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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

COURSE RULES AND SYLLABUS—FEDERAL COURTS (SPRING 18)

Professor Lee Kovarsky (he/him pronouns)


Tues. 10:55 p.m. to 11:50 p.m. and Thurs. 10:55 p.m. to 12:55 p.m., Room 302
lkovarsky@law.umaryland.edu
434.466.8257

Required texts

PETER W. LOW, JOHN C. JEFFRIES, JR., CURTIS A. BRADLEY, FEDERAL COURTS


AND THE LAW OF FEDERAL-STATE RELATIONS (8th ed. 2014) (“Casebook”)

PETER W. LOW, JOHN C. JEFFRIES, JR., CURTIS A. BRADLEY, FEDERAL COURTS


AND THE LAW OF FEDERAL-STATE RELATIONS (2017 Supplement)
(“Supplement”)1

Course Rules

I. Intro and Topical Overview

You should read this Introduction and Topical Overview, Class


Schedule, Computer Policy, Attendance and Class Preparation Policy, Class
Participation Principles, Blackboard Guidelines, Office Hours and Contact
Information, and Grading Policy—all of which are provided below. I would
immediately familiarize yourself with the Blackboard web application, as I
will use it to provide assignments, supplementary materials, and updates, as
well as to administer the class (http://www.law.umaryland.edu/facultystaff
/instruction/blackboard/).

The Syllabus appears after the “Course Rules.”

II. Class Schedule

Unless a change has been formalized, class will meet in Room 302 on:
Tuesdays from 10:55 a.m. to 11:50 a.m. and Thursdays from 10:55 a.m. to
12:55 p.m. We will always have a 5-10 minute break in the middle of any two-
hour class.

Oh, and one more thing: there are no assigned seats, but I will ask that
you sit in the same seat starting in third class, when I will pass around a
seating chart.
                                                                                                               
1This is a “Required Text,” notwithstanding the fact that it is called a supplement. I expect
you to read the material in it with as much care as all of the material in the Casebook.

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

III. Computer Policy

Computers are permitted in class. Not to kill the rush of clandestine


Internetting, but I do not care what you do on your laptop. You are the person
paying to be here. If you want to play solitaire or tool around on Facebook,
then either (1) it’s my fault or (2) you’re spending your money really
unwisely. Either way, I should not be policing you.

The only rule I will enforce is that there is to be absolutely no sound on


computers or phones. Also, if you are called on and can’t participate because
you’ve been web surfing or are otherwise distracted, then an absence will be
decremeted pursuant to the Attendance Policy, infra.

IV. Attendance/Class Preparation Policy

• You will be allotted FIVE absences per semester. I do not care if your
alarm failed to go off or if you have to go to Burning Man. FIVE.
• If you are going to miss class, you are required to send me an email to
my Maryland address, time-stamped and before class starts, letting
me know that you will be absent, and why. The email subject should
say “CLASS ABSENCE” so that I can put a filter on it.
• If you fail to send me an email before class starts, then I will
decrement TWO of your FIVE available absences.
• If you exceed your five allotted absences, I reserve the right to lower
your grade one level (e.g. from an A- to a B+). This will not happen in
all situations, but exceeding the FIVE-absence threshold triggers my
discretion.
• I am not insane. I reserve the right to exercise discretion over any and
all elements of this policy. That discretion will almost always inure to
the benefit of students.
• If I call on you in class and you are not prepared, on the first occasion
you may take a free “pass.” On each subsequent occasion, I will
decrement one of your FIVE allotted absences.

V. Class Participation Principles

This class will be part lecture, part cold-calling, part “experiential,”


and part “other.” I ordinarily do not use power point. (I think it makes me
lazy, and students tend to engage only the material that appears on the
slides.)

I will “cold-call” on people to help me show the rest of the class how to
think its way through a problem. In that respect, class will be similar to what

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

you have seen in the movies. You should conceive of your role that way when
you answer questions. You are expected to be familiar with the material (see
Class Preparation Policy, supra), but I will never use the cold-calling process
to embarrass or humiliate someone. In that respect, class will be unlike what
you have seen in the movies. I expect each of you to treat your colleagues
with that same respect. Be forewarned, I am terrible with names.

Class Participation is mandatory and the quality of yours will


determine whether I exercise discretion in your favor after the final exam.
See Part VII, infra. I would ordinarily prefer not to have people raise their
hands, but because this is a big class we’re gonna have to do it that way. That
being said, you can raise your hand and ask a question at any time.

Please do ask the “what does that word mean” questions. Legal writing
is jargon and it is sometimes pompous jargon (see, e.g., my “see, e.g.’s”). I
guarantee that, if you raise your hand and ask what some word means, then
there will be 20 other students in the room that are grateful that you did so.

VI. Blackboard

My class is “paperless.” Everything is on Blackboard – changes to the


schedule, the Syllabus, supplementary materials, etc. Everything. So pay
attention to emails, which will generally not have attachments, but will
instead direct you to a new document posted on Blackboard.

VII. Office Hours and Contact Information

I will hold office hours every Tuesday from noon to 1:00 p.m. (I might
step out for a couple minutes to grab lunch.) You can also call me any time at
434.466.8257, which is my cell phone. You can also email me any time at
lkovarsky@law.umaryland.edu. I am more than happy to schedule any other
time for face-to-face discussion. Having said all of that, my preferred meeting
protocol is over SKYPE or some other video-conferencing platform. This
allows me to schedule meetings a little later in the day, which is often easier
on everyone’s schedule.

I have one request. Please read the material that you are asking about.
Do not ask me administrative questions that you could have figured out by
looking at the Syllabus, infra, or by reading the material specified therein. Of
course I make (many) administrative mistakes, so you will invariably have
administrative questions. I just ask that you do your due diligence in
preparation for our conversation.

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

A good rule of thumb for emails is that you should email me questions
as long as they would be questions that you would feel like you might show
up to my office hours to ask. So, if this were Civil Procedure, “I don’t
understand why the change from Tyson to Erie is so significant” is a great
question. “What is the reading for tomorrow again” is not.

VIII. Grading Policy

I have to grade on a curve. Them’s the rules. Grades will be based on


your performance on a final exam. I reserve the discretion to upwardly
adjust by one level (e.g., B+ to A-) the final exam grade for no more than a
very small subset of students that have exhibited strong oral participation
throughout the semester.

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

SYLLABUS

* Please note that I will update this syllabus periodically, so that I do not have to predict
where we will be, two months into the future. Check the date stamp on the bottom to make
sure that you have the most recent version. I will alert you in class and over email when I
post a new version.

TOPIC DATE CASEBOOK PAGES OTHER READINGS


(required unless
otherwise indicated)
Introduction: DONE 241-54 (incl. Marbury v.
Marbury v. Madison Madison)
and the Role of
Adjudication
Justiciability
Standing
Introductory Note DONE 254-56
Constitutional DONE 256-79 (incl. Allen v. Wright) SUPPLEMENT 33-34
Constraints Note 3A (Note on
(Injury in Fact) Standing and Remedy)
Congressional DONE 281-96 (incl. Lujan v. Defenders SUPPLEMENT 35-39
Power to Confer of Wildlife) Note 6 (Spokeo v.
Standing Robbins), Note 7
(“Prudential” Limitations
on Standing”), Note 8
(State Standing
Generally)
Taxpayer Standing DONE 297-319 (incl. Hein v. Freedom
From Religion Foundation)
Third Party DONE 347-58 (incl. Singleton v. Wolff) SUPPLEMENT 55 Insert
Standing w/r/t Note 3
Quasi-Standing
Doctrines
(Prudential
Standing)
Ripeness DONE 360-73 (incl. Poe v. Ullman; notes SUPPLEMENT 55-56
1, 2, 7, 8 only) Note 6A (Ripeness and
Standing Revisited)
Mootness DONE 373-78
Political Questions DONE 410-31 (incl. Nixon v. United
States and Zivotofsky v. Clinton)
Congressional
Authority to
Regulate Article III
Judicial Power
Introduction DONE 435-40
Power to Limit
Jurisdiction of
Article III Courts
Limits on DONE 440-45 (incl. Ex parte McCardle, SUPPLEMENT 61 Insert
Supreme Court through end of note 2); 450-52 w/r/t Note 3
Appellate (note 5); 455-57 (note 3)
Jurisdiction

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

Limits on DONE 445-50 (notes 3 and 4); 451-54


Original (notes 6 through 8 on
Jurisdiction of TRADITIONAL VIEW, notes 1
and 2 on COMPETING VIEWS);
Lower Article III
457-61 (notes 4 through 8); 481-
Courts and on
85 (notes 1 and 2)
Jurisdiction of
all Article III
Courts
Established Bases of
Subject Matter
Jurisdiction in the
Lower Article III
Courts
Federal DONE 583-85; 588-99 (incl. Grable &
Question Sons Metal Products, Inc. v.
Jurisdiction Darue Engineering &
Manufacturing)
Diversity DONE 629-37
Jurisdiction
Power to Expand DONE 490-512 (incl. Textile Workers SUPPLEMENT 62-63
Original Union v. Lincoln Mills) Insert w/r/t bottom of
Jurisdiction of Book page 507
Lower Article III
Courts
Power to Create Non- DONE 513-31
Article III Courts
Part I
Power to Create Non- DONE 531-46 (incl. Stern v. Marshall); SUPPLEMENT 63-66
Article III Courts 549-53 (notes 3 through 5) Note 2 (The Effect of
Part II Party Consent)
Supreme Court
Review of State
Court Decisions
Generally DONE 70-84 (incl. Indiana ex rel.
Anderson v. Brand)
Adequate and DONE 88-101 (incl. Michigan v. Long)
Independent State
Grounds
Rules of Decision in
the Federal System
State Law in Federal DONE 1-16 (incl. Erie Railroad Co. v. SUPPLEMENT 1-2 Insert
Court Thompkins; stop after note 5.iii) w/r/t Note 5(iii)
Federal Law in State DONE 30-41 (incl. Johnson v. Fankel;
Court trailing note 1 only); 43-46; 61-65
Federal Common DONE 103-14 (incl. United States v.
Law Little Lake Misere Land Co., Inc.;
through trailing note 4); 119-29
(incl. Boyle v. United
Technologies Comp.)
Implied Obligations
and Remedies
For Statutory DONE 141-53 (incl. Cort v. Ash); 164-66 SUPPLEMENT 9 Note 3A
Rights (note 3) (Implied Public Rights of
Action)

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

For Constitutional DONE 167-77 (incl. Bivens v. Six


Rights I Unknown Named Agents of
Federal Bureau of Narcotics;
through Note on Bivens)
For Constitutional DONE 189-95 (through note 3) SUPPLEMENT 10-30
Rights II (Inc. Ziglar v. Abbasi)
Customary DONE 197-204 (through note 8); 205-06
International Law I (note 10)
Customary DONE 207-22 (incl. Sosa v. Alvarez-
International Law II Machain; through note 2); 228-39
(incl. Kobel v. Royal Dutch
Petroleum Co.)

Sovereign and
Official Immunity
Basics of Sovereign 3/13 (1 1027-39 (incl. Ex parte Young;
Immunity and hour) through note 2); 1042-43
Officer-Suit Fiction
Limitations on 3/15 (2 1043-53 (incl. Edelman v. SUPPLEMENT 161-167
Officer Suit Fiction hours) Jordan); 1054-55 (note 2); 1058- (Note 1A and Notes on
59 (note 7); 1060-62 (note 2) Federal Sovereign
Immunity)
Consent and
Abrogation
Abrogating 3/15 (2 1062-66 (only notes 1, 3, 7); 1066-
Authority by hours) 91 (incl. Seminole Tribe of
Reference to Florida v. Florida; through
trailing note 2); 1097-99 (note 1)
Constitutional
Provision I
Abrogating 3/27 (1 SUPPLEMENT 167-78
Authority by hour) (Inc. Armstrong v.
Reference to Exceptional Child Center
and trailing notes)
Constitutional
Provision II
Abrogation under 3/29 (2 1097-1112 (incl. Coleman v. Court
§ 5 of the hours) of Appeals of Maryland)
Fourteenth
Amendment
18 U.S.C. § 1983
“Under color of 3/29 (2 1139-52 (incl. Monroe v. Pape)
law” hours)
Official 3/29 (2 1158-69 (incl. Scheuer v. Rhodes;
immunities— hours) through note 5); 1172 (note 7);
Geenrally 1210-11 (note 1); 1213-15 (note 4)
Qualified 4/3 (1 1176-82 (incl. Brosseau v. SUPPLEMENT 179-80
Immunity—clearly hour) Haugen); 1184-85 (note 2) Notes 3 and 4
established law
Inter-System
Preclusion and
Abstention
Statutory and
Common Law
Abstention Doctrines
Introduction 729-31

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FEDERAL COURTS * PROFESSOR LEE KOVARSKY * SPRING 18

Younger 731-48 (including Younger v.


Abstention Harris)
Pullman 768-73 (through note 1 on Notes
Abstention on Administration of Pullman
abstention)
Burford 778-84
Abstention
Rooker-Feldman 796-81
Anti-Injunction 810-21 (incl. Atlantic Coast Line
Act Railroad Co. v. Brotherhood of
Locomotive Engineers)
Habeas Corpus
(Post-Conviction)
Introduction K&G 2-3;, 119-41 (incl.
Brown v. Allen)
(BLACKBOARD)
Procedural K&G 169-73
Restrictions— (BLACKBOARD)
Generally
Procedural K&G 173-91 (incl. Rose v.
Restrictions— Lundy) (BLACKBOARD)
Exhaustion
Procedural K&G 202-29 (incl.
Restrictions— Townsend v. Sain and
Procedural Default Martinez v. Ryan)
(BLACKBOARD)
Procedural K&G 244-66 (incl.
Restrictions— McCleskey v. Zant)
Successive (BLACKBOARD)
Petitions
Procedural K&G 266-97 (incl.
Restrictions— Holland v. Florida)
Statute of (BLACKBOARD)
Limitations
“Merits” Process— K&G 299-318 (incl.
Intro and Teague v. Lane)
retroactivity (BLACKBOARD)
precursor
“Merits” Process— K&G 318-39 (incl.
28 U.S.C. § Williams v. Taylor)
2254(d)(1) I (BLACKBOARD)
“Merits” Process— K&G 339-58 (incl. Cullen
28 U.S.C. § v. Pinholster)
2254(d)(1) II (BLACKBOARD)
 

Date Stamp: 03.21.18 8

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