by Michael C. Dorf
In keeping with my usual custom, below I set forth the exam I administered to my Federal Courts students last week. They did very well. I'm done grading the real exams, so I won't grade (although I welcome) answers in the comments. As usual, the exam was an open-book take-home that students were given 8 hours to complete, with a total word limit of 2500. Enjoy!
Question 1 (30 percent)
Concerned about the erosion of federal civil rights, Representative Alexandria Ocasio-Cortez introduces a bill in Congress titled the U.S. Civil Rights Restoration Act. It passes on a party line vote in the House of Representatives but dies in the Senate when a vote for cloture fails. New York Assembly member Nathalia Fernandez picks up the gauntlet and introduces a bill that covers much the same ground in the New York legislature. Titled the New York Civil Rights Restoration Act (NYCRRA), it includes the following key provision:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of New York State or the United States subjects, or causes to be subjected, any person within the State of New York to the deprivation of any rights, privileges, or immunities secured by the Constitution or laws of New York or the United States, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. No defense of absolute, qualified, or any other form of immunity shall be available in an action under this statute.
In introducing NYCRRA, Assemblywoman Fernandez makes the following statement: “The Supreme Court of the United States has, in recent years, all but eliminated Bivens actions against federal officers for violation of civil rights. This bill restores critical civil rights pursuant to the state’s power to afford remedies for violations of state and federal rights.” The New York State Assembly and Senate pass and Governor Cuomo signs NYCRRA, which takes effect immediately.
Meanwhile, the FBI has been conducting an investigation into whether former New York City Mayor and personal attorney of former President Trump, Rudy Giuliani, violated federal lobbying laws on behalf of clients in Ukraine. After passage of NYCRRA and as part of that investigation, the FBI receives a tip that a former translator to Giuliani—Ukrainian-born naturalized U.S. citizen Pavel Parna—is shredding large numbers of documents in his Manhattan apartment. Believing that these exigent circumstances leave no time to obtain a warrant without risking further destruction of evidence, a team of FBI agents demands and then forces entry into Parna’s apartment. They do not find any document shredding occurring. Instead, they discover Parna working out on an elliptical trainer that makes noises similar to those of a paper shredder. The agents who enter the apartment apologize to Parna for “the misunderstanding” but not before FBI agent (and U.S. citizen and resident of Astoria, Queens) Daniela Duschamps accidentally knocks over and breaks a ship-in-a-bottle that Parna had built from a hobby kit and that had been sitting on a coffee table in Parna’s living room. “Oh no!” exclaims Parna, “not the USS Kiev!” Duschamps apologizes profusely to a visibly upset Parna. No criminal charges are brought against Parna, who then sues Duschamps in federal district court, invoking causes of action under Bivens and NYCRRA. The complaint alleges damages in the amount of $1,000,023.50 ($1 million for emotional distress from the allegedly unlawful search plus $23.50 for the value of the ship-in-a-bottle). The alleged grounds for jurisdiction are “28 U.S.C. §§ 1331, 1367, and/or 1442.”
Although the lawsuit is against Duschamps in her individual capacity, the U.S. Department of Justice (DOJ) is interested in the case, including for the purpose of determining whether Attorney General Garland should make the certification described in 28 U.S.C. § 2679(d) and discussed in note 9 on page 1055 of the Hart & Wechsler casebook. You are an intern in the DOJ. Your boss asks for a memo setting forth and evaluating the best arguments that Duschamps can make to have the case dismissed from federal court without a trial and likewise setting forth and evaluating the best responses available to Parna. Write the memo.
Question 2 (30 percent)
In response to widespread criticism of developed countries for hoarding vaccines during the COVID-19 pandemic, the United States and every other United Nations member country enter into a multilateral treaty, the Convention on Global Health (CGH). The treaty provides, among other things, that “whenever a state of global health emergency shall be determined to exist by the World Health Organization (WHO), each signatory country undertakes to make life-saving vaccines available to countries in need without regard to intellectual property rights.” The treaty also creates a “World Health Court” (WHC) staffed by seven infectious disease experts appointed to staggered seven-year terms by the Director-General of the WHO, except that the initial terms are of varying lengths. The initial seven members include one U.S. citizen, Dr. Anthony Fauci, who is appointed to a four-year term. The treaty states that all signatory countries shall undertake to harmonize their intellectual property law with the CGH, subject to “final rulings by the WHC.”
After President Biden signs and the Senate ratifies the CGH, Congress enacts the Convention on Global Health Implementation Act (CGHIA), which provides: “In the event that the WHO declares a global health emergency, U.S. courts will ensure compliance with the treaty by declining to enforce intellectual property rights in needed life-saving vaccines and shall accept as binding and final any relevant determinations of the World Health Court.”
In 2023, the WHO declares a global health emergency when melting permafrost unleashes an influenza pandemic. Scientists for U.S.-based pharmaceutical company Pfizderna quickly develop a highly effective vaccine. Pfizderna sells the U.S. government enough doses to vaccinate every person living in the United States. Pfizderna also announces that it will not seek to enforce its intellectual property rights in the vaccine “in the developing world.” However, Pfizderna also announces that “competitors must pay a licensing fee” if they wish to produce the vaccine for use “in wealthy countries.” German-based pharmaceutical company Shmerck seeks and obtains a declaration from the WHC: (a) confirming that a global health emergency exists; and (b) determining that Shmerck need not pay a licensing fee to Pfizderna for any of the vaccine doses it produces, including those to be distributed in the European Union. Two WHC members, including Dr. Fauci, dissent from part (b) on the ground that Germany and other EU nations are not “countries in need” within the meaning of the CGH.
Pfizderna sues Shmerck in federal district court in the Northern District of California (where Shmerck’s U.S. affiliate is based), seeking declaratory, injunctive, and monetary relief, pursuant to Pfizderna’s patent in its vaccine. Shmerck’s pre-answer motion to dismiss for failure to state a claim and/or claim and/or issue preclusion asserts that “U.S. courts are bound by the determination of the WHC.” Pfizderna’s response to the motion states that “while U.S. courts may give respectful consideration to the determinations of the WHC, the Appointments Clause, Supremacy Clause, and Article III forbid the outsourcing to external non-Article III bodies the task of authoritative determinations of U.S. law, including treaties and statutes implementing them.” It goes on to argue that, in light of the “countries in need” language and the travaux préparatoires for the CGH, neither the CGH nor the CGHOA, properly construed, displaces Pfizderna’s intellectual property rights in a case involving German manufacture of vaccine doses for the EU.
You are one of two law clerks to the federal district judge to whom the case is assigned. The judge has asked the other law clerk to evaluate the countries-in-need/travaux préparatoires arguments in the event that it is necessary to independently construe the treaty and/or the CGHIA. The judge asks you to write a memo limited to the question of whether to undertake such an independent interpretation of the treaty and/or the CGHIA or whether, instead, to simply accept the WHC’s determination as binding. Write the memo.
Question 3 (20 percent)
In his dissent in Montgomery v. Louisiana, Justice Thomas identified what he called “a modest path” by which states could lessen the burdens the majority opinion imposed: they “can stop entertaining claims alleging that th[e] Court’s Eighth Amendment decisions invalidated a sentence, and leave federal habeas courts to shoulder the burden of adjudicating such claims in the first instance.” Is he right? Why or why not? In your answer, be sure to discuss relevant arguments and counter-arguments, including the implications, if any, of the Madisonian compromise and the Suspension Clause.
Question 4 (20 percent)
President Biden has created a Presidential Commission on the Supreme Court of the United States and tasked it with, among other things, analyzing “the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” One such proposal would prospectively limit Supreme Court justices to one 18-year term each, after which they would serve (if they so choose) on the U.S. Court of Appeals. Would a federal statute adopting that proposal be constitutional?
End of Exam
Postscript: Bonus points to any reader who can identify the significance of the ship in a bottle valued at $23.50 in Question 1.