Fed Courts Fall 2009 Fletcher

8/12/2019 Fed Courts Fall 2009 Fletcher

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To effectively implement the powers of the national government; to respond to the feat that state courts might not

fully enforce and implement federal policies

Uniform interpretation of the Constitution and laws of the United States

For protection of individual liberties (Madison's view)

To resolve disputes between the states

TWO.Art III 2 vests judicial power "in one supreme Court and in such inferior courts as Congress may from time to

time establish."

Randolph's view. Lower federal courts would encroach upon the rights of the states, and state courts would becompetent to do the work required.

Madison's view. State courts were likely to be biased against federal law and could not be trusted; also appeal to the

Supreme Court would be inadequate to protect federal interests because the number of such appeals would exceed the

Court's limited capacity to hear and decide circumstances.

Madisonian Compromise. The constitution would provide for a supreme court, but lower courts would be left to

Congress.

THREE. Assures the independence of the federal judiciary by according all judges life tenure during good behavior and

salaries that cannot be decreased during their time in office.

FOUR. Defines federal power in terms of nine categories of cases and controversies:

1. Federal Question. arising under this Constitution, the laws of the United States, and treaties made, or which shall

be made, under their authority;--

2. Ambassadors. to all cases affecting ambassadors, other public ministers and consuls;--

3. Admiralty. to all cases of admiralty and maritime jurisdiction;--

4. U.S. is a Party. to controversies to which the United States shall be a party;--

5. State-State Diversity. to controversies between two or more states;--

6. State-Citizen Diversity. between a state and citizens of another state;--

7. Citizen Diversity. between citizens of different states;--

8. Land Diversity. between citizens of the same state claiming lands under grants of different states,

9. State/Citzen-Foreign Diversity. and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the

Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have

appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall

make.

Taxonomy:

Chemerinsky: breaks C&Cs into (1) power to vindicate and enforce the powers of the federal government (arising

under, U.S. as a party, foreign policy through ambassadors, etc.) and (2) insterstate umpiring function, resolving

disputes between states and their citizens.

Frank: breaks into (1) those relating to an effective national government, (2) to international affairs, and (3) to

property and trade.

Hart & Weschler: into (1) vindication of federal authority, (2) foreign affairs, (3) interstate umpiring, and (4)

controversies between citizens of different states.

FIVE. Allocates judicial power between Supreme Court and lower federal courts.

1. USSC has original jdx over cases affecting ambassadors, other public ministers and consuls, and those in which a

state shall be a party.

2. USCC has appellate jdx, both as to "law and fact," subject to "such Exceptions and under such regulations as

Congress shall make."

3. USSC states that Congress can give lower federal courts concurrent jdx even over those matters where Constitution

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states the USSC has original jdx.

SIX. Trial by jury for all crimes except cases of impeachment.

WHAT ARTICLE III DOES NOT ADDRESS.

1. no explicit power for federal courts to declare federal and state laws unconsitutional

2. no explicit statement about relationship between federal courts and state courts

III. The Judiciary Act of 1789

Important because (1) several portions of it have never been changed (like the Rules of Decision Act) (2) was drafted by the

first Congress, and may of the drafters of the Constitution, so it sheds light on the proper interpretation of theConstitution.

No federal question jdx; just jdx for specific topics authorized by Congress.

IV. Theories of Legal Philosophies

Christopher Columbus Langdell. Law as geology; cases as rocks. Examine and compare the rocks, and see what standard

can be drawn out from them.

Legal Realism. Analysis of the law requires analysis of (1) intent of judge, (2) motivation of judge, and (3) what judge

had for breakfast.

Legal Process School. By paying attention to legal processes, one can limit or control the corrosive insight of legal

realists.

Cases & Controversies: Justiciability

I. Background

A. Policies underlying justiciability requirements:

1. Separation of Powers.Defines the judicial branch, determines when it is appropriate to wield power and when it is

necessary to defer to other branches of government

2. Conservation of Judicial Resources. Allow federal courts to focus attention on matters most deserving of review

3. Improve Judicial Decisionmaking. Provide federal courts with concrete controversies best suited for judicial

resolution

a. Ensure concrete controversies and adverse litigants

b. Depend on parties to fully present all relevant information

4. Fairness.Especially to individuals who are not litigants before the court; prevent the courts from adjudicating the

rights of those not parties to a lawsuit.

5. Filter out issues that do not lend themselves to judicial adjudication. Limits topics to those the court is

"designed" to hear.

a. Are there too many parties with different interests and views?

b. Is a final decision desirable?

c. Is there a traditional judicial solution to the problem, or does the problem require a complicated scheme?

(redistricting, consent decrees, etc.)

B. Limitations on Courts' Power

1. Case or controversy limitation. A constitutional limitation

2. Justiciability limitation: not clear if constitutional

a. Sometimes seen as part of case or controversy limitation

b. BUT often involves careful consideration of non-constitutional prudential factors.

C. Judicial Review

1. Marbury v. Madison (1803)."It is emphatically the province and the duty of the judicial department to say what

the law is (and other branches must follow our view)"

a. FACTS. P was appointed a justice of the peace by Adams before he leaves presidency; Jefferson refuses to

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3. Finality. The federal court will not decide a case if its decision is liable to be overturned by one of the coordinate

branches.

C. Source of the Prohibition:Nothing in Article III prohibits judges from issuing advisory opinions.

D. Justifications for the Prohibition:

1. Case Load.However, not historically true -- at time of Correspondences, USSC merely heard admiralty disputes

and contractual matters.

2. Lack of Expertise. Without two advocates, justices would have to do all the work researching the issues. Perhaps

executive is in better position to develop this expertise.3. Power. Might be more powerful if they answer questions in the form of cases than in the form of advice; no promise

from Jefferson that exec will abide by the answers. Jefferson wanted the answers to come from the USSC because

they were a prestigious body; USSC says "if you want our prestige, you have to do it our way."

E. RULE 1: No Legal Advice.

1. The RULE: An Article III court will not answer hypothetical questions of law from a coordinate branch of the federal

government about the legality of the contemplated conduct.

a. Correspondence of the Justices (1793)

Justices decline to answer Washington's questions about international law, stating that to do so would provide

advisory opinions and violate the limitations on judicial power established by Article III. Arose out of US

status as a neutral country during Naploleonic Wars

NOTE: this is not the only possible reading of Article III. Does not say "shall extend and will only extend

to . . ." Could interpret advisory opinions to be outside "judicial power."

Reasons for ban on advisory opinions:

1) Case Load.Might be true now, but was not true at the time. Jay quit USSC to be governor of New

York.

2) Expertise.At the time, executive branch had little knowledge about international law.

3) Power. Perhaps they would be more powerful if they answer questions in the form of cases rather than

in the form of advice.

4) No adverse parties. Court would not likely to be as well informed about ramifications of the actual

consequences of their answers.

5) No premature decisions. Court might eventually be called upon to decide cases in which these legal

questions arose, unwise to commit to answers it might reject upon more mature reflection.

b. NOTE:some states allow advisory opinions.

In MASS, "upon solemn occasions," legislature may as the SC questions. Court is not bound by the answer

they give.

c. KEY: suits specifically authorized by Congress may lead to similarly advisory opinions.

F. RULE 2: No executive or legislative revision.

1. The RULE: Article III forbids any judgment of a court that is not final because a legislative or executive branch can

review the judgment. Judgments within the powers vested in courts by the Judiciary Article of the Constitution may

not lawfully be revised, overturned or refused faith and credit by another Department of Government.

2. Justification:SOP. Would interfere with independence of the judicial branch by depriving the judgments of

finality.

3. Executive Revision. It is a threat to the exercise of Article III jdx to have revision by the exec branch.

a. Hayburn's Case (1792). Invalid Pensions Act of 1792 gives those claiming to be injured war vets ability to

come before Art III judge to make determination of injury and pay; then forwarded to secretary of war who can

overturn "in case of imposition or mistake." Court never heard the case, butfive of six justices found the

assignment of these tasks to be unconstitutional because it would violate separation of powers because the

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executive branch had the final say. Because it's not final, it's not a judgement, but rather an advisory opinion.

RAISED both execand legislativerevision issues:

LEGISLATIVE. Even if a claimant were approved by the Secretary, Congress could refuse to pay the

pension.

EXECUTIVE. Secretary of war could disagree with the court's findings, make changes.

Fletcher Note: Hayburn stands for a sort-of turf protection (power grab), but also a form of discipline for the

system

KEYWORDS: advisory opinion, finalityb. Chicago & Southern Airlines v. Waterman (1948). USSC said federal courts could not review Civil

Aeronautics Board decisions awarding international air routes because of provision allowing president to

disregard or modify judicial rulings. [I]f the President may completely disregard the judgment of the court, it

would be only because it is one the courts were not authorized to render. Judgments within the powers vested in

courts by the Judiciary Article of the Constitution may not lawfully be revised, overturned or refused faith and

credit by another Department of Government.

4. Legislative Revision

a. Gordon v. US (1865).Statute governing court of claims provided for form of revision. Gordon holds that if

revision is built into the statute, it's too much like Hayburn's case (no finality). IF it is de facto power (due to

sovereign immunity, perhaps), that's okay.

b. Glidden v. Zdanok (1962).From 1956-77, Congress provided that any judgments of $100K or less were paid

by GAO, but those of more than $100K were to be certified by Sec of Treasury. Glidden addressed issue of

whether judge sitting on court of claims was an Article III judge whose opinions must be final, even for

judgments over $100K. Court held that they were, because confirmed by senate, even though finality of

judgment was in question. Harlan cited historical record and noted that only 15 instances had the US refused to

pay. NOTE: court of claims is now designated as an Art III court.

Postum Cereal v. California Fig Nut (1927).Pre-Glidden case. D.C. Circuit had through statute jdx on

appeals from PTO on certain patent and trademark determinations, but statute stated the DC circuit's opinion

shall only affect the parties, with no stare decisis effect. Court held it had no jdx, because lack of stare decisis

it was not a judicial judgment, but rather "a mere administrative decision."

c. Plout v. Spendthrift Farm (1995).In Lampf, court construes the statute of limitations in securities violations.

Congress passes law to extend statute, authorizes cases to be reopened. Scalia says this is an impermissible

legislative revision; says framers were trying to "escape ruins of old English structure." As long as a case has

gone to final judgment, any change of rule must be applied by the court. Fletcher thinks this is ridiculous,

because Rule 60(b) allows courts to reopen judgements if a court has made a mistake.

d. EXCEPTION: While Congress cannot reopen a final judgment, it has successfully limited existing decrees:

Miller v. French (US 2000).Prison litigation reform act sought to limit the court's ability to institute

changes in prison system. Limited judicial power to enter decree; decree had to be dissolved after time. Court

sustains; this is a change in ongoing regime. O'Connor: nothing in Plaut or Hayburn restricted Congress's

authority to alter prospective relief on previously entered injunctions.

5. Judicial Revision

a. The RULE: Prohibition against revision does not apply to judicial revision. Congress (or the courts) can

require a judicial judgment to be judicially reviewed. Judicial revision of an earlier decision is not fatal to

exercise of Article III

b. Tutun v. United States (1926). Art III judges regularly preside over naturalization ceremonies. State provides

for no res judicata for these ceremonies. Court holds that naturalization ceremonies/decisions may be set aside in

later de novo judicial proceedings.

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c. Also,Rule 60(b):

On motion and just terms, the court may relieve a party or its legal representative from a final judgment,

order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move

for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing

party;(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been

reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

G. RULE 3: No feigned cases.

1. The RULE: Article III courts cannot hear feigned cases in which the parties merely pretend to be adversaries.

Without adversary parties, the case is not justiciable because there is no case or controversy.

a. US v. Johnson (US 1943). Tenant brings challenge to wartime wage and price controls during WWII. L and T

collude to create a suit; L charges more than allowed, and T brings suit, L defends on constitutionality. But T

doesn't know what the suit is about, never meets lawyer, doesn't know what damages are. But DOJ becomes

notified of suit and US joins as a party. Court holds that if the case is feigned, it cannot be healed by later

joinder.

2. Congress cannot obtain legal advice by artificially setting up a case. However, strength and scope of this prohibition

is not clear.

a. Buckley v. Valeo (US 1976). Congress passes campaign finance reform bill; with election coming up,

questions are raised about first amendment problems with limiting $ people can spend. Bill includes provision

that any person eligible to vote for president may bring suit in court to challenge any provision; provides

accelerated direct appeal to the USSC. USSC accepts cert on a number of questions, and issues holdings.

Fletcher thinks this was very bad -- the holding of Buckley was very broad, and the courts lacked knowledge of

how campaign finance works.

NOTE: different from Correspondence because the opinion was binding and there were adversaries, but still

shows problems with feigned cases and why justiciability matters.

b. Muskrat v. United States (US 1911). Congress had allotted tribal lands to certain Indians, enlarged group of

entitled people. Congress passes law providing for lawsuit between specific Ps and Ds to bring declaratory

judgment that 5th amendment was not violated; offers to pay atty fees. Court dismisses for want of jurisdiction.

Not clear why -- maybe no "case or controversy," maybe because at the time declaratory judgments were not

permitted.

Interests of the Native Americans and the government were not at all adverse

Congress simply had adopted a statute authorizing the federal courts to issue an advisory opinion on the

constitutionality of a statute

BUT: precise rationale for the court's holding has been hard to determine; it's possible that Muskrat has

been abandoned because of Declaratory Judgment Act.

c. Declaratory Judgments. Court has found DJA to be constitutional.

South Carolina v. Katzenbach (1966). VRA authorizes a state to seek a declaratory judgment that a

proposed change in state voting practices does not violate the Act.

Aetna Life Ins. v. Hayworth (1937).First case under DJA, upheld constitutionality of the DJA.

3. Exceptions to the Feigned Case? While the Court will not hear cases in which the parties pretend to be adversaries,

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often the court will tolerate a certain level of shared interest between P and D.

a. Test Cases. In test cases, a P "manufactures" a controversy in order to challenge a law. Courts generally permit

these as long as other justiciability requirements are met. As long as the interests of the parties are genuinely

adverse, the fact that the case may have been framed as test litigation does not prevent an Art III court from

hearing it.

Evers v. Dwyer (US 1958).P rides bus once, refused to obey an order to sit in the back, and got kicked off.

Brings suit. Court holds case is justiciable even though P only rode bus for the purpose of instigating

litigation.b. Institutional Reform Cases. These pose a special problem; D is typically head of a state institution, often will

have sought increased funds from legislature to improve the institution's conditions, so he may want the same

result the Ps are seeking.

Pelican Bay Cases.Judge Henderson hears case about abuse by prison guards. State of CA does not take

appeal, because they know Judge is right and there is a problem to solve. Fletcher argues state does this

because no one has the political capital in the state to demand prison reform; a feigned or collusive case in a

way.

The Gay Marriage Federal Case. CA Attorney General does not intend to appeal if the state loses in the

N.D. Cal. case, and CA has not been active in litigating the case.

III. Standing

A. The RULE: Standing is the determination of whether a specific person is the proper person to bring a matter to the

court for adjudication. Requirements for standing are (1) cognizable injury (2) resulting from defendants action (3)

which is remediable by the court. In addition, the court often exercises a prudential limitation, requiring (4) the

plaintiffs own rights to be violated rather than a third party.

B. Justifications for the Standing Doctrine

1. Ensuring litigants are truly adverse, and therefore likely to present the case effectively.

2. Ensuring that the people most directly concerned are able to litigate the questions at issue

3. Ensuring that a concrete case informs the court of the consequences of its decisions

4. Preventing the anti-majoritarian federal judiciary from usurping the policy-making functions of the popularly elected

branches

C. Historical Perspective

1. Article III as a separately trans-substantive doctrine (rules that apply in every case) is a relatively new arrival in the

law. Standing and the other justiciability doctrines are largely a creation of the second half of the 20th Century.

2. This doesn't mean that earlier, everyone could sue for whatever they want; it was a character of the legal system. A

person X had a legal duty, and Y had a right to enforce that duty in a legal proceeding.

3. But with the rise of the administrative state and the enforcement of public values changed our notions of legal rights

and duties, and standing has emerged as the doctrine to limit the court.

4. Ashwander v. TVA (1936). Justice Brandeis'sconcurrence stresses seven prudential "avoidance rules":

a. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding

b. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it

c. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it

is to be applied.

d. The court will not pass upon a constitutional question, although properly presented on the record, if there is

also present some other ground upon which the case may be disposed.

e. The Court will not pass upon the constitutionality of a statute unless the plaintiff was injured by the operation

of the statute.

f. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of

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its benefits

g. Even if serious doubt concerning the validity of an act of Congress are raised, the Court will first ascertain

whether a construction of the statute is fairly possible by which the question may be avoided.

h. Fletcher: Frankfurter is faithful to these virtues, but Alexander Bickel tries to turn descriptive into normative.

In practice, these virtues are erratic, dishonest, and inconsistent.

D. Critique of Standing

1. Dissent in Flast v. Cohen: Standing is a word game played by secret rules.

2. Fletcher: standing is in need of an International Shoe-sized unraveling.3. The Structure of Standing, W. Fletcher

a. Intellectual structure of standing law is ill-matched to the task it is asked to perform

b. Abandon the idea that Article III requires an injury in fact

c. Instead, standing should simply be a question on the merits of the P's claim.

d. Standing as docket control.For years, the court had mandatory jdx, and needed a way to avoid hot potato

cases. Since 1988, their jdx has been almost totally discretionary. Standing as a docket control mechanism has

outlasted its use.

e. Fletcher on Statutory v. Constitutional Rights

(1) If duty is statutory, Congress should have unlimited power to define the class of persons entitled to

enforce that duty.

(2) If duty is constitutional, the constitutional clause should be seen not only as the source of the duty, but

also as the primary description of those entitled to enforce it.

(a) Congress should have some, but not unlimited, power, to grant standing to enforce constitutional

rights.

(b) Nature and extent of that power should vary depending on the duty and constitutional clause in

question.

E. The Requirements

1. Injury in fact: that P personally suffered some actual or threatened injury

2. Causation:that the injury bears a causal relationship to the challenged conduct of the D

3. Redressability:that the proposed relief will redress or remedy the injury in question.

4. NOTE: Standing is determined at the time of the filing of the complaint. Any later-arising defects are properly

determined under mootness. (Laidlaw).

F. Injury in Fact

1. RULE.P must show that he personally has sustained or is immediately in danger of sustaining some direct injury

as a result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not

conjectural or hypothetical.

2. Purpose. A P's personal stake in the outcome of the controversy assures that concrete adverseness which sharpens

the presentation of issues which the court so largely depends on for illumination of difficult questions. ( Baker v.

Carr).

3. Fletcher Criticism. Cannot be applied in a non-normative way -- there cannot be a merely factual determination of

whether P is telling the truth about her sense of injury. In the hands of the court, the injury requirement has become

a normative criterion, with the court saying "we choose not to recognize these kinds of injuries."

a. Fletcher's Bicycle Example. F gives a bicycle to daughter D1 and nothing to D2. D2 says, "that's not fair." We

say, "the gift to D1 didn't hurt you," but it does -- she feels sad and a sense of injustice. Is this injury not real

enough to get her into court to challenge the gift? When F says "it doesn't hurt you," he is saying "I am denying

that the familial equal protection clause applies to you." Not an injury in fact,but an injury F has chosen not

to recognize as a legal injury.

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b. Fletcher's Playground Example. P is being called names on the playground. Injury?

4. Personally Suffered Injury. An irreducible minimum of Article III limit of judicial power is the requirement that a

party show he personally suffered actual or threatened injury.

a. Insufficient personal injury:

(1) Fairchild v. Hughes (1922).P seeks to have the 19th amendment declared unconstitutional. Court

(Brandeis) says P's "alleged interest in the question submitted is not such as to afford a basis for this

procedeeding . . . it is not a case, within the meaning of Art III 2 . . . and no claim of relief is brought

before the courts . . ."(2) Allen v. Wright (1984).parents of black children attending public schools, and argued that federal tax

exemptions given to racially discriminatory private schools injured them. Claim they were (1) harmed by

the fact government aid went to discriminating schools and (2) harmed by inability to have their public

schools desegregated. Court says (1) was not a "judicially cognizable injury." However (2) is a cognizable

injury -- children's diminished ability to receive an education in a racially integrated school.

(a) NOTE: Ps also suffered a stigmatic harm, but this is not enough.

(3) Sierra Club v. Morton (1972).SC sued US Forest Service, claiming that its approval of a new ski resort

violated federal statutes and regulations. Claimed "a special interest in the conservation of national parks"

and project would adversely affect the aesthetics and ecology of the area and thus they were "adversely

affected or aggrieved" under 702 of the APA. Court found no standing, because no injury in fact, "no

where did the club state that its members use the area for any purpose, much less that they use in a way

that would be significantly affected by the proposed actions of the Ds."

(4) US v. Richardson (1974).P lacked standing to challenge whether the CIA was violating Art I 9 cl. 7,

requiring "a regular Statement of Account of the Receipts and Expenditures of all public money." P

claimed this harmed his ability to intelligently follow actions of Congress and the Executive. Court said

because impact was common to all members of the public, he was not in danger of suffering any concrete

injury from the activity.

(5) Lujan v. National Wildlife Federation (1990).Ps challenged federal policy lessening the environmental

protection of certain federal lands which they claimed to have used. Court said the allegation was too

general to establish a particular injury; no standing unless they could demonstrate that they used specific

federal land that was being mined under the federal regulations.

(6) Abstract interest in the government's proper application of the Constitution and Laws.See Lujan, Valley

Forge Christian College v. Americans United for Separation of Church and State (1982).

b. Sufficient personal injury:

(1) US v. SCRAP (1973).Law students bring lawsuit under NEPA,object to railroad rate increase approved

by ICC. Argue that increase will make rail transport more expensive, which will make it more expensive

to transport recyclables, which will diminish incentive to recycle, which will lead to more trash in their

towns, which will harm Ps' ability to enjoy their towns.

(2) Heckler v. Matthews (1984).Congress provided larger benefits under SSA to certain women than

similarly situated men. Man brought due process suit,and court upheld standing because he asserted

"right to receive benefits distributed according to classifications which do not without sufficient

justification differentiate solely on basis of sex." Court wrote that "discrimination itself, by perpetuating

archaic or stereotypic notions" or by stigmatizing members of the disfavored group, can cause serious

noneconomic injuries

(3) Friends of the Earth v. Laidlaw (2000).Ps had standing to challenge the alleged mercury discharges

under Clean Water Actbecause they used the affected area for recreational purposes. Environmental Ps

adequately allege injury in fact when they aver that they use the affected area and are persons for whom the

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aesthetic and recreational values of the area will be lessened by the challenged activity.

5. Injury cannot be merely speculative.

a. City of LA v. Lyons (1983).P subjected to chokehold by LA police; P had standing to sue for damages but

did not have standing to seek injunctive relief banning chokehold because he was no more likely to be subjected

to the chokehold in the future than any person.

(1) For a person to have standing to seek an injunction, P must allege a substantial likelihood that he or

she will be subjected in the future to the allegedly illegal policy.

(2) Psychological injury is not enough.b. Lujan v. Defenders of Wildlife (1992).Challenge to a revision of federal regulation that provided that the

ESA does not apply to activities abroad. Ps were naturalists interested in studying the Nile Croccodile in Egypt

and the Endangered Elephant in Sri Lanka. Court found no injury, because they could not show a likelihood

that they would be injured in the future by extinction of the species. For Kennedy, all they needed was a plane

ticket.

6. Injuries to Statutory Rights

a. Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue,

even where the P would have suffered no judicially cognizable injury in the absence of the statute. (from dicta in

Warth v. Seldin and Sierra Club v. Morton).

b. Lujanwas the first case in which the USSC invalidated an act of congress on the ground that it

unconstitutionally conferred standing.

c. Trafficante v. Met Life Ins. (1972). Two white residents of apt complex accorded standing to challenge the

owner's discrimination against black applicants under Civil Rights Act of 1968. Statute defined "person

aggrieved" as "one who claims to have been injured by a discriminatory housing practice."

(1) Douglas for majority: statute showed a congressional intent to define standing as broadly as permitted by

Art III.

(2) White's concurring opinion suggested that without Civil Rights Act, there wouldn't have been standing

under Art. III.

d. But Lujan v. Defenders of Wildlife (1992): Congress cannot expand Article III standing; just statutory

standing.

(1) Kennedy-Souter Concurrence: "Congress has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where none existed before." So perhaps Congress just

has to be very specific in defining the right and the remedy.

e. FEC v. Akins (1998).Group of voters had standing to challenge decision by FEC that American Israel Public

Affairs Committee was not a political committee subject to regulation/reporting requirements. Breyer wrote that

"Congress, by statute, could create a right to information and that the denial of such information was an injury

sufficient to satisfy Art III.

f. Mass v. EPA (2007). Court upheld the standing of a state to challenge a refusal by the EPA to issue regulations

governing greenhouse gas emissions by motor vehicles.

(1) MAJORITY (Stevens): While the EPA suit authorization statute made no reference to standing, Mass

could bring the action because they were "a litigant to whom Congress has accorded a procedural right" and

had quasi-sovereign interests at stake deserving of "special solicitude."

(2) MINORITY (Roberts): state had alleged no threat of imminent or particularized injury.

7. Standing under the APA

a. APA 702: "a person suffering legal wrong . . . within the meaning of the relevant statute" may bring action.

(1) Kenneth Culp Davis. Meaning of 702 should not be derived from 702, but from the legislative history

that said injury in fact is required.

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(2) Jaffe. 702 means what 702 says.

(3) OLD TEST pre-1970:standing to challenge administrative action was based upon the present or

threatened official infringement of an interest protected at common law; upon an interest substantively

protected by a relevant organic statute, or upon an adverse economic impact when a relevant statute

afforded standing to persons "adversely affected" or "aggreived."

(4) Data Processing v. Camp (1970).Justice Douglas tries to respond without resolving the Davis/Jaffe

debate. Douglas holds that you need injury in fact and have to be within zone of interests of the statute.

Douglas says if you are challenging agency action that does not directly control the person's actions, theplaintiff must show that it is within the zone of interests -- that is, the group intended to benefit from the

statute.

(5) Clarke v. Sec. Industries Assn (1987).White clarifies and limits the Zone of Interests test: "test denies a

right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit."

Essentially, "we read broadly any statute perporting to give standing of review of admin actions."

8. Other Types of Injury Sufficient for Standing

a. Injury may be small. No requirement that the injury be of any particular size.

(1) Flast v. Cohen (1968).P challenged expenditure on church/state grounds. Had an injury, even though

only a few cents of total tax payment went to expenditure.

(2) Injury need not be economic.

(a) Trafficante. injury to interest in living in a racially integrated environment

(b) Bakke. opportunity injury (denial of change to compete for seats in medical program)

I. BUT Bakke was equal protection. In EP, injury is the denial of ability to compete.

(3) Injury can be aesthetic or environmental.

(a) Lujan: desire to observe an animal species, even for purely aesthetic purposes, is undeniably a

cognizable interest for the purposes of standing.

(4) Qui Tam Actions. Actions brought on behalf of the government

(a) Vermont Agency of Natural Resources v. US ex rel Stevens (2000). Upholds qui tam act under

theory that P is acting as the US's assignee.

9. Injuries Not Sufficient for Standing

a. Injury cannot be merely general. Cannot be shared generally by population, must affect the P in particular.

(1) Allen v. Wright (1984).

(2) US v. Hays (1995). Ps live in one district, and bring equal protection challenge to racial gerrymandering

of another district. Court says because they were not in the allegedly gerrymandered district, they haven't

suffered an injury.

(3) Lujan v. National Wildlife Federation (1990)

(4) Friends of the Eatth v. Laidlaw

G. Causation

1. The RULE:P must show that the injury was caused or is fairly traceable to the D's alleged wrongdoing.

2. Linda RS v. Richard D (1973). State of Texas statute says fathers of illegitimate children are not required to pay

child support. In another suit, the USSC says discrimination between legitimate and illegitimate children is

violation of equal protection. L brings suit not just to statute, but to practice of Texas prosecutors to only go after

fathers of legitimate children. Court finds no standing because of causation problem; even an injunction

commanding state prosecutors would not ensure that the mother would receive any additional child support money;

relief requested would only result in the jailing of the child's father. Possibility that prosecution would lead to

payment of support was speculative.

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a. NOTE: court mixes up redress with causation.

3. Warth v. Seldin (1975).Ps challenge city's zoning practices. Court finds lack of standing; might not be able to

live in Pennfield even if ordinances were invalidated.

4. Allen v. Wright (1984).IRS doesn't give tax exempt status to schools that discriminate; parents of black children

in school districts subject to desegregation orders try to get the IRS to change enforcement policies. Court

(O'Connor) holds that causation is wanting; unclear what the practical effect of the policy was; the injury is indirect

and results from the independent action of some third party not in court; IRS did not cause the segregation.

a. Brennan Dissent: This suit is being dismissed at 12(b)(6) phase, before we even know the facts. Maybe there isa causal relationship; maybe experts can show it.

H. Redressability

1. The RULE:P must allege and prove that the personal injury is likely to be redressed by the requested relief.

Vindication of the rule of law is not enough to remediate one's injury.

2. Focuses on the degree to which the proposed remedy would eliminate or redress the harm P allegedly suffered.

3. An inherently factual question (hard to make at outset of lawsuit).

4. Also depends on how the court characterizes the injury (Linda RS)

5. Causation and redressability are assessments of probability

6. BUT suits for injunctive relief and declaratory relief can pose a closer question, especially when Ps seek to compel

the government to take action against some third party.

7. Redressable:

a. Allen v. Wright (1984).Ps did not show how enjoining the exceptions would create a significant impact for

desegregation. Court also refused to remedy that would seek restructuring of apparatus established by Exec

Branch to do its legal duties; SOP prevents such a sweeping injunction.

b. Simon v. Eastern Ky Welfare Rights Org (1976).Ps challenged IRS ruling that reduced obligation of a

hospital to provide care to poor people while still retaining tax status of a charitable organization; no standing

because no showing that a different IRS ruling would make the hospital provide more care to the poor.

c. Linda RS v. Richard D (1973). Only a speculative connection between desired result (payment of child

support) and remedy sought (criminal prosecution of delinquent father). Court misreads what P is asking for --

not asking for an interference with prosecutorial discretion through an order they proscute, merely asking that

prosecutors do not take into account the legitimacy of the child.

(1) Fletcher on Linda RS: wrong and desperately wrong. P's contention is supported that the threat of

criminal prosecution will have a significant effect on the behavior of delinquent fathers.

d. Warth v. Seldin (1975). No showing that the invalidation of the challenged zoning laws would have resulted

in the construction of the housing that Ps could afford. Declaring the ordinances unconstitutional would not

create housing for the Ps.

I. Prudential Standing

1. RULE:Even if a P has a sufficient stake in the dispute to satisfy Article III, a federal court may refuse to hear the

case because of "prudential rules of standing that, apart from Article III's minimum requirements, serve to limit the

role of the courts in resolving public disputes" if Congress has not been explicit.

a. FLETCHER: A prudential standing question arises in cases where the plaintiff has Article III standing, but is

close to the Article III line, and where Congress has not been explicit in granting standing. The Court has not

been systematic in telling us precisely what those things are, but they at least include such things as degree of

alleged harm, redressability, etc.

b. "Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction."

c. Where stake of P is minor, some issue about chain of causation, some issue about the various constitutional

components of standing, but Art III standing is not lacking, the court may find no standing on prudential

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grounds.

2. Prudential standing under a statute. Ps attempting to sue under implied cause of action can be denied standing if

statute is unclear

a. Rule is in effect a plain statement rule; somewhat arbitrary fourth standing requirement in statutory standing

cases.

3. Taxpayer Standing.

a. General RULE: no taxpayer standing.

(1) Frothingham v. Mellon (1923). Taxpayers could not rely on their status as taxpayers to confer standingto challenge allegedly illegal federal expenditures (no use of the word "standing" in the opinion).

(2) Doremus v. Board of Education (1952).State taxpayer sought to challenge required reading of Old

Testament in public schools; court denied standing because no specific expenditure was challenged.

b. EXCEPTION: Taxpayer standing is allowed in limited circumstances to challenge Congressionally approved

expenditures alleged to be in violation of the Establishment Clause.

(1) Flast v. Cohen (1968). Taxpayer has standing to challenge federal expenditures in support of religious

institutions.

(a) Two part test for taxpayer standing:

I. Expenditure must be an exercise of the taxing and spending power under Art I 8 rather than

"incidental expenditure"

II. Expenditures must be prohibited by some specific constitutional limitation

(b) Stewart Concurrence.this is an Establishment Clause case, and there is something unusual and

important about this Clause -- it's specific purpose is for those taxpayers who don't want federal

money going to religious institutions they don't belong to.

(2) Cutbacks on Flast

(a) Valley Forge Christian College (1982).Government is giving away federal property to a Christian

college. Taxpayers bring suit. Court holds no standing because not a federal spending under Art I 8

(even though still an Establishment Clause case).

(b) Hein v. Freedom From Religion Foundation (2007). White House grant program without specific

federal statutory authorization, goes to centers within federal agencies that share faith-based activities.

No standing because no specific authorization under Art I 8.

I. Fletcher: they might as well have overruled Flast.

4. Generalized Grievance as Constitutional Bar

a. Lujan: court treated the bar on citizen standing as constitutional

b. But AKINS: federal statute created a right to information and the denial of this right was a concrete injury

sufficient for standing.

J. Congressional Power to Confer Standing to Sue

1. The RULE:Congress cannot confer on Article III federal courts jurisdiction not authorized by Article III

2. Private Attorney General Cases. See Lujan,FEC v. Akinsabove.

K. Third Party Standing

1. The RULE:Only if the person whose right is centrally at stake is somehow impeded from asserting that right and

someone else is a protector of that right will the lawsuit be allowed.

2. Three major exceptions to the prohibition against third party standing:

a. When Third Party will find it difficult to assert her own rights.

(1) Bush v. Gore (2000).Florida voters are the ones that may have had their right to vote compromised, but

they cannot organize to bring a suit.

(2) Eisenstadt v. Baird (1972). Doctor distributed contraceptives to non-married couple; court allowed him

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to assert rights of unmarried persons, even though unmarried persons are not themselves subject to

prosecution.

b. When there is a close relationship between the party and the third party.

(1) Doctor-patient,but only when the doctor faces criminal prosecution

(a) Tileston v. Ullman (1943).State statute prohibits use or distribution of contraceptives. Court denies

doctor standing to assert rights of his patients. Failed to allege a personal economic interest. Fletcher:

court misreads P's complaint to get their desired outcome -- P had said in his complaint that he would

be criminally prosecuted, so injury would be to him.(2) Teacher-student

(a) Pierce v. Society of Sisters.School accorded standing to challenge an Oregon law requiring all

children to attend public school:

I. close relationship to the parents

II. school was part of the regulated activity

(3) Vendors-customers.

(a) Craig v. Boren (1953).Boy and vendor bring suit to challenge state law permitting women under 21

to buy booze but not men. Boy turns 21 before suit. Court allows vendor to bring suit; vendor also

has economic injury.

I. MP NOTE: be sure to analyze the relationship; consider the impact on third-party legal interests

(b) Barrows v. Jackson (1953). When racially restrictive real estate covenants were permitted, P brought

suit on ground it was unconstitutional and involved state action. Court allows seller to assert the

rights of a black would-be buyer to bring suit

(c) Trafficante (1972). Is this a 3PS case? Both share injury of not being able to live together, but not

the same kind of harm; B renter is being denied place to live, and W renter is being denied a diverse

community.

(d) Havens Realty v. Coleman (1982). Black "tester" who identifies realtors discriminating on basis of

race, then brings suit. Injury in fact? P does not actually want to live there, this is his job. COURT: P

is given right by statute not to be lied to; fact he was lied to is his harm.

c. Overbreadth Doctrine.A person generally can argue only that a statute is unconstitutional as it is applied to

him or her BUT overbreadth doctrine permits a person to challenge a statute on the ground that it violates First

Amendment rights of third parties not before the court.

3. NOTE:Third party ALSO has to meet Art III standing requirements

4. Does it depend on the merits?

a. CONTRACT EXAMPLE. In a third-party beneficiary contracts case, intended beneficiary is allowed to sue to

enforce the contract, but an incidental beneficiary is not.

b. PROPERTY EXAMPLE. Vested remainderman may bring suit against holder for waste; contingent

remanderman may not.

c. These questions were never thought to be anything but decisions on the merits. But here, court treats them as if

they could be decided on 12(b)(6).

d. Gary Gilmore's Mother. Court says mother can't intervene to assert death row inmate's constitutional rights.

Even thou

L. Bearing of State Law on Standing

1. State courts are not bound by Article III, so they may hear suits brought by Ps without Article III standing,

including suits based on federal law.

a. Tileston v. Ullman (1943).Connecticut Supreme Court reached the merits of doctor's case re: contraception

law, but USSC dismissed for lack of standing.

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(1) Fletcher: court wanted to avoid this case:

(a) Misdiscribes his interest and what is on the record

(b) T said "if I prescribe this, I will go to jail."

(c) Mandatory USSC jdx at that time

b. If state court issues an opinion interpreting federal law, USSC can hear an appeal by a losing D.

(1) ASARCO v. Kadish (1989).Ps without Article III standing obtained state court judgment that leases of

state-owned property were illegal under federal law (state court thinks they are sweetheart deals). Ds sought

USSC review. Court held that even though Ps would not have standing to bring case in federal court, therewas standing; Injury had arisen in the state court's ruling, not from the original grounds of the lawsuit.

Thus, federal courts had the power to vindicate federal rights taken away by state courts.

(a) Fletcher: this gives us the exact opposite of the situation 1789 JA 25 contemplates

I. 25: If federal right is denied, USSC has jdx; otherwise, no jdx

II. Here, a federal right is granted, and USSC reviews to overturn

c. If a P loses in state court based on a federal claim, the Supreme Court CANNOT hear the appeal

(1) Doremus v. Board of Education. State taxpayer brought state court challenge to required bible reading in

public schools based on First Amendment. NJ state court held against P on the merits; USSC declined to

review because no Art III standing. Leaves NJ decision in tact on the merits.

(a) BUT: who has the legal right to enforce the duty?

IV. Mootness

A. Description of the Mootness Doctrine

1. The RULE: An actual controversy must exist at all stages of federal court proceedings. If events subsequent to

filing of the case resolve the dispute, the case should be dismissed as moot. A case will be mooted if (1) P dies, (2)

change in events make case unnecessary, (3) parties settle the matter, or (4) change or repeal in the law.

2. Is Mootness an Art III requirement or prudential requirement?

a. In early cases (Liner v. Jafco (1964)and DeFunis v. Odegard (1974)), the court characterized mootness as an

Art III requirement. If a case is moot, it is no longer of any direct concern to the litigants. Court's decision

would only resolve a hypothetical question (court would give an advisory opinion).

b. However, more recent cases characterize mootness as a flexible doctrine, potentially not reconcilable with

Art III limits:

(1) Friends of the Earth v. Laidlaw (2000)."Standing in a time frame" argument rejected.

(2) Also, the exceptions to the mootness doctrine suggest mootness may not be a constitutional

limitation:

(a) Cases are not dismissed as moot if there are secondary/collateral injuries

(b) If the issue is deemed capable of repetition yet evading review

(c) If D voluntarily ceases an allegedly illegal practice but is free to resume it at any time

(d) If it is a properly certified class action suit

3. Subconstitutional Doctrine. Cases that are not moot in the Art III sense may nevertheless be dismissed for reasons

of prudence or sound judicial administration.

a. EXAMPLE NEEDED

4. Mootness at the State Level. Generally, much more relaxed standard in state courts: "if Q of continuing public

interest, it is for our purposes no longer moot."Fletcher has not found a state that adopts the USSC mootness

standard.

B. Relation of Mootness and Standing

1. If a case has been fully litigated and only becomes moot toward the end of trial or on appeal, the court can retain jdx

to decide the fully briefed issues.

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2. DeFunis v. Odegaard (1974).P brings suit to challenge law schools affirmative action admission policy, claiming

it violated equal protection clause. Lower court finds for P, and school lets him enroll. By the time it gets to Sup

Ct, P has almost graduated. Case is moot.

a. NOTE: DeFunis is at USSC on cert, not mandatory appeal. Both sides argue it was not moot, but court finds

that mootness is Art III limit in this case.

b. DOUGLAS's DISSENT. Hated affirmative action; weird back-to-nature dissent discussing Indians in the

Northwest.

c. BRENNAN's DISSENT. Not moot -- D could get sick and have to take another semester. Cites (1) no want ofadversary contest in this case and (2) disservice to public interest -- we should try to avoid repetitious litigation.

d. THE OUTCOME. Case is remanded to Washington SC for "proceedings that may be appropriate." WSC rules

on the merits that the affirmative action program is constitutional.

e. ALTERNATE WORLD PROBLEM. If the Washington Supreme Court had held the statute was

unconstitutional and the school continued the program, a P could bring suit in state court, the school could

remove to federal court, and the district court would not be bound by the WSC opinion. But it would be barred

by 28 USC 1738, nonmutual collateral estoppel, from relitigating the state court judgment. Thus the issue

could never make it back to federal court. THE POINT: when there are different standards of justiciability

between federal and state court, we run into major problems

3. Friends of the Earth v. Laidlaw (2000).Garbage dump is sued by environmental group for violating standards. In

the course of the case, D closes dump, but operates others. Court uses voluntary cessation of harm exception --

because D can re-open dump at any time, case is not moot. Court rejects "standing in a time frame" description of

mootness; identifies several exceptions to mootness that would be unconstitutional if mootness was just "standing

in a time frame."

a. Renquist: said mootness was not an Art III doctrine

b. Ginsburg: mootness at the beginning of the case is different than mootness later in the proceedings.Her

justifications:

(1) Sunk costs of litigation

(2) Actual course of conduct in the past frames litigation in a factual context and thereby focuses judicial

decisionmaking

(3) unlawful cessation of past injury deprives a D from any moral entitlement to freedom from judicial

intervention

(4) want to stop the "capable of repetition yet evading review" problem

(5) important public interest in protecting legal system from manipulation by parties.

c. Scalia's Dissent: mootness is standing set in a time frame; it is an Art III limitation

C. Exceptions to the Mootness Doctrine

1. Collateral Consequences. The RULE: Case is not moot if a secondary or collateral injury survives after the P's

primary injury has been resolved.

a. In Criminal Cases, appeal is not merely moot because sentence has been served. There are collateral legal

consequences stemming from the conviction; ability to vote, get a job, susceptibility to temporary restraining

orders, stigma from criminal record.

b. In Civil Cases,a P seeking reinstatement and back pay for alleged discrimination can continue to pursue even

if reinstatement is granted or no longer sought.

2. Voluntary Cessation of Activity. The RULE: The fact that a D has voluntarily discontinued a challenged activity

does not necessarily render a case moot; D cannot moot and settle a case, then return to D's old ways.

a. Narrow exception; only if there is no reasonable change that the D could resume the offending behavior is the

case deemed moot.

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b. FOTE v. Laidlaw (2000).Voluntary compliance with permit and closing facilities was not enough; Ds were

not legally bound to stop activity.

c. Rationale:

(1) If D could render a case moot, public interest in adjudicating legality of conduct would be frustrated

(2) D, having obtained strategic dismissal based on mootness, could begin the conduct again.

3. Capable of Repetition, Yet Evading Review. The RULE: A case is not moot if the question presented can

systematically evade review because it remains a concrete controversy for only a short time; a case need not be

dismissed as moot if the situation could repeat as to the now mooted party, and yet again evade review.a. The Standard: unclear. maybe "reasonable expectation" or "demonstrated probability." Not a mere "physical or

theoretical possibility."

b. Some injuries occur and are over so quickly that they will always be moot before the federal court litigation

process is complete.

(1) Roe v. Wade (1973).P had baby by the time case was heard, no longer wanted abortion. But could need

one again later.

c. Requirements:

(1) must be unreasonable to expect a challenge to survive the cycle (election cycle, pregnancy, etc.).

(a) In newer cases, there is also a requirement that conduct occurs with respect to the specific P.

(b) DeFunis (1974).Would not apply here, because Defunis would not be applying to law school again.

(c) In older cases, capable of repetition to anyone is enough.

I. Southern Pacific Railroad v. ICC (1911). Commission had issued cease and desist order that had

expired, no showing that the Commission was going to issue similar orders in the future.

(2) similar issues are likely to arise between the parties in the future.

d. Evidence of Prudentiality of Mootness Doctrine? Renquist argued that this exception suggests mootness is

not an Art III limitation.

D. Mootness in Class Actions. The RULE: If a class representative is mooted out, the fact that there is a certified class

action saves the case from mootness.

1. US Parole Commission b. Geraghty (1980). P sought parole from federal prison but was denied because he failed

to satisfy the criteria of federal parole release guidelines. Brought class action challenging constitutionality of

guidelines, but class cert was denied. G challenges class cert decision, but then gets out of prison on an unrelated

matter. Court allows the challenge to go forward, citing "flexible character" of mootness in class actions.

2. Evidence of Prudentiality of Mootness Doctrine? Court has taken a flexible approach to mootness in class action

suits.

E. Disposition of Mooted Cases in the Federal System

1. Vacatur in Federal Courts

a. If a case goes moot while on appeal but before appellate court has time to review, parties are entitled upon

request to a vacation of the judgment of the lower court. But you have to ask for it.

b. Rationale: District court may have been wrong, so there are adverse consequences coming out of the decision

even though the parties are not interested in litigating it.

c. US v. Munsingwear (1950).Established practice of the court in dealing with a civil case that has been mooted

on appeal is to reverse or vacate the judgment and remand with a direction to dismiss.

d. BUT parties cannot collude to get a judgment vacated to escape the precedential effect of a lower judgment

(1) US Bankcorp Mortgage v. Bonner Mall (1994).Bankruptcy code question; parties reach settlement that

mooted case after USSC accepted petition for review. D asks to vacate judgment below; and court refuses.

Scalia: mootness by reason of a settlement does not ordinarily justify vacatur of a judgment under review.

Judicial precedents are presumptively valid and valuable to the legal community; they are not merely the

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property of private litigants and should stand unless a court concludes that the public interest would be

served by vacatur.

(a) RULE: Mootness has to arise out of some action "independent of the parties" for court to allow vactur

under Munsingwear.

2. Mootness and State Court Decisions.

a. RULE: Mootness on a question of federal law is itself a question of federal law.

(1) Liner v. Jafco (1964).State court held the federal action was moot; USSC said "mootness is a question

of federal law upon which we must pronounce final judgment."V. Ripeness

A. Ripeness Defined

1. Ripeness doctrine seeks to separate matters that are premature or review because the injury is speculative and may

never occur from those cases that are appropriate for federal court action.

a. Requires that a dispute have progressed beyond the point where a legal question is merely hypothetical

b. Designed to ensure that an actual, immediate and concrete controversy is presented to the court.

2. Ripeness History

a. The concept of ripeness is new; it does not show up in Art III discussions until the DJA in 1934; prior to the

DJA, the only way you could get preenforcement review was an injunction.

(1) For injunction, normal equitable rules apply

(2) Purpose of DJA -- to get relief for people who couldn't get an injunction

(3) EXAMPLE. Apartment rules say "no domestic pets." You want a tiger. Can you get a ruling before you

invest in a tiger? This is not a situation where injunctive relief would help you.

3. Constitutional and prudential doctrine:

a. Part of the case or controversy limitation of Article III

b. If the question is too hypothetical/abstract, then the question looks like an "advisory opinion"

c. Some cases may nevertheless be found not ripe for adjudication because of prudential reasons.

(1) EXAMPLE. Abbott Labs' "Balancing Test." Fact that you are balancing hardship to the parties makes the

test appear to be not Art III.

d. Distinguishing from Standing. Standing focuses on whether the type of injury alleged is qualitatively

sufficient to fulfill the requirements of Art III and whether the P has personally suffered the harm, whereas

ripeness centers on whether that injury has occurred yet.

4. Justifications for Ripeness

a. Ensures judges have facts on which to base opinions

b. Stops courts from issuing advisory opinions

5. Critiques of Ripeness

a. Impossible to completely separate it from the merits.

(1) Scharf Article. Depending on view of the merits, judges will have different views on what law says.

Ripeness only appears where the court is unsure about the statute's applicability; that's why the court needs

the additional factual developments.

b. Implicitly imposes a higher pleading standard.

c. Often used to avoid politically challenging questions. Court has used mootness (and standing in general) to

avoid interpretations of establishment clause, equal protection clause, etc.

B. UPW v. Mitchell (1947). Congress passes Hatch Act to protect federal workers from political pressure; forbade workers

from taking political action. Ps are federal workers interested in being politically active. 12 workers, including P, bring

suit under DJA challenging statute's constitutionality. Only P has actually performed political actions. Court (Reed) find

only P's case is ripe; "such generality of objection is really an attack on the political expediency of the Act, not the

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presentation of legal issues."

1. Critiques of UPW: Rights of the parties would have been determined, and a judgment would have res judicata

effect; would not be an advisory opinion (but on the other hand, more facts would have "sharply defined" the

controversy.

2. Fletcher's take: Keep in mind that the DJA is brand new, and court was uncomfortable with pre-enforcement

review. Also, I think this case was overruled by Steffel v. Thompson (below).

C. The Abbott Labs Test. The most widely employed doctrinal formulation for ripeness.

1. Court must evaluate two consideration:a. Fitness of the Issues and Record for Judicial Review

b. Hardship to the Parites

c. Abbot Labs v. Gardner (1966). FDA rule requires established name of drugs to be printed in half-size type

next to trade name every time trade name is used. Statute doesn't say "every time," but regulation does. Drug

companies bring action challenging rule before it has been enforced. Court finds ripeness, introduces two-step

test: (1) fitness of issues for judicial decision and (2) hardship on the parties.

(1) The legal issue is clear. do companies have to follow the rule EVERY time?

(2) The hardship is present. Will affect packaging decisions; companies will either have to break the rule

and risk some agency action. Trust of the public is important (enforcement action could tarnish the brand).

(3) Fletcher's note: not an Art III challenge. Court is using a balancing test, which is incompatible with a

bright-line Art III determination.

d. Toilet Goods v. Gardner (1967).Companion case to Abbott Labs. TG challenges FDA regulation that said

manufacturers of color additives give "free access" to FDA inspectors.Court held that case was not ripe;

regulation said FDA "may" under certain circumstances order inspection and certification of additives "may" be

refused to those who do not allow FDA to inspect.

(1) STEP ONE.Court concluded that waiting for application of the rule would put judicial review "on much

surer footing."

(2) STEP TWO. No hardship -- regulation would not be felt immediately by manufacturers in conducting

day-to-day affairs because they were already under a statutory duty to permit reasonable inspections. If Ps

refused inspections, they'd be denied certification services, which manufacturer could promptly challenge.

e. The TEST:

(1) Fitness of the issues and record for judicial review.

(a) The more a question is a purely legal issue, the analysis of which does not depend on factual context,

the more likely the court will find ripeness.

(b) Abbott Labs. Parties rested this issue on a question of law (did Congress grant the agency this sort

of authority to act?)

(c) If factual question, may need facts to decide.

(2) Hardship to the parties. Factors:

(a) direct effect on everyday business

(b) failure to comply would result in substantial criminal/civil penalities

(c) regulation requires immediate and significant change in behavior.

(d) The more speculative and uncertain the harm, the less likely it is that review will be granted.

f. Three situations in which the court has found enough hardship to justify preenforcement review:

(1) ONE. Choice between possibly unnecessary compliance and possible conviction. (Individual faces with

choice between foregoing allegedly lawful behavior and risking prosecution with substantial consequences.

(a) Ex: Abbott Labs (see above)

(b) Steffel v. Thompson (1974). P wants to distribute leaflets, and his companion has already been

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arrested for doing the same.

(c) Adler v. Board of Education (1952). Teachers were challenging New York statutes that required the

dismissal of public school teachers who advocated the "doctrine that any government in the US should

be overturned by force or violence" or belonged to any organization so believing. Ps brought pre-

enforcement action, arguing statute imposed invalid limitations on freedom of speech, press and

assembly and membership list significance violated due process. Case went to the merits (statute was

constitutional, so implictly held it to be ripe), but Frankfurter saw ripeness problem.

(d) BUT: UPW v. Mitchell.Ps had to violate the statute to get into court.I. BUT BUT AFL-CIO (1973) (same facts as in Adler, but court found the case ripe).

(2) TWO. Hardship where enforcement is certain.

(a) Enforcement of the statute or regulation is certain and only impediment to ripeness is simply a delay

before the proceedings commence.

(3) THREE. Hardship because of collateral injuries; while primary injury is not ripe, other injuries exist to

make the case justiciable

(a) Duke Power v. CESG (1978).Federal law capped nuclear power plants liability at $500M. Citizens

would not actually be harmed until power plant fails, but court held that property value injury had

occurred and made case ripe.

D. Ripeness and the Merits. In some instances (takings claims), a finding by a federal court of lack of ripeness has the

ultimate effect of forcing a claim into state court.

1. Williamson County Regional Planning Comm'n (1985). Ps bring regulatory takings claims, arguing zoning

regulations deprive them of property. Court says you can't come into federal court challenging a regulation as an

unlawful taking under 5th amendment until you have exhausted your state remedies and are entirely sure this is what

state will do; until you have done this, case is not ripe.

a. Forces Ps into state court.

b. Justification: so much wiggle room in regulatory takings, so much back-and-forth that it's very difficult to

know how the regulation will be applied before it is enforced.

2. San Remo Hotel v. City of SF (2005). Court holds that state decision in takings claim has res judicata effect

against P. Ps own hotels in SF subject to regulation requiring them to stay "residential." Gets judgment under law

from state court that says "no taking," then enter federal court, but barred by 1738.

3. Fletcher: I expect these cases to be overruled, because they've put regulatory takings entirely in the hands of the

states, even though it is a federal right.

E. Ripeness as a Prudential Doctrine with Political Overtones

1. Court may find a case unripe because it views a decision as politically inexpedient or does not favor the type of

relief sought.

a. O'Shea v. Littleton (1974). 19 Ps in Illinois bring complaint against state officials, alleging substantial state-

sponsored discrimination in judicial system; magistrate and judge are discriminating. Court finds no ripeness;

no Ps could show they would come before the judge or magistrate in the future, and only allege a general

violation of constitutional rights.

(1) Underlying structural reason why the court is unwilling to get involved: doesn't want to tell the state

court how to do its business. No simple relief here; would require some sort of structural decree, which

court is trying to move away from.

b. City of LA v. Lyons (1983).P in civil rights case had been subjected to chokehold by police; chokehold had

killed a number of people in the past; P sought injunction barring chokehold in the future. Court: no standing

to request injunction because no ripeness; P would have to show he was likely to be charged again.

(1) Again, underlying structural reason: court doesn't want to apply an injunction telling police how to

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apply chokeholds

2. Justiciability and Institutional Remedies. When Ps attempt to challenge institutional behavior through

injunction, the remedies are expensive, delayed, uncertain, and difficult to police/enforce. In cases like O'Shea and

Lyons, we see the Court reluctant to step in when other solutions may exist (in Lyons -- coercion through liability

for damage, and in O'Shea -- political upheaval or remedial action at the state level).

VI. Political Question Doctrine

A. Label applied to a variety of questions that fed courts will not adjudicate.

1. Certain allegations of unconstitutional government conduct should not be ruled on by the federal courts even thoughall of the jurisdictional and other justiciability requirements are met.

2. Not an Article III "case or controversy" limitation, but rather a constitutional SOP or prudential limitation.

A case presenting a political question simply cannot be decided, no matter how ripe or live the dispute and no

matter how great the P's personal stake.

B. Standard formula from Baker v. Carr:

1. Textually demonstrable constitutional commitment of the issue to a coordinate political branch.

a. Two ideas here:

(1) Discretion Theory. Textual commitment may serve as shorthand for describing textual assignment of

"discretion" to another branch. (Souter's concurrence in Nixon: coin toss would be abuse of this discretion)

(2) Interpretive Authority Theory. Could suggest a constitutional assignment of exclusive interpretive

authority to a branch other than the judiciary (more like Renquist's view in Nixon).

(3) In either case, the court still must interpret the underlying constitutional provision to determine where the

relevant discretion or interpretive authority is vested. This may satisfy Marbury's requirement that the court

"say what the law is."

2. Lack of judicially meaningful standards for resolving the dispute

a. This might mean there is simply no law to apply. Or it might mean that a standard has not emerged yet.

(1) Souter's Coin Toss Hypo. Perhaps the court does have meaningful standards for determining if this is a

reasonable resolution of the dispute

(2) Due Process Alternative Universe. In an alternative universe, courts could have determined that "due

process" was a FQ, because of lack of judicially meaningful standards. Instead, they've been making up the

standards for the last 150 years.

(3) The Gerrymandering Story.

(a) Vieth v. Jubelirer (2004). Scalia's plurality opinion cites absence of judicially manageable standards

as ground for holding that a challenge to political gerrymander of Pennsylvania was a nonjusticiable

political question. "No constitutionally appropriate and judicially manageable standards for

determining when state legislatures have gone too far" in designing voting districts.

I. Kennedy concurred, but declined to pronounce partisan gerrymandering claims categorically non-

justiciable.

II. Stevens dissented, finding same framework for racial gerrymandering acceptable: (1) irregularity

of district lines, (2) purpose behind the line drawing, (3) process by which the schemes were

enacted, (4) other evidence of improper considerations motivating the decisions.

III. Plurality argued Stevens' framework were not "discernable in the Constitution." But book

makes argument that strict scrutiny and rational basis review are also not discernible in the

Constitution.

3. Impossible to decide without an initial policy determination of a kind clearly for nonjudicial determination

4. Impossible to decide without expressing a lack of respect due coordinate branches of government

5. Unusual need for unquestioning adherence to a political decision already made.

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6. Potential for embarrassment from multifarious pronouncements by various departments on one question

C. Underlying Considerations:

1. Separation of Powers. Compels courts to recognize the limits of judicial competence and to leave certain issues to

be authoritatively resolved by the exec and legislative branches.

2. Amenable to Judicial Resolution. Legal process concern; does the court have the tools to make this determination?

Is this the sort of thing that an adversarial trial-type system can adduce?

3. Prudence. Is there an unusual need to defer to another branch's decision?

D. Criticisms of the Doctrine:1. Separation of Powers. Judicial role is to enforce the consitituion; court fails to do its job and play its

constitutionally mandated role under Marbury when it leaves constitutional questions to other branches.

2. Confuses deference with abdication.

E. Cases

1. Nixon v. US (1993).Former judge is impeached by House; Senate "tries" him and he is removed from office. Judge

brings action, arguing procedure used by Senate to "try" him (committee, then vote by Senate) is not "trying" him

in sense intended by Impeachment Clause. Court holds that this is a political question.

a. Renquist's opinion: Textually demonstrable constitutional commitment to coordinate political branch:

Constitution gives Senate the power to "try" a judge, and interpreting "try" has been committed to Senate. This

includes judicial review. We will not overturn their judgment.

b. White's concurrence: would reach merits and find that Congress's interpretation of "try" is acceptable (MORE

HERE). "Sole power to try" doesn't mean "sole power to decide what a trial is.

c. Souter's concurrence: "it seems fair to conclude that Senate may determine, within broad boundaries, such

subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy this duty to

"try" impeachments. But if Senate were to act in a manner seriously threatening the integrity of its results, say

by using a coin toss, or simply deciding that an officer of the US is a "bad guy," judicial interference might

well be appropriate.

2. Baker v. Carr (1962)."The case that started it all (besides Marbury)." No changes to district apportionment from

1900 to 1960s, even though countryside empties out and urban areas fill up. So by time of the case, rural districts

have much more power. At this time, the precedent was that reapportionment without involvement of race issue is a

political question. Majority by Brennan finds no political question -- federal courts can hear equal protection claims

against state apportionment schemes.

a. Frankfurter's Dissent: this is a political question!

3. Bush v. Gore (2000). Judges stop a political process. Court had two options: (1) judicial trainwreck, in which it

tarnishes its image, or (2) political trainwreck -- a long and messy political fight, but one that is specifically set out

by the Constitution. Court opted for the first option. Fletch: "decision of the court to intervene was a terribly flawed

decision."

F. Specific Subject Matter Areas Where the Political Question Pops Up

1. Guarantee Clause.

a. Luther v. Borden (1849). Guaranty Clause, "the US shall guarantee to every State in the Union a Republican

Form of Government," could not be used to challenge the validity of Rhode Island state government

2. Constitutional Amendments.

a. Coleman v. Miller (1939). Court "affirmed" judgment of SC of Kansas refusing to restrain Kansas Sec. of State

from certifying that state has ratified the Child Labor Amendment

3. External Relations

a. Goldwater v. Carter (1979). Vacated a lower court judgment holding that president had authority to terminate a

treaty with Taiwan without the approval of Senate. Court held it was a political question; Congress and

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President should duke it out.

Congressional Control of the Distribution of Judicial Power Among Federal and State Courts

I. History and Background

A. The Text of Article III

1. Jurisdiction of the Supreme Court:

a. Art III 1: The judicial power of the United States, shall be vested in one Supreme Court . . .

b. Art III 2: In all cases affecting ambassadors, other public ministers and consuls, and those in which a stateshall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the

Supreme Court shall have appellate jurisdiction,both as to law and fact, with such exceptions, and under

such regulationsas the Congress shall make.

2. Jurisdiction of Inferior Courts:

a. Art III 1: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior

courts as the Congress may from time to time ordain and establish.

b. The judicial power shall extend to

(1) all cases,in law and equity, arising under this Constitution, the laws of the United States, and treaties

made, or which shall be made, under their authority;--

(2) to allcases affecting ambassadors, other public ministers and consuls;--

(3) to allcases of admiralty and maritime jurisdiction;--

(4) to controversies to which the United States shall be a party;--

(5) to controversies between two or more states;--

(6) between a state and citizens of another state;--

(7) between citizens of different states;--

(8) between citizens of the same state claiming lands under grants of different states, and between a state, or

the citizens thereof, and foreign states, citizens or subjects.

(9) In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be

party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the

Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under

such regulations as the Congress shall make.

B. Debate on Congress's Power to Limit Federal Jurisdiction.

1. Justice Story's View in Martin v. Hunter's Lessee.

a. Story reads Art III as mandating the vesting in the federal courts of the entire judicial power described in Art II.

2. Professor Amar's View.

a. First three "heads" of jurisdiction -- federal question, cases involving ambassadors, and cases of admiralty,

include the word "all," and the rest do not. For these first three, federal power should extend to all cases. But

Art III does not require that the full extent of the constitutionally authorized jurisdiction be vested in other

categories of cases (like diversity).

3. Fletcher's View.

a. "All" just means that Congress has the power if it wishes to make those three heads of jdx exclusive in the

federal courts.

4. Meltzer's View

a. Case/Controversy Distinction.Federal judiciary power extends to all cases, but not all controversies. (Fletcher

disputes this -- believes that cases include criminal matters and controversies do not).

5. Currently Accepted View

a. Congress may give federal courts the full extent of jurisdiction under Article III, but it may not and has not.

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(1) Federal Questionjurisdiction is limited; under 1331, the federal question must appear in the complaint,

not in the answer (well-pleaded complaint rule)

(2) Diversityjurisdiction is limited; Congress has always required an amount-in-controversy requirement, and

1332 requires complete diversity.

b. Reasons for Current Rule.

(1) Madisonian Compromise. Issue in Constitutional Convention about whether to create lower federal

courts.

(a) Jeffersonians were suspicious of federal courts; viewed them as an instrument of federal power.(b) Federalists wanted a strong federal government

(c) The Compromise: PUNT. Allow Congress to decide later.

c. Judiciary Act of 1789.This was the original grant from Congress that established a federal court system:

(1) Supreme Court:

(a) Creates positions for Supreme Court justices and authorized Supreme Court to exercise original jdx

described in Art III

(b) Conferred appellate jdx on Supreme Court over decisions of inferior federal courts and over certain

decisions of the state supreme courts.

I. 25: Only conferred Supreme Court jdx over state court decisions when the state court finds

adversely to the federal right asserted

(2) Inferior Federal Courts:

(a) Created two levels of inferior federal courts (district and circuit)

(b) Conferred diversity and admiralty jdx

(c) Did NOT confer general federal question hdx

(3) Significance of the Act:

(a) Congress created a federal court system at the earliest possible opportunity

(b) Congress was not content to have merely a federal Supreme Court overseeing state courts

(c) Does not suggest Story's later reading of Article III; failed to confer the full extent of the jurisdiction

authorized by Art III.

II. Congressional Power to Control Federal Court Power

A. Congressional Power to Regulate Supreme Court Appellate Jurisdiction

1. Jurisdiction Stripping. Art III 2 gives Supreme Court appellate jdx subject to "such exceptions, and under such

regulations as the Congress shall make." Does this mean Congress may strip appellate jurisdiction from the

Supreme Court?

a. Proponents of Jurisdiction Stripping:

(1) Framers intended congressional control as a check on the judiciary's power.

(2) First Congress did not vest Supreme Court with appellate jdx over all heads of jdx enumerated in Art III;

Judiciary Act of 1789 gave Supreme Court appellate jdx over state's highest court ONLY when it ruled

against federal constitutional claim.

b. Critics of Jurisdiction Stripping:

(1) Framers were only concerned with overturning of fact finding by lower courts and juries.

(a) This argument relies on a creative textual reading of Art III; "the Supreme Court shall have appellate

jurisdiction, both as to law[,] and fact, with such exceptions, and under such regulations as the

Congress shall make." Requires a comma after "law" to be clear.

(2) Congress cannot exercise its power to limit jurisdiction, any more than it can exercise any authority, in a

manner that violates the Constitution.

c. The Modern RULE. Congress can limit the appellate jurisdiction of the Supreme Court to achieve a political

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result in a particular case (Ex Parte McCardle), but might not be

Documents

Fed Courts Fall 2009 Fletcher