Power of the Court

Jurisdiction
Long-arm statute/statute establishing agent for service of process (GJ)
● “Goes to the limits of due process” or if it doesn’t, say that
Personal Jurisdiction - power over the parties - can be waived
A. General Jurisdiction
a. General Jurisdiction - Corporations
i. PPB
ii. Corp
iii. At-Home #3 - "extraordinary," doesn't apply in diversity - Footnote 19 - Daimler
b. General Jurisdiction - non corporate
i. Continuous and systematic contacts - Int’l Shoe
c. General Jurisdiction - Individuals
i. Domicile - Residence and Intent to stay indefinitely and if none, default to previous
B. Specific Jurisdiction
a. Before Ford, unilateral activity would negate specific jurisdiction
i. Foreseeability is not enough, must look at the conduct of the defendant
b. Ford
i. Minimum Contacts (purposefully availed itself of laws/protections and claims arise out of or
relate to contacts in forum)
■ Due Process (fair play and substantial justice)
c. Stream of Commerce
■ O'Connor - Asahi - Stream of Commerce plus (targeting of state) (likely satisfies Kennedy)
■ Brennan - Asahi - Stream of Commerce
■ Kennedy - McIntyre -"intent to submit" (conduct directed at the specific state)
■ Breyer/Alito - McIntyre - Ford test
■ Ginsburg - McIntyre - Targeting US as a whole, can sue in state where injury occurred
d. In rem, Quasi in rem 1 - Always sufficient contacts, due process
e. Quasi in rem 2 - Do regular minimum contacts/due process analysis; don’t count property as contact
f. Arguments against specific jurisdiction
■ Unilateral activity - foreseeability is not enough, must look at the conduct of the defendant
■ Intentional torts/Express aiming - libel and defamation only (intentional torts) - Calder
g. All-Purpose Jurisdiction
■ Tag
■ Scalia - Tag/no due process (traditional; not availment) - Burnham
 ■ Brennan - Tag + due process (fairness + availment) - Burnham
■ Consent/Waiver
■ Forum Selection Clauses - need egregious unfairness to overrule
■ Internet
■ Will never satisfy general
■ For specific need something more than a passive website (CompuServe)
Subject Matter jurisdiction (Fed Courts) - original or removal
A. Federal Question
a. Federal Question - the case at issue. "arising under" - at face of the complaint
■ Fed. Statute, Fed. Regulation, Constitution, or Treaty
b. State law w/ federal component
■ Complete federal preemption (patent law, securities?); state preemption (malpractice)
■ Artful pleading - Where π pleads only state law claim, but fed. law is controlling
■ Implied cause of action - not a defense, but part of plaintiff’s case
■ Test for whether fed question is embedded in a state law claim (all must be yes) Gunn factors
■ Necessarily raised - Multiple ways to address isn’t enough; have to talk about issue
■ Actually disputed - Usually yes
■ Substantial “to whole fed system” - rarely satisfied; outcome must impact fed system
■ Capable of resolution without disrupting the federal-state balance
B. Diversity
a. Jurisdictional amount
i. Over 75k - from complaint
1. Injunctions/non-monetary remedies can be counted if they have an economic impact
2. Depreciating/appreciating assets in value or is only a part
3. Punitive damages can only be up to 10x the compensatory damages
ii. Aggregation
1. If one plaintiff meets amount, other plaintiffs can be added on
2. Cannot aggregate against multiple defendants
3. Can aggregate claims by a single plaintiff against one defendant
iii. Amount not specific, can make an argument either way
b. Complete diversity across the "v"
i. Timing - Must have complete diversity at time of filing and removal (if not, defect in removal)
c. Coury v Prot - dual citizen must be domiciled in state opposite of π
i. If dual citizenship, you have to look at their US domicil, if they are domiciled abroad no
complete diversity, if domiciled in US, must be different state
 d. Removal
i. Non-removable claims by statutes
1. Can either sever the claims and keep federal claims or keep them all under
supplemental jurisdiction - Brown v. K-MAC
ii. Timing of removal - 30 days after receipt of complaint
iii. Timing of motion to remand - 30 days after removal
iv. One year time limit for removal - ONLY for diversity
v. Defects for Diversity (waivable if no motion to remand within 30 days)
1. All defendants must join on removal
2. Forum defendant rule (FDR) - forum defendant cannot remove
3. One-year rule
vi. Waivable Defect: Inapplicable For Federal Questions
1. Forum defendant rule
2. All defendants must join
3. One year rule
Venue
A. Determining Venue - 1391 (b)
a. (1) district in which 1 ∂ lives if all ∂s reside in same state.
b. (2) district where substantial part of events or omissions giving rise to claim
c. (3) If 1 and 2 not satisfied, any place where any ∆ subject to PJ.
d. Corps - PPB, Incorp.
B. Transfer - Standard: “in the interest of justice”
a. 1404 - Venue and jurisdiction in transferor are proper. Transfer or keep.
i. Manley factors to determine transfer or keep - 1. plaintiff’s choice of forum, 2. defendant’s
preference, 3. where claim arose, 4. convenience of parties, 5. convenience of witnesses, 6.
location of books/records, 7. enforceability of judgment, 8. practical trial considerations
(expense, etc.), 9. relative court congestion, 10. local interest, 11. public policies of the fora, 12.
familiarity of the judge with applicable law
ii. Need to analyze 1391(b) and PJ of defendants for transferee court
iii. Venue is waived when case is removed or if all parties consent
b. 1406 - Venue and jurisdiction improper in transferor. Transfer or dismiss.
i. Manley factors in determining whether to dismiss.
ii. Need to analyze 1391(b) and PJ of defendants for transferor court AND transferee court
Erie
A. Hanna - FRCP or fed state
 a. Is there any FRCP or federal statutory procedural rule that’s relevant?
i. If Yes - Fed. rule applies as long as there is no violation of Rules Enabling Act. (No
modification of substantive rights) and rule is constitutional.
B. Erie - Substance or procedure
a. If procedure, federal approach applies
b. People forum shop for the substantive law, not the procedural law
C. Guaranty - Outcome determinative at time of filing not time issue arose
a. Would the state versus federal law influence the choice of forum (if it does, then it is outcome
determinative then state law)
D. Byrd - Strong countervailing Federal interest
a. He will state if there is a strong federal interest to be aware of
b. Example: jury trials (7th Amendment)
Remedies
A. Compensatory -
a. Economic
b. Pain/suffering/mental anguish
c. Out-of-pocket costs
d. Emotional distress
e. Lost earnings
f. Focus on injury to π specifically
B. Restitution
a. Restores defendant to the position they would be in had it not been for the wrongdoing
C. Punitive Damages
a. To punish, not to compensate; must be deliberate conduct/gross negligence
b. Due process limits (usually must be less than 10:1 ratio)
D. Injunctions
a. Temporary Restraining Order (TRO)
i. Only for short period pre-trial, no notice to other side, must show irreparable injury if
notice/hearing required
b. Preliminary Injunction
i. More extended time period than TRO
ii. Test: (1) likelihood of success on merits; (2) no adequate remedy at law; (3) movant will suffer
irreparable harm absent an injunction (must consider public interest involved)
1. If met, court considers harm to nonmoving party if granted (balance harms/benefits)
c. Permanent Injunction
 i. Provides permanent injunctive relief as part of a trial resolution or settlement. Frequently used
in structural reform cases, such as prison cases.
d. Declaratory Judgment
i. A gentler form of relief than an injunction; tells the parties what their respective rights and
responsibilities are
E. Prejudgment Seizure of Property
a. Mathews factors - three part inquiry for government authorized seizures of property:
i. Private interest affected by the official action (focus on party whose property is potentially
being taken)
ii. Risk of erroneous deprivation through procedures used, and value of additional procedures
(like posting a bond or other adequate security)
iii. Government’s interest, including functions involved and fiscal and administrative burdens of
other procedures [for private matters, focus instead on interest of party seeking prejudgment
remedy of seizure of property and any interest the gov’t may have, e.g. - rights]
F. Attorneys’ Fees
a. American Rule - parties normally pay their own attorney’s fees; plaintiffs can negotiate contingent fee
b. Fee shifting - some statutes provide for this; can exceed amount recovered by plaintiffs
c. Two methods for calculating
i. Percentage of fund recovered
ii. “Lodestar” - Number of hours times reasonable hourly rate
Pleading
A. Rule 12(b)(6) - applies when complaint is insufficient as a matter of law
B. Rule 8(a)(2) - short and plain statement of the claim showing pleader is entitled to relief
a. Can violate by being too long
b. Can violate if it is conclusory and/or does not contain facts that set forth a plausible claim for relief
i. Iqbal test: (1.) Principle that court must accept all allegations as true does not apply to legal
conclusions (e.g. - negligence, conspiracy); (2.) Only a claim that states a “plausible” claim for
relief will survive motion to dismiss. Court must “draw on judicial experience/common sense”
c. Must include basic facts (Rule 84) and violates rule 12(b)(6) if facts taken as true don’t entitle pleader
to relief - not stating a cause of action
d. Rule 9 (b) - Heightened pleading for FRAUD
i. Circumstances constituting the FRAUD must be pleaded with particularity
ii. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
C. Sanctions
a. Rule 11 - attorney must sign assuring
 i. No improper purpose, contentions are warranted by existing law, factual contentions are
warranted or likely will be after reasonable investigation, factual denials are warranted based on
evidence or reasonably based on belief or lack of information
b. Must be least severe sanction
Discovery
A. Rule 26(a) - Initial disclosures: Required without court order. Evidence supporting the party’s
claims.
B. Tests for discovery: Relevance and proportionality; information doesn’t have to be admissible to be
discoverable.
C. Duty to supplement
D. Discovery devices (ranked best to worst):
a. Depositions (Objections must be non-argumentative, concise, not suggestive)
b. Documents, tangible things (Rule 34; tied with depositions)
c. Request for Admissions (Rule 36)
d. Interrogatories to parties (Rule 33)
e. Physical and mental exam (Rule 35; court must approve; “good cause” and “in controversy”)
E. Sanctions (Rule 37)
a. Motion to comply: failing to respond to discovery or incomplete
b. Failure to comply with court order
c. Failure to disclose (initial disclosures) or supplement
F. Privileges
a. 5th Amendment against self-incrimination, attorney-client, doctor-patient, priest-penitent,
psychotherapist, spousal privilege, some places AA meetings
b. Privileges can be waived (directly/through act of disclosure/putting conversations at issue in litigation)
c. Exceptions for public policy (e.g. - intent to commit a future crime)
E. Work product
a. Rule 26 - opinion work product is never discoverable, fact work product may be discoverable on a
compelling showing of need
Disposition without Trial
A. Default against defendant
a. If defendant fails to answer complaint, court can enter default judgment
b. First step: clerk enters default under Rule 55, court can also enter
c. Second step: default judgement
B. Involuntary dismissal against plaintiff
a. Rule 41(b) - plaintiff fails to prosecute
 b. Can operate as an adjudication on the merits with res judicata
c. Defendant can move for this
C. Voluntary dismissal
a. Plaintiff’s choice
b. Plaintiff wants to dismiss and start over
c. Second voluntary dismissal is with prejudice
D. Summary judgment (chart below)

Aggregation of Claims and Parties

A. Claims, counterclaims, cross claims, real party in interest
a. Joinder of claims - Rule 18 - π can join as many claims as he/she has against ∆
i. Permissive - Unlimited scope; generally no preclusion problem
ii. Compulsory - Limited to “same transaction or occurrence that is the subject matter of the
opposing party’s claim” - barred if not brought.
b. Cross claims - Rule 13(g) - By ∆ against a co-∆. Must already be a party
i. Test: “same transaction or occurrence that is subject of original action or counterclaim/claim
relates to property that is subject matter of original action.”
 c. Real party in interest - Rule 17(a) - Like standing: only the person who has the actual claim can sue.
i. Certain legal relationships qualify: executor, administrator, guardian, bailee
ii. Person who owns the claim can ratify someone else’s ability to bring the claim
B. Joinder of Parties
a. Permissive joinder of parties (Rule 20)
i. Joinder of πs: 20(a)(1) - e.g. - A, B, and C v. D
1. Assert right to relief jointly, severally, in alternative with respect to or arising out of
same transaction, occurrence, or series of transactions and occurrences.
2. Any question of law or fact common to all πs will rise in the action.
ii. Joinder of ∆s: 20(a)(2) - e.g. - A v. B, C, and D
1. Any right is asserted jointly, severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions or occurrences
2. Any question of law or fact common to all defendants will arise in the action
iii. Misjoinder: Court may add or drop a party or sever claims against a party. A party is misjoined
when requirements of permissive joinder are not satisfied
iv. Purposes: (1.) Promote efficiency and (2.) Avoid multiple/sometimes inconsistent lawsuits
b. Mandatory joinder (Rule 19)
i. A v. B, B wants suit dismissed unless C is joined
ii. Sometimes additional plaintiffs or defendants are required to ensure fairness to defendants or
non-parties
iii. Conserves judicial resources
iv. Test for compulsory joinder
1. Under Rule 19(a) should a party be joined? Are they a necessary party? (Will the
absence of the party prejudice the absent party or the parties that are present?)
2. If the party is necessary, is joinder feasible? Joinder would not be feasible if no PJ or
venue over absent party. If feasible, then party must be joined.
3. If the court finds that joinder of the absentee is not feasible, is the party indispensable?
Is it better to dismiss the case or proceed without the necessary party?
c. Impleader (Rule 14) - A sues B, brings in C
i. Defending party may sue a nonparty who is/may be liable to it for all/part of the claim against
it. The new party is allegedly liable to the defendant if the defendant is found liable.
ii. A defendant who brings in a third party is called a third party plaintiff; the newly added party is
called a third party defendant
iii. Policies: promotes efficiency & prevents inconsistent verdicts (e.g. - A v. B, B would have to
defend without presence of C, even though C would be liable to B. B would have to sue C
 separately. Second case could also rule against B and in favor of C because A’s case lacks merits,
even though it had merits before)
iv. Claim must be contingent or derivative of the main claim
1. Indemnification: insurance sued in auto case may implead insurance company that
agreed to insure against claims
2. Contribution: joint and several liability for torts
3. Subrogation: one person stands in the shoes of another for pursuing a claim
4. Liability of the defendant to the plaintiff need not be the same theory as liability of
third party defendant
v. Impleader is permissive (defendant might decide to sue nonparty in other forum in other case)
vi. Not required if complaint is filed within 14 days after defendant services it original answer;
need leave of court after (efficiencies, reasons for delay in seeking to implead, prejudice to
parties)
d. Intervention (Rule 24)
i. Intervention as of right:
1. Statutory right OR
2. Rule 24(a) test:
a. Motion to intervene is timely
b. Applicant claims interest in property or transaction at issue
c. Disposition of action impairs/impedes applicant’s ability to protect interest
d. Applicant not adequately represented by existing parties
ii. Permissive Intervention (Rule 24(b)):
1. Statute gives conditional right to intervene OR
2. applicants claim or defense shares with the main action a common question of law or
fact AND court exercises discretion to allow intervention
3. Court also considers 24(a) factors (timeliness, interference with existing suit, and
adequacy of existing representation)
e. Interpleader (Rule 22)
i. Plaintiff confronts multiple claims involving fund or property in single proceeding (Atlas Corp
v Marine Ins. Co. - jewelry heist insurance payout. One fund, many claimants).
ii. Must have:
1. Bona fide good faith concern of multiple claims
2. At least 2 adverse claimants
f. Rule 42 (Consolidation, separate trials)
i. Actions before same federal district court combined into one
 g. Multidistrict litigation (28 USC 1407)
i. Pretrial only, only Federal, no venue/PJ
ii. Must be one or more common questions of fact; convenience of parties/witnesses (really,
convenience of the court);just and efficient conduct of the litigation.
iii. Decision made by Judicial Panel on Multidistrict Litigation (7 judges; 7 different circuits)
iv. Initiated by a party or MDL panel

h. Class Actions (Rule 23)

i. Class certification: threshold requirements
1. Definable class (for notice, distribution of claims) - Marcus v. BMW
a. Objective
b. Ascertainability: way to determine members of class (courts are divided but on
exam assume that it is a requirement)
2. A representative who is a class member
3. Live - Claim that is not moot - Rocky v. King
4. Representative has standing
ii. Rule 23(a) requirements (must satisfy all four)
1. Numerosity - At least 40
2. Commonality - common issue of law or fact
3. Typicality (representative) - plaintiff and their claim
4. Adequacy of representation (fairly protect interests of class)
iii. Rule 23(b) requirements (must satisfy both; usually for damages)
1. Common questions of law or fact predominate (predominance); and
a. E.g. - BMW where tires can go flat for many different reasons
2. The class action is the superior method for adjudication (superiority)
iv. Approving settlements - Key Girsh factors to determine if settlement is fair
1. Reasonableness of the settlement amount given the risks and likely duration of
litigation;
2. Whether the parties had adequate opportunity to investigate the claims
Jury Trial
A. 7th Amendment
a. Applies to common law suits where the amount is over $20
b. Applies to claims for damages, but not equitable or maritime relief
c. Where an issue applies to combined common law and equitable proceeding, the overlapping issue must
be tried by a jury
 B. Jury selection/Voir Dire
a. Challenges
i. Cause - Reasons to suspect juror cannot be fair or impartial.
ii. Peremptory - Can be exercised without explanation or reason. 3 per side for federal civil cases.
b. Lawyer that strikes needs to only articulate a legitimate nondiscriminatory reason for the strike; party
challenging must show pretext of discrimination; finding of no intent to discriminate by trial court is
question of fact, reverasible only if clearly erroneous under Rule 52(a) - Batson
c. Case can go to trial by jury if more likely than not plaintiff has a case Walmart
d. Rule 48
i. At least six jurors and no more than 12.
ii. Verdict has to be unanimous.
C. Rule 50 vs. Rule 59
a. Rule 50 - Judgment as a matter of law
i. Insufficiency of evidence
ii. Takes the case from the jury
iii. Claim preclusion
iv. Motion can be renewed after jury’s verdict within 28 days after entry of judgment or end of all
evidence
b. Rule 59 - New trial
i. Insufficiency of evidence; Excessive/inadequate damages; Jury misconduct; Error by the court;
Other similar reason
ii. Parties get chance to do it over again, no claim preclusion
Appeals to Court of Appeals
A. The Final Judgment Rule and its Exceptions
a. Basic rule: Final judgment rule - 28 USC § 1291
i. Purpose: case is final when nothing remains to be done, except perhaps award of attorneys’ fees
b. Major Exceptions
i. Injunctions - 28 USC §1292(a)(1)
1. Orders granting, continuing, modifying, refusing, dissolving, or refusing to dissolve
injunctions; TROs not included
2. Preliminary and permanent injunctions are appealable
ii. Certification 28 USC §1292(b)
1. Process
a. District court must certify
b. Must go to court of appeals within 10 days after certification
c. Appellate courts must accept jurisdiction
 2. Requirements
a. Controlling question of law; questions of fact don’t qualify
b. Substantial ground for disagreement: issue is complicated or courts are split
i. Question of first impression may not qualify if the answer is easy
c. Resolution will materially advance litigation
i. Focus is on efficiency: whether interlocutory review would ultimately
result in a savings of time/expense for court/parties (e.g. - avoid
trial/substantially curtail it)
iii. Rule 54(b) -
1. Allows for entry of partial final judgment for claims or parties.
2. Parties can then immediately appeal the final decision.
3. Requirements
a. Multiple claims or parties (if disposing of a legal issue but not claim, doesn’t
apply; claim refers to cause of action or legal right)
b. Final ruling on or at least one claim or party
c. No just reason for delay: do needs of parties outweigh the interest of having
just one appeal at end of case?
4. Liberty v. Wetzel - Discrimination was single legal theory - 54(b) didn’t apply
iv. Rule 23 (f)
1. Only for grant or denial of class certification.
2. At appeals court’s discretion
3. Doesn’t require approval of a trial judge.
v. Mandamus - 28 USC §1651(a)
1. Extraordinary or drastic circumstances involving a usurpation of power or clear abuse
of discretion (e.g. - wrongfully refused to grant a motion to recuse the judge)
vi. Collateral Order Doctrine
1. All three requirements must be satisfied:
a. Conclusively determine the disputed question (not a tentative ruling or one
likely to be reconsidered)
b. Resolve an important issue separate from the merits: needs to be collateral and
must be important
c. The issue must be effectively unreviewable on appeal from a final judgment
2. Pretty much only for immunity and sovereign immunity or bonds
B. Appeal Standards of Review
 a. Jury trial - Courts can’t review specific findings - only say if there was sufficient evidence from which a
jury could have rationally made the decision; broad deference given to jury on fact issues
b. Standards of review
i. Pure questions of law - de novo
ii. Clearly erroneous (e.g. - factual findings of a judge in bench trial) - Rule 52(a)
iii. Abuse of discretion (e.g. - amendments to pleadings, most discovery issues)
c. Relief from judgment - Rule 60(b)
i. Must go back to the district court
ii. The ground must be extraordinary to justify undoing a final judgment with preclusive
effect
iii. A change of law will almost never justify undoing a final preclusive judgment
Supreme Court
A. Jurisdiction of the Supreme Court: Original and Appellate
a. Original: All cases affecting ambassadors, other public ministers and consults, and where a state is party
b. Appellate: Everything else except exceptions and regulations that Congress would make
B. Appeals from Lower Federal Courts
a. Is granted jurisdiction to review “cases in the court of appeals before or after rendition of judgment or
decree.”
b. Can review non-final rulings of a federal court of appeals, including interlocutory orders as well as
orders remanding the matter to the district court for further proceedings.
c. Any party can file writ of certiorari.
C. Appeals from State Courts
a. Jurisdiction over state-court cases limited to review of final judgments or decrees rendered by the state’s
highest court.
b. If state court decides both federal and state-law issues, but state-law ground is “independent and
adequate” ground for ruling, SCOTUS lacks jurisdiction for review.
D. Almost all jurisdiction is discretionary
a. 2 situations for mandatory review:
i. problems with diplomat/ambassador abroad (to show that US is taking the case seriously
preserving goodwill among nations)
ii. problems arising in border area between two circuits where it is unclear which circuit should
take the case
E. Certiorari Considerations
a. Conflict among federal circuits, state supreme courts, and both circuits/supreme courts
b. Chance of cert only 3-4%. Been on downward trend since 80’s
 c. Grating cert requires a 4 yes votes from cert pool
i. Each clerk takes a few petitions and recommends cert or not, putting them in a “cert pool.”
Each justice has 3 or 4 clerks.
F. Opinion Writing
a. If Chief Justice is in majority, they assign to themself or another Justice in majority; senior Justice in
dissent may assign the dissent
b. If Chief Justice is in dissent, then senior Justice in majority assigns & Chief assigns dissent
G. Rehnquist Remarks
a. Court’s functions:
i. Decide which cases to take
ii. Decide the cases they do take
iii. Write opinions explaining the result, often with concurrences, dissents
H. Ginsburg Article
a. Functions of dissent:
i. Might sway other justices
ii. Might eventually be adopted as majority point of view
iii. Might attract public attention/legislative change
I. Reversal Rates
a. Reverses well of 50% of cases in a term
J. Statistics
a. Chances of having cert granted are only 3-4%, BUT the SG has well over a 50% chance of having
petition granted
b. Downturn in the number of cases that the court reviews, used to be about 150-175, now about ½ that
K. The Cert. Pool
a. Requires at least four votes
b. All participating Justices pool their law clerks with one law clerk assigned to analyze a particular cert.
petition. Clerk recommends either granting or denying the petition and the memo is distributed to all
participating Justices.
L. Merits/Amicus Briefing
a. Merits brief limited to issues raised in the petition
i. Focus on what the correct law should be
ii. Should select and advance only the strongest arguments
b. Amicus briefs are usually filed in support of petitions for cert
M. Role of the Solicitor General
a. Represents the US before the Supreme court
 b. US involved in about 75% of Supreme Court cases
c. Court grants about 70% of the SG petitions for cert and they win about 70% of the time
d. Supreme Court requests the views of the SG and when they participate as amicus they are given 10 of
the 30 minutes of that side
N. Oral Argument
a. Rarely gives advocates extended time to talk without interruption, it was a hot bench
b. During COVID, it is more orderly and the amount of time each justice spends asking questions is
much more evenly split
O. Recusals
a. Recusal justice cannot be replaced and a 4-4 decision has no precedential value
b. Recusals ensure respect of the court must recuse when they have a clear conflict of interest or the
appearance of one
P. Reform
a. Merits-based selection
b. Insistence that nominees answer questions about their views on key constitutional issues
c. Term limits (18 years)
d. Court packing - increased the number of justices
e. Have the court sit in panels subject to en banc review
f. Adopt jurisdiction stripping statutes to bar Court from hearing particular kinds of cases
g. Restore filibuster to ensure moderate appointments
h. Appoint every federal court of appeals judge as a Justice, with panels of nine randomly selected by
lottery.
i. Appoint 5 Republican Justices, 5 Democratic Justices, and then have those 10 select 5 more.
Presumably, that would ensure that at least 5 of the Justices would be consensus, centrist appointment
Preclusion and Related Doctrines
A. Stare decisis
a. Applies to holding, not dictum
b. Prior case must be sufficiently similar
c. Only applies to cases within the hierarchy
i. Also binding in Erie decisions
B. Law of the case
a. A court is ordinarily precluded from re-examining an issue previously decided by the same court, or a
higher court in the same case.
b. Applies only during the course of a single proceeding, and forecloses re-examination of decided issues
either on remand or on a subsequent appeal.
C. Claim preclusion (res judicata)
a. Issue was decided or could have been decided as part of the case (same transaction or occurrence);
parties must be the same
b. Test
i. Identity of parties or privies must be the same
ii. Original case must have produced a final valid judgment on the merits
iii. Both must involve the same cause of action (same transaction or occurrence; claims that is
brought or could have been brought)
D. Issue preclusion (collateral estoppel)
a. Test
i. Issue at stake is identical to one previously litigated
ii. Issue was actually litigated in prior litigation
iii. Determination of the issue in prior litigation was a critical and necessary part of the judgment
b. Non-mutual collateral estoppel
i. Offensive
ii. Defensive
iii. Not allowed