CL & L: Current Legal Controversies - Fall 2022
Leora Harpaz
Current Legal Controversies
Class Description: This course will examine current legal
controversies as well as ones we can anticipate will confront
courts in the future. Some of those legal issues will have reached
the US Supreme Court, such as the challenges to the affirmative
action admissions policies of Harvard College and the University
of North Carolina that will be argued in the fall. Others may be
before lower courts, such as the ongoing legal battles over
abortion and guns, or not even have reached the stage of
litigation, like the possible challenges to same-sex marriage and
the use of contraceptives that may confront courts as a result of
the Supreme Court overturning Roe v. Wade.
Thu 10:30-11:45am •
Sept 22, 29, Oct 6, 13, 20, 27, Nov 3, 10
• 8 sessions
Please use the following link if you want to make suggestions for
topics you would like covered in upcoming classes: http://www.lharpaz.com/ContinuingEd/CLL/suggestions/
Class 8 - Nov. 10, 2022
School Prayer Fact Pattern
Westwood High School, a public high school, has an opening
assembly which takes place in the school auditorium at the
beginning of each school day. The opening assembly was added to
the school day about five years ago as a community-building
exercise. The assembly usually lasts for about ten minutes. All
teachers are required to attend the assembly unless other school
obligations prevent their attendance. In addition, the principal
encourages each teacher to volunteer to speak at the assembly at
least several times each semester. Until recently, all students
were required to attend the opening assembly as well. However,
as described below, parents are now allowed to request their
children be excused from attending the assembly, although very
few parents have taken advantage of this opportunity.
The assembly begins with official announcements read by Blair
Brady, the school principal. The remainder of the time is
devoted to brief remarks by students and teachers who volunteer
to speak at that day’s assembly. Anyone who wants to speak at
that day’s opening assembly must sign up before the assembly
begins on a sign-up sheet available for that purpose. On the
sign-up sheet, they must include their name and a very brief
description of the topic they plan to speak about such as “soup
kitchen needs volunteers,” “March for Justice,” or “need writers
for student literary magazine.” Students and teachers are called
on to speak in the order they sign up until the 10 minutes
allocated for the assembly are over.
The speakers typically address a variety of things including
upcoming school events, political issues, volunteer
opportunities with community organizations, an important event
in their lives, and other topics. The principal imposes no
limits on the subjects that can be raised by speakers, other
than banning comments that are insults directed at particular
students or teachers as well as curse words. Each speaker is
allowed to speak for no more than two minutes, but most of the
speakers take less time.
Beginning in April, 2022, a number of teachers signed up and
listed as their topic description “prayer.” When their turn
came, they delivered a brief prayer. This occurred about once
every ten days. Since the new school year began, it has occurred
with the same frequency. There are at least six different
teachers who have delivered prayers. Some of the prayers have
been nondenominational, but others have been associated with a
particular religion. The denominational prayers have been mainly
Christian, but there is one teacher who has twice delivered a
Jewish Morning Prayer at the assembly.
When the prayers continued this academic year, a group of
parents made an appointment to meet with Blair Brady, the high
school principal. At the meeting, the parents complained about
the prayers at the opening assembly and told the principal that
they believed that the inclusion of the prayers violated the
First Amendment Establishment Clause because the high school was
including prayers in an official school event. The principal’s
response was that the students and teachers who speak at the
opening assembly choose their own topics and that the school
doesn’t control what is said. Brady also told them that it was
the view of the attorney representing the School District that
the teachers were speaking as private citizens rather than as
school employees. Therefore, their prayers are not attributable
to the school. As a result, the teachers had a right to include
prayers in their remarks and doing so didn’t constitute a
violation of the Establishment Clause by the school.
After receiving this response, some of the parents then asked
the principal if their children could be excused from the
opening exercise to avoid their exposure to the prayers and the
principal agreed he would allow students whose parents objected
to the prayers to instead gather in the cafeteria during the
opening exercise where they could be supervised by cafeteria
staff. As a result of the principal allowing students to be
excused, four students no longer attend the assembly. However
most parents have not asked for their children to be excused
because their children don’t want to miss important
announcements and other topics covered at the opening exercise
and don’t want to call attention to themselves by being absent
from an event that most of their friends attend.
Some of the parents who met with the principal have now filed a
lawsuit in federal district court arguing that the the inclusion
of prayers in the opening assembly is a violation of the First
Amendment Establishment Clause
Class 7 - Nov. 3, 2022
New
York Times Article - The Portrait of Justice
Official
Photo of Current Supreme Court Justices
Class 6 - Oct. 27, 2022
Interactive Map: US Abortion Policies and Access After Roe
(Guttmacher Institute)
Class 5 - Oct. 20, 2022
Art. I, Sec. 8, Clause 3 -
Commerce Clause:
The Congress shall have power to . . . regulate commerce with
foreign nations, and among the several states, and with the
Indian tribes;
Class 4 - Oct. 13, 2022
Complete List of Sensitive
Places in the New York Concealed Carry Improvement Act
2. For the purposes of this section, a
sensitive location shall mean:
(A) Any place owned or under the control of
federal, state or local government, for the purpose of
government administration, including courts;
(B) Any location providing health, behavioral
health, or chemical dependance care or services;
(C) Any place of worship or religious
observation;
(D) Libraries, public playgrounds, public
parks, and zoos;
(E) The location of any program licensed,
regulated, certified, funded, or approved by the
office of children and family
services that provides services to
children, youth, or young adults, any legally exempt
childcare provider; a childcare program for which a permit
to operate such program has been issued by the
Department of Health and Mental Hygiene pursuant to the
Health Code of the City of New York;
(F) Nursery schools, preschools, and summer
camps;
(G) The location of any program licensed,
regulated, certified, operated, or funded by the Office for
People With Developmental Disabilities;
(H) The location of any program licensed,
regulated, certified, operated, or funded by Office of
Addiction Services and Supports;
(I) The location of any program licensed,
regulated, certified, operated, or funded by the Office of
Mental Health;
(J) The location of any program licensed,
regulated, certified, operated, or funded by the Office of
Temporary and Disability Assistance;
(K) Homeless shelters, runaway homeless youth
shelters, family shelters, shelters for adults, domestic
violence shelters, and emergency shelters, and residential
programs for victims of domestic violence;
(L) Residential settings licensed, certified,
regulated, funded, or operated by the Department of Health;
(M) In or upon any building or grounds, owned
or leased, of any educational institutions, colleges and
universities, licensed private career schools, school
districts, public schools, private schools licensed
under article one hundred one of the education law, charter
schools, non-public schools, board of cooperative
educational services, special act schools, preschool special
education programs, private residential or non-residential
schools for the education of students with
disabilities, and any state-operated or state-supported
schools;
(N) Any place, conveyance, or vehicle used for
public transportation or public transit, subway cars, train
cars, buses, ferries, railroad, omnibus, marine or aviation
transportation; or any facility used for or in connection
with service in the transportation of passengers, airports,
train stations, subway and rail stations, and bus terminals;
(O) Any establishment issued a license
for on-premise consumption pursuant to article four, four-a,
five, or six of the alcoholic beverage control law where
alcohol is consumed and any establishment licensed under
article four of the cannabis law for on-premise consumption;
(P) Any place used for the performance, art
entertainment, gaming, or sporting events such as theaters,
stadiums, racetracks, museums, amusement parks, performance
venues, concerts, exhibits, conference centers, banquet
halls, and gaming facilities and video lottery terminal
facilities as licensed by the gaming commission;
(Q) Any location being used as a polling place;
(R) Any public sidewalk or other public area
restricted from general public access for a limited time or
special event that has been issued a permit for such time or
event by a governmental entity, or subject to specific,
heightened law enforcement protection, or has
otherwise had such access restricted by a governmental
entity, provided such location is identified as such
by clear and conspicuous signage;
(S) Any gathering of individuals to
collectively express their constitutional rights to protest
or assemble;
(T) The area commonly known as
Times Square, as such area is determined and identified by
the City of New York; provided such area shall
be clearly and conspicuously identified with signage.
Class 3 - Oct. 6, 2022
Presidential Records Act: Definitions
§2201. Definitions
As used in this chapter—
(1) The term "documentary material" means all books,
correspondence, memoranda, documents, papers, pamphlets, works
of art, models, pictures, photographs, plats, maps, films, and
motion pictures, including, but not limited to, audio and visual
records, or other electronic or mechanical recordations, whether
in analog, digital, or any other form.
(2) The term "Presidential records" means documentary materials,
or any reasonably segregable portion thereof, created or
received by the President, the President's immediate staff, or a
unit or individual of the Executive Office of the President
whose function is to advise or assist the President, in the
course of conducting activities which relate to or have an
effect upon the carrying out of the constitutional, statutory,
or other official or ceremonial duties of the President. Such
term—
(A) includes any documentary materials relating to the political
activities of the President or members of the President's staff,
but only if such activities relate to or have a direct effect
upon the carrying out of constitutional, statutory, or other
official or ceremonial duties of the President; but
(B) does not include any documentary materials that are (i)
official records of an agency (as defined in section 552(e) of
title 5, United States Code); (ii) personal records; (iii)
stocks of publications and stationery; or (iv) extra copies of
documents produced only for convenience of reference, when such
copies are clearly so identified.
(3) The term "personal records" means all documentary materials,
or any reasonably segregable portion therof, of a purely private
or nonpublic character which do not relate to or have an effect
upon the carrying out of the constitutional, statutory, or other
official or ceremonial duties of the President. Such term
includes—
(A) diaries, journals, or other personal notes serving as the
functional equivalent of a diary or journal which are not
prepared or utilized for, or circulated or communicated in the
course of, transacting Government business;
(B) materials relating to private political associations, and
having no relation to or direct effect upon the carrying out of
constitutional, statutory, or other official or ceremonial
duties of the President; and
(C) materials relating exclusively to the President's own
election to the office of the Presidency; and materials directly
relating to the election of a particular individual or
individuals to Federal, State, or local office, which have no
relation to or direct effect upon the carrying out of
constitutional, statutory, or other official or ceremonial
duties of the President.
(4) The term "Archivist" means the Archivist of the United
States.
(5) The term "former President", when used with respect to
Presidential records, means the former President during whose
term or terms of office such Presidential records were created.
Full Text of Presidential Records Act
Excerpts From Oral Argument in Merrill v. Milligan:
Justice Kagan:
“I
think what Section 2 is trying to get at is it's trying to
ensure equal political opportunities so let me just use that as
a segue to my last question, which is that this is an important
statute. It's one of the great achievements of American
democracy to achieve equal political opportunities regardless of
race, to ensure that African Americans could have as much
political power as white Americans could. That's a pretty big
deal. And it was strengthened in 1982 when this Court
interpreted it too narrowly for Congress's taste, and Congress
said no, we didn't mean that at all and made this into a results
test.
Now, in recent years, this statute has fared not well in this
Court. Shelby County looks at Section 5 and it says no, Section
5, we don't need that anymore, and one of the things it says is
we have Section 2. And then Brnovich comes along, and that's a
Section 2 case, and the Court says, you know what, Section 2,
they're really dilution claims. You know, this is a denial
claim, and so we can construe that very narrowly. But, of
course, there's just all these cases that are dilution claims.
That's really what Section 2 is about. And now here we are, the
classic Section 2 dilution claim. And you're asking us
essentially to cut back substantially on our 40 years of
precedent and to make this too extremely difficult to prevail
on. So what's left?”
Justice Jackson:
P.8“I'm glad that you clarified that your core point is that the
Gingles test has to have a race-neutral baseline or that the
first step has to be race-neutral. And what I guess I'm a little
confused about in light of that argument is why, given our
normal assessment of the Constitution, why is it that you think
that there's a Fourteenth Amendment problem? And let me just
clarify what I mean by that. I don't think we can assume that
just because race is taken into account that that necessarily
creates an equal protection problem, because I understood that
we looked at the history and traditions of the Constitution, at
what the framers and the founders thought about and when I
drilled down to that level of analysis, it became clear to me
that the framers themselves adopted the equal protection clause,
the Fourteenth Amendment, the Fifteenth Amendment, in a race
conscious way. That they were, in fact, trying to ensure that
people who had been discriminated against, the freedmen during
the reconstruction period, were actually brought equal to
everyone else in the society. So I looked at the report that was
submitted by the Joint Committee on Reconstruction, which
drafted the Fourteenth Amendment, and that report says that the
entire point of the amendment was to secure rights of the freed
former slaves. The legislator who introduced that amendment said
that "unless the Constitution should restrain them, those states
will all, I fear, keep up this discrimination and crush to death
the hated freedmen." That's not a race-neutral or race-blind
idea in terms of the remedy. And even more than that, I don't
think that the historical record establishes that the founders
believed that race neutrality or race blindness was required,
right? They drafted the Civil Rights Act of 1866, which
specifically stated that citizens would have the same civil
rights as enjoyed by white citizens. That's the point of that
Act, to make sure that the other citizens, the black citizens,
would have the same [rights] as the white citizens. So they
recognized that there was unequal treatment, that people, based
on their race, were being treated unequally. And, importantly,
when there was a concern that the Civil Rights Act wouldn't have
a constitutional foundation, that's when the Fourteenth
Amendment came into play. It was drafted to give a
constitutional foundation for a piece of legislation that was
designed to make people who had less opportunity and less
rights, equal to white citizens. So with that as the framing and
the background, I'm trying to understand your position that
Section 2, which by its plain text is doing that same thing, is
saying you need to identify people in this community who have
less opportunity and less ability to participate and ensure that
that's remedied, right? It's a race-conscious effort, as you
have indicated. I'm trying to understand why that violates the
Fourteenth Amendment, given the history and background of the
Fourteenth Amendment?”
Complete List of Sensitive Places in the New York Concealed
Carry Improvement Act
2. For the purposes of this section, a sensitive
location shall mean:
(A) Any place owned or under the control of
federal, state or local government, for the purpose of
government administration, including courts;
(B) Any location providing health, behavioral
health, or chemical dependance care or services;
(C) Any place of worship or religious observation;
(D) Libraries, public playgrounds, public parks,
and zoos;
(E) The location of any program licensed,
regulated, certified, funded, or approved by the office
of children and family services
that provides services to children, youth, or
young adults, any legally exempt childcare provider; a childcare
program for which a permit to operate such program has
been issued by the Department of Health and Mental Hygiene
pursuant to the Health Code of the City of New York;
(F) Nursery schools, preschools, and summer camps;
(G) The location of any program licensed,
regulated, certified, operated, or funded by the Office for
People With Developmental Disabilities;
(H) The location of any program licensed,
regulated, certified, operated, or funded by Office of Addiction
Services and Supports;
(I) The location of any program licensed,
regulated, certified, operated, or funded by the Office of
Mental Health;
(J) The location of any program licensed,
regulated, certified, operated, or funded by the Office of
Temporary and Disability Assistance;
(K) Homeless shelters, runaway homeless youth
shelters, family shelters, shelters for adults, domestic
violence shelters, and emergency shelters, and residential
programs for victims of domestic violence;
(L) Residential settings licensed, certified,
regulated, funded, or operated by the Department of Health;
(M) In or upon any building or grounds, owned or
leased, of any educational institutions, colleges and
universities, licensed private career schools, school districts,
public schools, private schools licensed under article one
hundred one of the education law, charter schools, non-public
schools, board of cooperative educational services, special act
schools, preschool special education programs, private
residential or non-residential schools for the education of
students with disabilities, and any state-operated or
state-supported schools;
(N) Any place, conveyance, or vehicle used for
public transportation or public transit, subway cars, train
cars, buses, ferries, railroad, omnibus, marine or aviation
transportation; or any facility used for or in connection with
service in the transportation of passengers, airports, train
stations, subway and rail stations, and bus terminals;
(O) Any establishment issued a license for
on-premise consumption pursuant to article four, four-a, five,
or six of the alcoholic beverage control law where alcohol is
consumed and any establishment licensed under article four of
the cannabis law for on-premise consumption;
(P) Any place used for the performance, art
entertainment, gaming, or sporting events such as theaters,
stadiums, racetracks, museums, amusement parks, performance
venues, concerts, exhibits, conference centers, banquet halls,
and gaming facilities and video lottery terminal facilities as
licensed by the gaming commission;
(Q) Any location being used as a polling place;
(R) Any public sidewalk or other public area
restricted from general public access for a limited time or
special event that has been issued a permit for such time or
event by a governmental entity, or subject to specific,
heightened law enforcement protection, or has otherwise
had such access restricted by a governmental entity, provided
such location is identified as such by clear and
conspicuous signage;
(S) Any gathering of individuals to collectively
express their constitutional rights to protest or assemble;
(T) The area commonly known as Times
Square, as such area is determined and identified by the City of
New York; provided such area shall be clearly and
conspicuously identified with signage.
Class 1 - Sept. 22, 2022
List of Important Cases on Supreme Court Docket for Upcoming
Term:
1) Students for Fair Admissions Inc. v. President & Fellows
of Harvard College,
[Argument: 10.31.2022]
Issue(s): (1) Whether the Supreme Court should overrule Grutter
v. Bollinger and hold that institutions of higher education
cannot use race as a factor in admissions; and (2) whether
Harvard College is violating Title VI of the Civil Rights Act by
penalizing Asian American applicants, engaging in racial
balancing, overemphasizing race and rejecting workable
race-neutral alternatives.
Students for Fair Admissions v. University of North Carolina
[Argument: 10.31.2022]
Issue(s): (1) Whether the Supreme Court should overrule Grutter
v. Bollinger and hold that institutions of higher education
cannot use race as a factor in admissions; and (2) whether a
university can reject a race-neutral alternative because it
would change the composition of the student body, without
proving that the alternative would cause a dramatic sacrifice in
academic quality or the educational benefits of overall
student-body diversity.
2) Merrill v. Milligan [Argument: 10.4.2022]
Issue: Whether the state of Alabama’s 2021 redistricting plan
for its seven seats in the United States House of
Representatives violates Section 2 of the Voting Rights Act.
3) 303 Creative LLC v. Elenis [Argument not yet scheduled]
Issue(s): Whether applying a public-accommodation law to compel
an artist to speak or stay silent violates the free speech
clause of the First Amendment.
4) Haaland v. Brackeen [Argument: 11.9.2022]
Issue(s): (1) Whether various provisions of the Indian Child
Welfare Act of 1978 — namely, the minimum standards of Section
1912(a), (d), (e), and (f); the placement-preference provisions
of Section 1915(a) and (b); and the recordkeeping provisions of
Sections 1915(e) and 1951(a) — violate the anticommandeering
doctrine of the 10th Amendment; (2) whether the individual
plaintiffs have Article III standing to challenge ICWA’s
placement preferences for “other Indian families” and for
“Indian foster home[s]”; and (3) whether Section 1915(a)(3) and
(b)(iii) are consistent with the equal protection guarantee.
5) National Pork Producers Council v. Ross [Argument:
10.11.2022]
Issue(s): (1) Whether allegations that a state law has dramatic
economic effects largely outside of the state and requires
pervasive changes to an integrated nationwide industry state a
violation of the dormant commerce clause and (2) whether such
allegations, concerning a law that is based solely on
preferences regarding out-of-state housing of farm animals,
state a claim under the Pike v. Bruce Church, Inc. balancing
test.
6) Moore v. Harper [Argument not yet scheduled]
Issue(s): Whether a state’s judicial branch has the power to
void regulations governing the “Manner of holding Elections for
Senators and Representatives ... prescribed ... by the
Legislature thereof,” and replace them with regulations of the
state courts’ own devising, based on state constitutional
provisions.
7) United States v. Texas [Argument not yet scheduled]
Issue(s): (1) Whether state plaintiffs have Article III standing
to challenge the Department of Homeland Security’s Guidelines
for the Enforcement of Civil Immigration Law; (2) whether the
Guidelines are contrary to 8 U.S.C. § 1226(c) or 8 U.S.C. §
1231(a), or otherwise violate the Administrative Procedure Act;
and (3) whether 8 U.S.C. § 1252(f)(1) prevents the entry of an
order to “hold unlawful and set aside” the guidelines under 5
U.S.C. § 706(2).
The Elections Clause - Art. I, Sec. IV, Clause 1:
The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but Congress may at any time make or alter
such Regulations, except as to the Place of chusing Senators.
Federal Rule of Criminal Procedure 41: Search and Seizure
Rule 41(g):
(g) Motion to Return Property. A person aggrieved by an unlawful
search and seizure of property or by the deprivation of property
may move for the property's return. The motion must be filed in
the district where the property was seized. The court must
receive evidence on any factual issue necessary to decide the
motion. If it grants the motion, the court must return the
property to the movant, but may impose reasonable conditions to
protect access to the property and its use in later proceedings.
Special Master:
Federal Rules of Civil Procedure Rule 53. Masters
(a) Appointment.
(1) Scope. Unless a statute provides otherwise, a court may
appoint a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend findings of fact
on issues to be decided without a jury if appointment is warranted
by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a difficult
computation of damages; or
(C) address pretrial and posttrial matters that cannot be
effectively and timely addressed by an available district judge or
magistrate judge of the district.
(2) Disqualification. A master must not have a relationship to the
parties, attorneys, action, or court that would require
disqualification of a judge under 28 U.S.C. §455, unless the
parties, with the court's approval, consent to the appointment
after the master discloses any potential grounds for
disqualification.
(3) Possible Expense or Delay. In appointing a master, the court
must consider the fairness of imposing the likely expenses on the
parties and must protect against unreasonable expense or delay.
(b) Order Appointing a Master.
(1) Notice. Before appointing a master, the court must give the
parties notice and an opportunity to be heard. Any party may
suggest candidates for appointment.
(2) Contents. The appointing order must direct the master to
proceed with all reasonable diligence and must state:
(A) the master's duties, including any investigation or
enforcement duties, and any limits on the master's authority under
Rule 53(c);
(B) the circumstances, if any, in which the master may communicate
ex parte with the court or a party;
(C) the nature of the materials to be preserved and filed as the
record of the master's activities;
(D) the time limits, method of filing the record, other
procedures, and standards for reviewing the master's orders,
findings, and recommendations; and
(E) the basis, terms, and procedure for fixing the master's
compensation under Rule 53(g).
(3) Issuing. The court may issue the order only after:
(A) the master files an affidavit disclosing whether there is any
ground for disqualification under 28 U.S.C. §455; and
(B) if a ground is disclosed, the parties, with the court's
approval, waive the disqualification.
(4) Amending. The order may be amended at any time after notice to
the parties and an opportunity to be heard.
(c) Master's Authority.
(1) In General. Unless the appointing order directs otherwise, a
master may:
(A) regulate all proceedings;
(B) take all appropriate measures to perform the assigned duties
fairly and efficiently; and
(C) if conducting an evidentiary hearing, exercise the appointing
court's power to compel, take, and record evidence.
(2) Sanctions. The master may by order impose on a party any
noncontempt sanction provided by Rule 37 or 45, and may recommend
a contempt sanction against a party and sanctions against a
nonparty.
(d) Master's Orders. A master who issues an order must file it and
promptly serve a copy on each party. The clerk must enter the
order on the docket.
(e) Master's Reports. A master must report to the court as
required by the appointing order. The master must file the report
and promptly serve a copy on each party, unless the court orders
otherwise.
(f) Action on the Master's Order, Report, or Recommendations.
(1) Opportunity for a Hearing; Action in General. In acting on a
master's order, report, or recommendations, the court must give
the parties notice and an opportunity to be heard; may receive
evidence; and may adopt or affirm, modify, wholly or partly reject
or reverse, or resubmit to the master with instructions.
(2) Time to Object or Move to Adopt or Modify. A party may file
objections to—or a motion to adopt or modify—the master's order,
report, or recommendations no later than 21 days after a copy is
served, unless the court sets a different time.
(3) Reviewing Factual Findings. The court must decide de novo all
objections to findings of fact made or recommended by a master,
unless the parties, with the court's approval, stipulate that:
(A) the findings will be reviewed for clear error; or
(B) the findings of a master appointed under Rule 53(a)(1)(A) or
(C) will be final.
(4) Reviewing Legal Conclusions. The court must decide de novo all
objections to conclusions of law made or recommended by a master.
(5) Reviewing Procedural Matters. Unless the appointing order
establishes a different standard of review, the court may set
aside a master's ruling on a procedural matter only for an abuse
of discretion.
(g) Compensation.
(1) Fixing Compensation. Before or after judgment, the court must
fix the master's compensation on the basis and terms stated in the
appointing order, but the court may set a new basis and terms
after giving notice and an opportunity to be heard.
(2) Payment. The compensation must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within the court's
control.
(3) Allocating Payment. The court must allocate payment among the
parties after considering the nature and amount of the
controversy, the parties’ means, and the extent to which any party
is more responsible than other parties for the reference to a
master. An interim allocation may be amended to reflect a decision
on the merits.
(h) Appointing a Magistrate Judge. A magistrate judge is subject
to this rule only when the order referring a matter to the
magistrate judge states that the reference is made under this
rule.