Civil Rights Blog

If anyone is still checking . . .

the Supreme Court hears oral arguments this Wednesday in Ashcroft v. Iqbal, dealing with the availability of a BIvens action against the Attorney General, FBI Director, and other high administration officials for post-9/11 round-up and detentions. Issues on the table include whether a Bivens claim should lie, whether the officials are entitled to qualified immunity, and (flashback to civ pro) whether such a claim requires heightened pleading.

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All the best

I will also say that I very much enjoyed this class and today’s oral arguments.  Professor Wasserman, thanks for a great semester!

All the best,

justin

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Yeah, that was fun

I’m feeling a little nostalgic already.  Thanks for a great semester, Prof. Wasserman.  I thought the oral arguments were lots of fun.  I especially enjoyed the bloopers.

Happy holidays everyone!

Lorayne

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Oral Argument Transcripts

Congratulations on an excellent job of oral arguments. I hope you all enjoyed the project. Audio files for each argument are below, for anyone who is interested. Thank you again for a great semester and a fun class.

Van de Kamp v. Goldstein

Fitzgerald v. Branstable Sch. Committee

Wilson v. Libby

O’Neill v. Couglan

Brown v. McKithen

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Robert H. Jackson on Oral Arguments.

Robert H. Jackson:
“I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned — as I thought, logical, coherent, complete. Second was the one actually presented — interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.” Resolutions in Memoriam: Mr. Justice Jackson, 99 L. Ed. 1311, 1318 (1955).

So true. With the difference that with me the perfect argument comes up in the drive home.
Good class everyone! Good luck in your finals and happy holidays!
Mr. Ramirez

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Argument Preparation (Moved to Top)

(Updated and Moved to Top):

Not every case on our “docket” for oral arguments actually has had cert granted–only Van de Kamp and Fitzgerald; for the rest we are acting as if cert were granted on the issues identified and arguing that. You should have no trouble preparing both to argue and judge from reading the case being reviewed (and the cases discussed in the opinion) and looking at the briefs in the courts of appeals, which should be on Westlaw.

Also, the only issues that you ever argue to a reviewing court are those that are presented to the reviewing court. In SCOTUS, that is the issue on which cert has been granted. Thus, the only thing you should be ready to argue tomorrow is the issue identified in the original list of cases and in the Argument Schedule.

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Pullman abstention and Federal Forum

To correct one point from Carmen: The effect of Pullman abstention  was that the marriage question would be litigated through the state court system on state law grounds –with no review to SCOTUS, since there are no federal issues for SCOTUS to hear and SCOTUS cannot review state-law determinations. The litigants would get their federal forum if, after the state courts have rejected the state law challenges to the state’s marriage rules, they then return to federal district court with a federal constitutional challenge. Remember that Pullman merely postpones federal jurisdiction on the understanding that a state-law determination can moot the federal constitutional challenge or the plaintiffs will be allowed back to federal court.

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More abstention over marriage

By Carmen Manrara:

Michelle - I agree with you that about Ashley’s #2, but disagree with some of your other points.  The reason that the federal judiciary wants to abstain is because of reasons of comity and federalism.  Marriage is historically a state issue that is governed by state laws.  The federal courts are choosing to abstain in gay marriage cases out of respect for state courts and state processes.  Even though there is no question that this is a highly political issue, the Younger Abstention doctrine supports the federal courts abstaining in these cases.

Remember, the litigants still have [theoretically given how unlikely it is for the Supreme Court to grant cert.] the opportunity to have their case heard in a federal forum by appealing the State’s highest court’s decision to the Supreme Court.

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This Might Be Helpful

For anyone that feels rusty on their oral arguments skills…I have listened to a couple of pros do their oral arguments by visiting Oyez.com.  You can hear attorneys argue some of the cases that we covered in class.  It’s helping me refresh my memory from LSVII, which for some reason seems like I took ages ago.  I think every year in law school translates to about 3 years in human years.

Lorayne

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A note on oral arguments and preparation

Not every case on our “docket” for oral arguments actually has had cert granted–only Van de Kamp and Fitzgerald; for the rest we are acting as if cert were granted on the issues identified and arguing that. You should have no trouble preparing both to argue and judge from reading the case being reviewed (and the cases discussed in the opinion) and looking at the briefs in the courts of appeals, which should be on Westlaw.

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