More on Plaut

One of you asked a terrific question in class Wednesday: suppose the statute at issue in Plaut had simply created a much longer statute of limitations (or even eliminated it altogether), such that the plaintiffs in the dismissed actions could then file new law suits that would be timely. Would that violate the rule articulated by the Court in Plaut?

The short answer is yet. I went back and read the full opinion this morning, and the broader rationale clearly rests on the idea that once an action ends in a "final judgment" -- the final word from the judicial department -- Congress cannot disturb it without violating separation of powers principles.

How can this be squared with Wheeling Bridge II? The critical difference concerns the nature of the claim, especially with respect to time. In Plaut, the plaintiffs claimed that certain specific actions taken in the early 1980s violated the Securities Act. Those claims were litigated and finally resolved by the judiciary. And once the judiciary issues a final judgment, it cannot be disturbed. In contrast, the claim in Wheeling Bridge II concerned the legality of the bridge at the moment of the later law suit. Thus, Congress could not go back and somehow say that the Wheeling Bridge had always been legal. But it could say, by statute, that it is now legal. And once it is legal, the justification for ongoing relief -- the injunction -- dissolves.

One final point. Had Congress amended the statute of limitations before the judgment in Plaut's law suit had become final -- say, while his petition for certiorari at the Supreme Court was pending -- it would have been permissible for courts effectively to retroactively apply the new statute of limitations. That it, the principle announced in Plaut only applies to judgments that have become final. As Scalia explains, it is final judgments that are the final word from "the Article III hierarchy" of courts, and it is those that cannot be undone.

Hope this helps. And I'm happy to field more questions on the point.

Problem 2 (and an apology)

I learned from a couple of you on my way out of the classroom that Problem 2 (the problem on standing assigned for Wednesday) is not currently available on the ClaraNet course page. I have two responses:

1. I am very sorry. I realize many of you, especially those with full-time jobs, try to complete your academic work for the week on the weekends, so having the full week's assignments available is important. I thought I had posted the problem, but obviously I goofed. I will make every effort to have the assignments posted at least a week in advance for the rest of the semester.

2. I will have Problem 2 up on ClaraNet no later than 10:00 tomorrow (Tuesday) morning. If this is not soon enough for some of you, I will completely understand.

Again, my sincere apologies. And I look forward to seeing you Wednesday.

Classes now available on iTunes

Digital audio of our first two class meetings are now available for download as podcasts (or for streaming) on iTunes. The link is here. In order to access the files, you must have the iTunes software on your computer. You can download that software here for free. Going forward, each week's classes should become available on iTunes on the Thursday of that week. If you have any questions or comments, please let me know. And if you have any technical problems, you can also contact Mike Morales in the law school's IT department. Thanks.

Some more thoughts on judicial review

Two more thoughts I wanted to add to our conversation last night about Marbury v. Madison and the practice of judicial review:

* First, regardless of the merits, judicial review has become an entrenched aspect of our constitutional structure because, over the past 200 years, we Americans--and particularly we Americans in political power--have generally liked its results. Indeed, elected officials have generally found many reasons to like judicial review, even though it occasionally invalidates policies they like. Often, for instance, it may be politically easier to delegate matters to courts so as to avoid political responsibility for controversial decisions. Or courts might be used by national political coalitions to stamp out regional outliers (here is where judicial review of state laws is especially important) when national politicians are incapable of doing so through more direct means. There are a variety of possibilities. The important point is that the power of judicial review--that is, the role of the Supreme Court in shaping our Constitution's meaning over time--has been politically constructed. It does not emanate from the law.

* Second, perhaps the more interesting question than whether the Court has the power of judicial review is how far that power extends. Consider the recent affirmative action case involving the University of Michigan. In Gratz v. Bollinger, the Court held that Michigan's undergraduate admissions program, which assigned a fixed number of points to applications based on ethnicity or race, was unconstitutional. As a party in the law suit, the University of Michigan surely must follow this decision, lest it be in contempt of court. This is critical to the rule of law. But must the University of Oregon? Can the governor of Oregon interpret the Constitution differently, adhere to a nearly identical affirmative action program, and face any law suit if it comes? If so, how is this consistent with the rule of law? If not, is there a meaningful difference between the Constitution and the opinions of the Supreme Court? Is it not the former that is our foundational law, rather than the latter?

Past exams and class outlines

I have posted all of the exams I have previously administered in Constitutional Law I on the ClaraNet course page, which you can access here. (The one partial exception is 2005, for which I have posted only the essay portion of the exam.) I have yet to post "model answers," but I should be able to do so within the next couple of weeks. They are apt to be outlines or checklists that I used in grading the essays.

I have also posted on the ClaraNet page a couple of class outlines, one for Monday and one for tonight. These are the outlines I write on the board at the beginning of class. I have posted them in the event they are helpful in structuring your class notes.

I look forward to seeing you this evening.

Course syllabus and assignment schedule

The syllabus for the course and the schedule of assignments for the first six weeks of the semester are now available here, at the ClaraNet course page. Please feel free to contact me with any questions.