 CONST. COMMENT. 529 (2005)
IV.
NON-ARTICLE III FEDERAL COURTS
11.
Non-Article III Courts, Part I: Territorial Courts
o HANDOUT VI
 Palmore v. United States, 411 U.S. 389 (1973)
 Lawson, Territorial Governments and the Limits of Formalism,
78 CAL. L. REV. 853 (1990)
12.
Non-Article III Courts, Part II: Military Courts
o HANDOUT VII
 Al Bahlul v. United States, 792 F.3d 1 (D.C. Cir. 2015)
13.
Non-Article III Courts, Part III: “Public Rights” Adjudication
o H&W 345–63 (Crowell and Notes)
o H&W 364–90 (Stern and Notes)
o HANDOUT VIII
 Excerpt from 2015–16 Casebook Update
14.
Federal Law and/in State Courts
o H&W 412–22 (Tafflin and Notes)
o H&W 427–37 (Tarble and Notes)
o H&W 437–49 (Testa and Notes)
15.
The Supreme Court and State Courts
o H&W 461–77 (Notes and Martin)
o HANDOUT IX
 Parker, Alabama Justices Surrender to Judicial Activism
 Am. Trad. P’ship, Inc. v. Bullock, 132 S. Ct. 2490 (2012)
o H&W 477–85 (Murdock and Notes)
o H&W 491–503 (Notes and Michigan v. Long)
Federal Courts — Spring 2016 — Syllabus
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V.
FEDERAL COMMON LAW: THE COURTS AS LAWMAKERS
16.
Defining “Primary” Obligations, Part I
o H&W 559–69 (Notes)
o H&W 584–97 (Erie and Notes)
o H&W 635–42 (Notes and Hudson and Goodwin)
o H&W 643–56 (Clearfield Trust and Notes)
17.
Defining “Primary” Obligations, Part II
o H&W 665–77 (Boyle and Notes)
o HANDOUT X
 Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009)
o H&W 686–88 (Note and Chelentis)
o H&W 688–701 (Note on FCL Implied from Jurisdictional Grants)
18.
Defining “Primary” Obligations, Part III
o H&W 702–22 (Sabbatino and Notes)
o HANDOUT XI
 In re Assicurazioni Generali, S.P.A., 592 F.3d 113 (2d Cir. 2010)
 Lael Garcia v. Texas, 131 S. Ct. 2866 (2011)
19.
Enforcing “Primary” Obligations
o H&W 723–38 (Note, Cannon, and Sandoval)
o H&W 738–52 (Note on Implied Rights of Action for Statutory Rights)
o HANDOUT XII
 Wisniewski v. Rodale, Inc., 510 F.3d 294 (3d Cir. 2007)
20.
Implying / Inferring Constitutional Remedies
o H&W 752–61 (Ward and Notes)
o H&W 762–77 (Bivens and Notes)
o HANDOUT XIII
 Meshal v. Higginbotham,
No. 14-5194, 2015 WL 6405207 (D.C. Cir. Oct. 23, 2015)
VI.
THE FEDERAL COURTS, PRIVATE SUITS, AND OFFICIAL CONDUCT
21.
Federal Sovereign Immunity
o H&W 887–83(Preliminary Note)
o H&W 883–95 (Lee and Notes)
o H&W 895–904 (Notes on Statutory Waivers of Sovereign Immunity)
o HANDOUT XIV
 Al Haramain Islamic Found. v. Obama, 705 F.3d 845 (9th Cir. 2012)
22.
State Sovereign Immunity and Ex parte Young
o H&W 905–14(Note and Hans)
o H&W 914–22 (Note on Origin and Scope of Eleventh Amendment)
o H&W 922–38 (Ex parte Young and Notes)
o HANDOUT XV
 Vladeck, Douglas and the Fate of Ex parte Young,
122 YALE L.J. ONLINE 13 (2012)
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23.
Congress’s Power To Abrogate State Sovereign Immunity
o H&W 939–40 (Note on Abrogation)
o H&W 940–56 (Seminole Tribe)
o H&W 956–67 (Notes)
o H&W 967–81 (Alden and Notes)
24.
42 U.S.C. § 1983 — The Short, Short Version
o H&W 986–94 (Note and Monroe)
o H&W 994–1009 (Note on § 1983)
o H&W 1009–15 (Note on § 1983 for Statutory Rights)
o HANDOUT XVI
 Equal Access for El Paso v. Hawkins, 509 F.3d 697 (5th Cir. 2007)
25.
Official Immunity
o H&W 1030–38 (Harlow)
o H&W 1038–55 (Note on Officers’ Accountability)
o H&W 1056–60 (Note on Immunity in Non-Damages Cases)
VII.
HABEAS CORPUS
26.
Post-Conviction Habeas Corpus: Background
o H&W 1265–72 (Introductory Note)
o H&W 1272–90 (Brown v. Allen and Notes)
o H&W 1290–92 (Note on the Suspension Clause)
o H&W 1292–1301 (Teague and Notes)
27.
Post-Conviction Habeas Corpus: Contemporary Rules
o H&W 1302–19 (Williams and Notes)
o HANDOUT XVII
 Irons v. Carey, 479 F.3d 658 (9th Cir. 2007)
o H&W 1323–46 (Notes on Procedural Default)
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