Federal Courts Exam 2026: Data Center Nuisance Suit; Habeas Corpus; and Sovereign Immunity
[N.B. My latest Verdict column discusses the "Anti-Weaponization Fund" that Attorney General Blanche announced as part of the settlement of the Trumps' frivolous lawsuit against the IRS. Among other things, I suggest how a future Congress might amend the statute that authorizes the executive branch of government to settle lawsuits to prevent future abuses by a future shamelessly avaricious and corrupt president, should we be so unfortunate as to experience another one. Now the exam.]
Below you will find the exam I gave my federal courts students in the semester just concluded. They were permitted to consult their casebooks and notes but not the Internet, AI, or the like and were subject to a 4-hour time limit and a 2,500-word limit.
Question 1 (30 percent)
After holding hearings at which are recounted incidents reflecting popular hostility to AI data centers—very large installations of computers used to train and/or run artificial intelligence models—Congress passes and President Trump signs the Protecting American Competitiveness Against Foreign Threats And Domestic Luddites Act (PACAFTADLA). It includes the following in its Findings:
The race to build artificial general intelligence is a race to control the future. American companies must not lose their advantage relative to foreign competitors. Bureaucratic red tape, unlawful protests, and nuisance litigation against such companies undermine American competitiveness.
The original version of PACAFTADLA introduced in the House of Representatives included a provision that would have preempted most state law causes of action against AI data centers, but in order to secure passage from key members of Congress, that language was stripped out during negotiations with the Senate. As a consequence, PACAFTADLA as finally enacted contains two operative provisions. One of them makes it a crime to “interfere, except through First-Amendment-protected speech, with the operation of an AI data center that is operated by or on behalf of an American-owned and operated company led by a human being.” The other operative provision, which is at issue here, states:
A civil action against or directed to an American-owned and operated company led by a human being and alleging harms arising out of that company’s operation of an AI data center may be removed by the defendant(s) to the district court of the United States for the district and division embracing the place wherein it is pending so long as the notice of removal includes as an attachment an affidavit signed by the Chief Executive Officer of the defendant company swearing or attesting that such Chief Executive Officer is a human being and not an artificial intelligence.
Sylvia Puddingsworth owns and lives on 30 acres of land in El Dorado County, California, on which she operates a yoga and wellness center. Google recently purchased an adjoining 1,200-acre parcel and issued a press release announcing “tentative plans” to construct a massive AI data center that would begin operating in mid-2027. Puddingsworth sued Google in state court in San Francisco, alleging that the planned AI data center constitutes a nuisance under California law because it would create unreasonable levels of noise and pollution. She sought an injunction against the construction and operation of the data center. Google removed the case to the U.S. District Court for the Northern District of California pursuant to the removal provision of PACAFTADLA. Its removal notice included as an attachment an affidavit of Google CEO Sundar Pichai attesting that he is a human being. (Pichai is also the CEO of Alphabet, Google’s parent company. Both Google and Alphabet are incorporated in Delaware and headquartered in Mountain View, California.)
Puddingsworth filed a motion to remand to state court on the ground that there is no jurisdiction in federal court. Google opposed the motion. Federal District Judge Jacqueline Scott Corley held a hearing on the motion. Below is an excerpt of the oral argument transcript. Seana Dutton represented Puddingsworth, while Elliott Lancaster represented Google:
THE COURT: Do you contest the fact that Google is an American owned and operated company that is led by a human being?
MS. DUTTON: We do not, your honor.
. . .
THE COURT: Your company’s press release describes tentative plans to build the data center in El Dorado County. How tentative?
MR. LANCASTER: I would say it’s about 95 percent certain. There’s a very slight chance we might use the site instead for Waymo testing or possibly as a corporate retreat site for Google and Alphabet executives. Or we could resell it. There’s also a parcel we’re negotiating for in Missouri for a data center but . . . .
THE COURT: How did you arrive at the 95 percent figure?
MR. LANCASTER: Just a ballpark estimate. We don’t even have title to the Missouri land, and even if we get it, there’s a big advantage to California because it’s closer to corporate headquarters. And we need more data centers. Plus, I’ve seen the architectural plans for El Dorado, so yeah, very likely. About 95 percent.
. . .
THE COURT: I have before me the remand motion, but I also have on file your answer to the complaint. You don’t appear to raise any federal defenses. Is that correct?
MR. LANCASTER: Yes, your honor, but it’s possible we could amend the answer to raise one.
THE COURT: What defense?
MR. LANCASTER: Oh, I don’t have a particular federal defense in mind. I thought you might be suggesting one, in which case we’d be happy to amend to include it if it’s non-frivolous.
THE COURT: It’s not my job to help attorneys representing multi-trillion-dollar companies. So your answer then is no?
MR. LANCASTER: That’s correct at this time. But I would note that PACAFTADLA doesn’t require a federal defense for removal. Now, if I may turn to plaintiff’s suggestion that . . . .
You are a law clerk to Judge Corley. She has asked for your assessment of whether to grant the motion to remand to state court. Write the analysis and conclusion portions of a memo to her.
Question 2 (30 percent)
Steven Jones is arrested and charged in Myrontana state court with having murdered Grace Vincent. Unable to afford an attorney, Jones is assigned public defender Ron Overby. The state maintains an open files policy. Overby inspects the files during a lunch break on another case. He sees the following items: photographs of the crime scene; a photograph of an evidence bag containing some pieces of broken glass from a window in Vincent’s home; a police report by Detective Gretchen Hughes; a coroner’s report concluding that Vincent was killed by multiple gunshots; and a statement given to the police by Vincent’s next-door neighbor, 82-year-old Sam Oldman, who said that he heard a woman’s voice screaming coming from Vincent’s house and then less than a minute later saw Jones fleeing the scene. Overby comes to the preliminary assessment that the state’s case against Jones is weak because the only evidence that implicates him is Oldman’s statement. Overby negotiates a deal for Jones whereby he would plead guilty to manslaughter and serve a six-year sentence. However, Jones refuses the deal, insisting on his innocence.
At trial, the prosecution first offers testimony of Detective Hughes. She describes the broken window as “the likely entry point used by the killer.” The prosecution next offers Oldman’s testimony. The prosecutor asks Oldman how he knows that Jones was the person he saw running from Vincent’s house. Oldman says he recognized Jones because he had served Jones on multiple occasions at the soup kitchen at his church. On cross-examination, Overby asks Oldman how old he is. Oldman truthfully answers that he is 82. Overby also asks Oldman whether the light was good on the night of the murder. “Yes,” Oldman says. “There was a full moon.”
Jones testifies that on the night of the murder he was home watching a football game but admits on cross that no one was with him. The jury deliberates for three hours and returns a conviction. Jones is sentenced to thirty years in prison. Overby briefs and argues the appeal, contending that there was insufficient evidence as a matter of law. The appeals court rejects the appeal on two grounds: “(1) Appellant waived the argument by failing to move to dismiss at the close of the evidence; and (2) in any event, the evidence was sufficient.”
Under Myrontana law, the first opportunity for a defendant to appeal a conviction based on a claim of ineffective assistance of trial counsel is on state collateral review. Pursuant to the public defender office policy, the case is assigned to another public defender, Janice Underhill, for the sole purpose of filing a state collateral review petition arguing that Overby had provided Jones with ineffective assistance of trial counsel. Underhill contends on collateral review that Overby was ineffective in failing to preserve the sufficiency of the evidence objection. The state court rejects this contention, as does the appeals court.
Soon thereafter, Jones unexpectedly inherits approximately $500,000 from an uncle who died without other heirs. Jones then hires private attorney Ace Freedson to represent him. Freedson goes to the District Attorney’s office to review the Jones file. He inspects the picture of the glass shards closely and notices specks of red that he surmises are blood from the killer. He asks the Assistant D.A. who prosecuted the case whether the state still has the glass shards in its evidence room and whether they were ever tested for DNA and blood type. The prosecutor says the shards are still there but haven’t been tested. The prosecutor tells Freedson that Jones can get them tested at his own expense if he chooses.
Jones pays to have the shards tested and his own blood drawn. The laboratory report confirms that the substance on the shards is blood and that the DNA does not match Jones’s DNA. It also confirms that the blood on the shards is type O negative, whereas Jones is type AB positive. Freedson then files a motion in the Myrontana trial court for a new trial. The motion is rejected by the trial judge, whose one paragraph opinion states that “the new evidence would not have changed the outcome of trial because the blood on the window could have ended up there at any date before the murder, or perhaps Jones had an accomplice.” The state appeals court affirms without opinion.
Nearing the end of the one-year statute of limitations period, Freedson files a habeas corpus petition on behalf of Jones in Federal District Court for the District of Myrontana. You are an associate in Freedson’s small but prestigious firm. Freedson provides you with the foregoing information. He asks you for a memo addressing the question whether via the federal habeas petition Jones can obtain his freedom or a new trial based on the blood shard evidence. Freedson wants to argue that Overby provided ineffective assistance of trial counsel in failing to seek testing of the blood on the shards and that Underhill provided ineffective assistance of counsel in omitting that particular ineffective assistance of trial counsel claim from the state collateral review petition. Freedson also wants to contend that Jones is “actually innocent” of the murder for which he was convicted. Freedson has hired a crime scene investigator who is prepared to testify that based on the crime scene photos, the person whose blood is on the shards is almost certainly the murderer. Write the analysis and conclusion portions of the memo.
Question 3 (40 percent)
You are an aide to Representative Jamie Raskin, who is the ranking (i.e., senior Democratic) member of the House Judiciary Committee and a former constitutional law professor. As you may know, a Republican member of the committee, Representative Chip Roy of Texas, is the principal sponsor of the Safeguard American Voter Eligibility (SAVE) Act, which has passed the House but has stalled in the Senate. The SAVE Act would require specified proof of U.S. citizenship for voting in federal elections. It provides for various civil and criminal penalties for persons, including government officials, who violate the Act.
Representative Roy recently circulated a new bill that contains all of the provisions of the SAVE Act as well as the following additional provisions:
Section 2(l): This Act waives and abrogates state sovereign immunity pursuant. Waiver is authorized by Congress’s powers set forth in Article I, Section 4. Abrogation is permissible under any of the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, each of which restricts voting rights to citizens. Any U.S. citizen who is a registered voter residing in an electoral district in which any aliens are permitted to register and/or vote in violation of this Act may sue the State in which that citizen resides for the greater of actual damages or $5,000 per alien permitted to register and/or vote.
Section 2(m): In the event that a federal court rules that Section 2(l) of this Act unconstitutional, the United States shall be empowered to bring an action against a State for the same damages that would otherwise be available as described in Section 2(l). The United States may elect to bring such suit in any federal district court in the State in which the violation is alleged or before the hereby-created SAVE Act Commission consisting of the Attorney General (or acting Attorney General), the Chair of the Federal Election Commission (FEC), and the Chief Justice of the United States acting as a special commissioner. Actions before the SAVE Act Commission shall be governed by the Federal Rules of Civil Procedure to the extent practicable. If the United States sues before the SAVE Act Commission, notwithstanding any other provision of law, its determinations shall be final, except with respect to questions of constitutional law, as to which an appeal may be taken to the U.S. Court of Appeals for the D.C. Circuit. Notwithstanding any other provision of law, the D.C. Circuit’s ruling on any such appeal shall not be reviewable by any other court.
Representative Raskin asks for your assessment of the constitutionality of the new provisions that Representative Roy has circulated. In writing your assessment, it may be useful to know that by law the FEC comprises six members, three Republicans and three Democrats. However, currently there are only two members and thus the FEC lacks a quorum to conduct its ordinary business. The current FEC Chair is Democrat Shana M. Broussard.
-- Michael C. Dorf