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Monday, November 25, 2019

Organizing Fed Courts

My Fed Courts class ended this week. For the second straight year, I ran out of time and was unable to reach the last section, on  Congressional Control over the Federal Courts; this covers Klein and Plaut, as well as the fun theoretical stuff on jurisdiction-stripping, court-packing, etc.

After the jump is the broad strokes of my syllabus. I would welcome thoughts of what I can or should cut to give me the two days I would need to include this final section. Or, alternatively, is the congressional control stuff the least important and it falling by the wayside, while unfortunate, is less problematic than if I skipped something else.

By way of background, I teach Fed Courts as (in the words of one former student) "the love child of Con Law and Civ Pro." It is a federal-court litigation course, interspersed with some constitutional and judicial theory.

Introduction: Broad strokes of the text of Art. III and the broad structure of the federal judicial and judicial decisionmaking.

SCOTUS Jurisdiction: Original; § 1257; § 1254

Ct App Jurisdiction

District Court Jurisdiction: Federal Question (including Grable); Complete Preemption; ATS

Non-Article III Jurisdiction: Magistrates, Bankruptcy, CAAF

11th Am

Justiciability: Standing/Ripeness/Mootness


I added Non-Article III a few years ago. It takes about 1-1 1/2 days, so it could go and leave most of the additional time I need. But I thought (and think) is is too important, given how much more decisionmaking is done by non-Article III actors. I also used to spend less time on 11th Amendment, which I cover in Civil Rights. But I have no guarantee students will take that course and I believed they needed fuller coverage.

Just to clarify: We get to the basics of congressional control--the difference between the source of SCOTUS power as opposed to lower-court power, for example. We do not get to things like the Hart-Wechsler debate, the stripping debates of the 1980s, court-packing, and the various recent  proposals to change SCOTUS structure--in other words, the fun, theoretical, and not likely to happen stuff.


Posted by Howard Wasserman on November 25, 2019 at 11:44 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink


I updated the OP slightly in a way I think clarifies my thinking in response to Philip's comment: The stuff we are not getting to is mainly the deep-theory stuff that scholars discuss but that rarely comes up in practice.

Posted by: Howard Wasserman | Nov 27, 2019 8:11:07 AM

I should have made this clearer in the post: I stole this organization from Janet Alexander (Stanford) when I picked up the course about 12 years ago. The structure, roughly, is: 1) Power the courts do have; 2) Judicially imposed limits on that power; and 3) Congressionally imposed limits on that power.

That is why jurisdiction-stripping and structural games is at the end--that and Janet suggested, rightly, this is the highly theoretical stuff that many students are not ready for at the start of the course.

You are right that Non-Article III is the most obvious thing to go--it is a relatively recent addition to the course. But there is a practical question of what the course is prepping students to do. To the extent my graduates are going to be practice in federal court, they are going to be dealing with magistrates and bankruptcy judges more than congressional attempts to dictate case outcomes.

Posted by: Howard Wasserman | Nov 27, 2019 8:04:05 AM

To the extent that the theme of the course is that which restricts a federal court's ability to exercise power, I consider the material on Congressional control to be essential. Indeed, I would place it on the front end (rather than the back end) of the course.

Along those lines, I think that you can do without the coverage of the non-Article III tribunals. It's interesting and important material, but it doesn't quite fit with the overall theme.

Posted by: Philip Pucillo | Nov 26, 2019 11:56:04 PM

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