In what way does the federal courts’ “exclusive jurisdiction” under certain federal statutes—here, the Securities Exchange Act—differ from their general “federal question” (or “arising under”) jurisdiction under 28 USC 1331? That was a totally great FedCourts exam question until last Tuesday, when the Supreme Court heard arguments in Merrill Lynch v. Manning. Now I have to invent a new question. How dare they.
Now that the Supreme Court is back in session, do you feel better? I do, a little. The docket for the 2015-2016 Term so far contains about 40 cases half the expected load for the Term. There is the usual smattering of Eighth and Fourteenth Amendment cases, which cannot end well. But there is also a gratifying number of cases (13 by my count) that (1) are about something real (money) and (2) pose difficult FedCourts-ish questions. Those cases may go right or wrong. But at least the justices will behave like lawyers, not oracles. Herewith three favorites, along with intrepid predictions.