Monday, May 14, 2018

Fed Courts Exam 2018 Features Foreign Sovereign Immunity, International Arbitration, Jurisdiction Stripping, AEDPA, and More!

by Michael Dorf

Per my usual custom, I present the exam I administered to my students after the recently concluded
semester. Submit your answers in the comments, but unless you paid tuition, don't expect me to grade them.

Question 1

On April 20, 2018, the Democratic National Committee (DNC) filed a lawsuit in federal district court in the Southern District of New York against the Russian government, two arms of the Russian government, three foreign nationals (Azerbaijani-Russian billionaire Aras Agalarov, his son, pop singer Emin Agalarov, and Australian-born WikiLeaks founder Julian Assange), Wikileaks, the 2016 Trump for President campaign, six individuals who were part of or assisted the Trump campaign and/or Trump administration (Donald Trump, Jr., Paul Manafort, Roger Stone, Jared Kushner, George Papadopoulos, and Richard Gates, but not President Trump), and ten unnamed “John Doe” defendants. The lawsuit includes seven counts of civil liability under various federal statutes, one count under a Washington, D.C. statute, three counts under Virginia common law, and one count under a Virginia statute. The prayer for relief seeks compensatory and punitive damages as well as declaratory and injunctive relief. You can view the complaint here but you need not (and probably should not) spend too much time studying it in order to succeed on this exam.

[The foregoing is all real. Now for the fake news:]

On May 1, 2018, Congress passed the Protect America From Frivolous And Political Lawsuits Act (PAFFAPLA). (To overcome a Democratic filibuster, Senate Republicans deployed the “nuclear option” to eliminate the requirement of 60 votes for cloture for ordinary legislation.) President Trump signed it the same day. As relevant here, PAFFAPLA provides:
Sec. 1.  No court in the United States shall have jurisdiction to entertain any lawsuit that names any foreign government for acts alleged to have been committed in connection with a U.S. presidential election. This Act shall apply to any lawsuit pending on or after the passage of the Act. 
Sec. 2.  Notwithstanding any other provision of law, the provisions of Section 1 shall apply to any lawsuit that fell within the terms of this Act when the Act was enacted, even if the plaintiff(s) sought or seeks to amend the lawsuit to drop the foreign government as a defendant. 
Sec. 3.   Notwithstanding any other provision of law, any dismissal of a lawsuit as described in Section 1 or 2 sought by the plaintiff(s) shall be with prejudice as to all defendants originally named in the lawsuit. 
Sec. 4.  A lawsuit that falls within the description of Section 1 shall be transferred to the jurisdiction of an arbitral tribunal consisting of three members. One member shall be designated by the plaintiff(s). (If more than one plaintiff sues, then the plaintiffs shall jointly decide on their designee.) The second member shall be designated by the chief executive of the foreign government named in the lawsuit. (If more than one foreign government is named in the lawsuit, then the foreign governments shall jointly decide on their designee.) The third member shall be designated by the Prime Minister of Canada. Members of the arbitral tribunal shall be compensated for their expenses and work at a fair and reasonable rate, with such compensation to be paid by the losing party or parties. 
Sec. 5.  The arbitral tribunal as constituted per Section 4 shall adjudicate all questions of law and fact, following the provisions of the Federal Rules of Civil Procedure to the extent practicable. It shall issue findings of fact and conclusions of law. It also can order monetary, declaratory, and/or injunctive relief. 
Sec. 6.  A judgment by the arbitral tribunal shall be enforceable in U.S. courts to the same extent as a judgment of a state court. 
Sec. 7.  In the event that this Act or any part thereof is found unconstitutional on its face or as applied, every application, provision, and word of this Act shall be severable—except that if the Act is found unconstitutional on its face or as applied on account of its failure to provide for judicial review of arbitral tribunal judgments, such judgments shall be reviewable by the filing of an original action in the district court in which the lawsuit was first filed. The district court, in reviewing any judgment of an arbitral tribunal in such circumstances, shall affirm that judgment unless facts found therein are contrary to the indisputable character of the evidence or the decision was contrary to or an unreasonable application of clearly established law. Notwithstanding any other provision of law, no appeal from the district court shall be available in any other court.
Following the enactment of PAFFAPLA, Russian President Vladimir Putin names his ambassador to the U.S., Sergey Kislyak, as the Russian member of the arbitral tribunal. In a statement accompanying that designation, Putin adds that “I am taking this action as a gesture of good will, but of course the Russian Federation and its agencies are completely innocent and, in any event, are protected by foreign sovereign immunity.” Russia thereupon files a motion to “dismiss and/or transfer” the lawsuit from the SDNY to “a duly constituted arbitral tribunal.” Lawyers for the DNC oppose the motion on the ground that PAFFAPLA is unconstitutional. They do not designate a member of the arbitral tribunal “pending resolution” of the motion.

  Canada has not yet decided how to respond. You are a U.S.-based attorney working for the Canadian Consulate in New York. Prime Minister Justin Trudeau will consider the political and diplomatic ramifications of any course of action he follows, but before doing so, he needs help understanding U.S. law. Write a memorandum to PM Trudeau explaining the key issues and how they will likely be resolved.

Question 2

Myrontana is a state of the United States, located in the 12th Circuit. Late one night, Deirdre Dougan and Penelope Pilsbury got into a fight at Bleachers, a popular sports bar in downtown Capital City, Myrontana. As a result of the fight, Dougan suffered minor injuries, while Pilsbury suffered a concussion and other severe injuries requiring over five hours of plastic surgery to repair fractures of bones in her face. Police, who were called to the scene, arrested Dougan (who is an amateur boxer) and charged her with aggravated assault.

Dougan pleaded not guilty. At trial, the prosecution called bartender James Washington, who testified that he saw “a scuffle and then Deirdre threw a haymaker that flattened Penelope.” Under cross-examination, however, Washington admitted that because of the crowd at Bleachers that night, he did not see or hear what happened between Dougan and Pilsbury until a couple of seconds before the punch.

After the completion of the state’s case, Dougan’s attorney offered a defense of self-defense. Dougan testified that she and Pilsbury had been arguing over whether the Capital City Crocodiles should fire their head coach when, according to Dougan, Pilsbury
deliberately spilled her beer on my shoes. I said “hey, whadidya do that for?” She said “piss off.” So I got right up in her face and told her to piss off. She shoved me, so I shoved her back. Then she reaches into her waistband and I see she has a gun. So I decked her.
Dougan’s attorney also called Stephen Jefferson as a witness, who testified to the same version of events as Dougan. No additional evidence was offered to corroborate that Pilsbury was armed, but Myrontana law allows any adult not on probation or parole to carry a gun in any place of public accommodation.

Under Myrontana law, a defendant in a criminal case who raises a defense of self-defense has the burden of proving that defense by a preponderance of the evidence. The jury was instructed accordingly and found Dougan guilty as charged. Judge Judith Joplin, who presided over the trial, sentenced Dougan to the maximum of ten years in prison. In so doing, Judge Joplin stated: “You are not a very ladylike person. Maybe now you’ll learn your lesson and start behaving more appropriately.”

On appeal to the Myrontana appellate division, Dougan’s attorney argued that Judge Joplin’s comments at sentencing reflected gender bias in violation of the Equal Protection Clause. The appellate division held that the comments were improper but that “any error was harmless in light of the overwhelming evidence and the gravity of the offense.”

After the appellate division ruled, the US Supreme Court handed down Clermont v. New York, in which it overruled Martin v. Ohio, 480 U.S. 228 (1987).* Under Martin, a state may place the burden of proving self-defense on a defendant in a criminal case without violating the Constitution. In Clermont, Justice Gorsuch wrote for the Court that, “in light of our recognition in Heller and McDonald that the Second Amendment codifies the right to self-defense, Martin can no longer stand. A defendant who introduces prima facie evidence of self-defense, with or without a firearm, can only be convicted of a crime if the government proves the absence of self-defense beyond a reasonable doubt.”

Based on the holding in Clermont, Dougan’s attorney filed a motion for reconsideration with the appellate division. The court denied the motion. In its entirety, the court’s order stated: “Defendant failed to object to the allocation of the burden of proof before or during trial. The objection is therefore waived.”

Dougan’s attorney then sought discretionary review in the Myrontana Supreme Court. That review was denied without explanation.

You are an attorney at Blume, Johnson & Weyble, which represents Dougan, who is currently incarcerated in the state penitentiary. She wishes to challenge her conviction and sentence by bringing a habeas corpus petition in federal district court, raising the equal protection and Clermont issues. Write a memo evaluating the likelihood of success, paying particular attention to the procedural obstacles that might stand in the way.

End of Exam

7 comments:

Brad said...

I'm glad I'm not in law school anymore!

Joseph Simmons said...

How much time do your students have for the exam?

Joe said...

Prof. Segall's tweets on the betting case were interesting -- important to note that the result was far from compelled even granting federalism precedents some might disagree with especially since even the dissent avoided engaging on the merits there.

Asher Steinberg said...

Results in Supreme Court cases are usually far from compelled, Joe, "even granting" the Court's existing precedents, which is to say, granting that they aren't overruled (in a case where no litigant suggested they should be). A decision against New Jersey would be just as uncompelled. Segall has always seemed to think it's a scandal that the Court makes constitutional decisions that the Constitution and precedent don't compel and that something besides the Constitution and precedent must compel their decisions if the Constitution and precedent don't. But that's like saying that if I argue that LeBron James is a better basketball player than Michael Jordan was, a view that obviously isn't compelled by the available evidence, though nothing compels the opposite view, my view must be based on something other than the merits -- some personal preference I have for how LeBron plays (which goes to whether he's more entertaining or enjoyable to watch, but not whether he's better), or his personality, or political activism. Of course that's a fallacy; my view is based only on the relevant evidence, it just isn't compelled by that evidence, like any view on this difficult and close question. So there is never anything interesting, much less important about the truism that the outcome of a hard case wasn't compelled.

Shag from Brookline said...

But for originalism, does SCOTUS speak (at times) with forked tongue? The legal theory of originalism (at least some versions) might be thought to "compel" SCOTUS decisions.

Shag from Brookline said...

Speaking of Eric, I note that Mike (I'm not Rappaport) Ransey over at the Originalism Blog has a post commenting on Eric's recent post at this Blog commenting on Larry Solum's article on surprises that originalism might provide. But Ramsey's comment is no surprise, although it isn't clear which of the myriad versions of originalism he has "faith" in. Let me once again note that Eric's posts at this Blog permit for comments while the Originalism Blog and Larry Solum's Legal Theory Blog do not.

Now if only we can get through this exam so Eric might turn his tweets into a post and while he's at it, respond to Ramsey's comment.

Joe said...

"Results in Supreme Court cases are usually far from compelled"

Platitudes are rarely wrong.

Moving past that, the majority opinion (with the dissent realizing it was a lost cause, perhaps, and pushing for a salvage operation -- we shall see this again) made it out as if it was obvious. Some cases are pretty obvious; that should be how "compelled" should be interpreted past the platitude.

In fact, many opinions are not much split at all. Here, the debate to me is somewhat hidden. Thus, my citation. Of course, one might think ES is always crying wolf, including regarding this law signed by Bush41 after being passed by a large margin. Then again, using Scalia rules, when it suits, perhaps that is a problem.

The coverage generally only stated what happened & the average reader very well might not realize that it wasn't so obvious. Repeatedly, this isn't the case. Repeatedly, coverage shows a matter is open to some degree of reasonable debate, with dissenting opinions on the merits referenced. Less so here. ES' comments (shared by some others) pointed to another view, including citing case law to point.