Aaron Bruhl

Don’t forget the faxed handwritten edits that might have “despicable” scrawled on the top of the first page, but no one can decipher it for sure.

With the caveat that one can’t always tell from oral argument, it sounded to me like the Court will reverse and say that the state statute does not apply in federal court.

The tougher question seemed to be which Federal Rule(s) the state law conflicts with: 3, 8, 9, 11, 12, discovery, “structure”?

This morning SCOTUS heard Berk v. Choy, a Civil Procedure case about the Erie doctrine. The state requires an “affidavit of merit” to accompany medical malpractice complaints. Does it apply in federal court?

I listened to the oral argument.

Reactions in next post.

Docket and briefs at this link:

Someone (not me) wondered enough to write an article.

papers.ssrn.com/sol3/papers....

That could be, but I think other relevant remedies at law could include mandamus, quo warranto, and declaratory judgment.

For non-pedantic content on QP 2, by the way, see below from Sam Bray:

papers.ssrn.com/sol3/papers....

Screenshot of order granting stay and certiorari in Trump v. Slaughter.

The Supreme Court’s reference, in QP 2 in the Slaugher removal case, to “at equity or at law,” rather than using the traditional formulaic prepositions “in equity or at law” stands as a stark contrast to its embrace of “history and tradition.” In this essay I will …

#pedantry

This kind of thing is why our library is the best.

What else are you supposed to do when SCOTUS grants cert on remedies for office holders?

Title page of treatise on extraordinary legal remedies by James High.

I went to the library to get High on Extraordinary Legal Remedies.

Remedies in the Officer Removal Cases A brief note that I have just posted a draft paper on SSRN called Remedies in the Officer Removal Cases. Here’s the abstract:

Given the Supreme Court’s grant of a stay (which allows FTC member’s ouster) and its grant of certiorari on the remedies question as well as on the merits of Humprey’s Executor, this from Sam Bray is sure timely:

@dividedargument.bsky.social

Maybe cliche but Red October or Shawshank.

The first session will have a presentation from our honor council about how faculty might design assignments & exams to reduce worries about improper use of AI. I’m also thinking about a session in which we faculty share and compare our recommendation letters for clerkship candidates.

Other ideas?

A brag and a request for teaching ideas:

I am honored to be this year’s Kelly Professor for Excellence in Teaching. The professorship comes with the duty to present lunchtime sessions to my colleagues on teaching-related themes. What ideas do you have?

They are now up to about a dozen of the ideas in this interesting series.

Do you give it the fact section of the actual opinion or give it your own summary?

I found this to be a very helpful investigation of some of the practical issues in the impoundment litigation.

www.yalejreg.com/nc/looming-m...

What’s worse,

Heart of Literally Glass

Literally a Birdhouse in Your Soul

?

Rainman, though very brief.

Maybe Barnes v Felix, the “moment of threat” case issued in May (not shadow docket).

Hard to believe this threatened lawsuit about blue slips actually actually gets filed. There are, what, like five fatal jurisdictional/threshold defects?

thehill.com/homenews/adm...

Well you see, you’re supposed to sear it first to seal in the juices. Common mistake.

William is Orange
Mary II’s blood is blue
What’s more enj-
-oyable than a bloodless coup

Judges as Chaos Agents A seismic shift is underway in the American legal academy.

Reupping latest Substack on new legal scholarship.

Interested in clashes between the judiciary and legislature? How about injudicious judges who publish their correspondence with famous political figures? Boss Tweed connection? Old treatises?

Have I got the (short!) draft article for you.

Here is the link.

Abstract in next post.

⚖️ 🗃️

bsky.app/profile/aaro...

I lean toward “less likely to overrule.” But I am not sure.

If you think “more likely,” does that mean that you should oppose statutory enactments that bolster/parallel constitutional rights? That doesn’t seem right.

3/3

Case for “more”:
Reduced policy impact* of overruling makes it easier for the Court to overrule.

* = I am assuming that the RMA survives an overruling of Obergefell. I think it should, because it is based not just on 14A but other powers like second sentence of Full Faith & Credit Clause.

2/3

Does the Respect for Marriage Act (RMA) make it more or less likely that SCOTUS ever overrules Obergefell?

Case for “less likely”:

1) Court would pay the legitimacy cost of overruling without getting much policy benefit.*

2) RMA shows enactable legislative preferences / public opinion.

1/3