One of the defining features of the American legal system is federalism – the division of powers between the national and the state governments. This course deals primarily with two recurring problems in civil practice that have their roots in this division of powers. First, do one or both litigants have a choice between federal and state court, and, if so, how can the litigants maximize the likelihood of securing the preferred forum? Second, when does federal law trump state law? A dominant theme of the course is the relationship between legal doctrines and the practical consequences of those doctrines in light of existing (and possible future) institutional arrangements. In particular, defendants in civil cases often prefer federal court; plaintiffs tend to prefer state court. But the rules and doctrines that determine which side gets its preferred forum will often be invisible to the average lawyer. One purpose of this course is to alert students to the pitfalls that can trap the unwary; here, more than in other areas of the law, a little learning can be a dangerous thing.
Representative topics include: the prerequisites for Supreme Court review of state-court judgments; elements of federal question jurisdiction; removal of cases from state to federal court; and the power of the federal courts to apply rules of law different from those applied in state courts. Attention will be given to litigation strategy (especially the choice of forum) as well as to critical analysis of the doctrines and statutes. This course will be taught by a sitting Federal Appeals Court Judge who will incorporate his perspective as both a former practitioner and as a jurist.