II. Justiciability Limitations on Judicial Power

Question 1

Prohibition on advisory opinions (requirements)

Answer 1

i. Actual dispute between adverse litigants - No standing
(Not a request for advice not where parties are not adverse)
ii. Substantial likelihood judicial decision will have some effect - no redressability

(Always do Last)

Question 2

Standing

Answer 2

To have standing, the plaintiff must show (1) that they suffered an ​injury-in-fact
that was (2) ​caused​ by government action and (3) can be ​redressed​ by the courts.

Question 3

Injury In Fact

Answer 3

must be a ​concrete and particularized ​injury that is ​actual or imminent.​

Question 4

Concrete

Answer 4

the injury must be real, rather than an abstract, undifferentiated harm

Question 5

Particularized

Answer 5

the injury impacts the plaintiff “in a personal and individual way;” not a generalized injury felt by society in general

Question 6

Fairly traceable

Answer 6

Must not be too speculative and the harm must be to the P not a third party

Question 7

Redressability

Answer 7

It must be ​likely​, as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” There must be some appreciable difference in the world if P wins.

Question 8

Mootness

Answer 8

(1) it can be said with ​assurance​ that the effects of the alleged injury have ​irrevocably ceased​ and (2) there is ​no reasonable expectation​ that the alleged injury will ​recur

Question 9

Exceptions to mootness

“capable of repletion yet evading review”

Answer 9

(A) the injury is reasonably capable of repetition to the ​same​ claimant again
 (B) the injury is of such a ​short duration​ ​that the judicial process will not be complete before the injury has ceased
○ The ​voluntary cessation​ of allegedly illegal conduct does not make the case moot unless there are ​sufficient assurances​ that the defendant will not resume the challenged practice.
○ Properly certified​ ​class actions​ are not moot because a class representative with a live claim can substitute one without.
○ A claim with a remaining ​“live” element​ of the claim is not moot, even if the plaintiff’s primary alleged injury no longer exists.

Question 10

Capable of repetition yet evading review

Answer 10

1. can the injury happen to the same person again

2. is the injury of such short duration that it naturally circumvents the judicial process

Question 11

Ripeness

Answer 11

It ensures that suit is not filed prematurely before a concrete adversary context exists

Question 12

Pre-Enforcement (exception to ripeness)

Answer 12

1. the legal issue presented is ​fit​ for judicial resolution
   ■ The question is purely legal question, not political
   ■ There a substantial likelihood the statute will be enforced
   ■ Facts are fully developed - no more administrative proceedings,
   regulation is not definitive or informal and tentative
2. the ​hardship​ to parties if review denied
   ■ What if P could only challenge the regulations as a defense?
   ■ Does P have to choose between foregoing lawful behavior (i.e. doing
   business) and risking prosecution with substantial consequences?
   ■ Is there any other viable avenues for redress?

Question 13

Political Question Doctrine

Answer 13

applies when the resolution of certain matters is best left to the political branches rather than the judiciary

• (1) PQ if the Constitution provided a ​textual commitment ​to a coordinate branch *(2) PQ if there are no​ judicially discoverable standards​ for resolving issue
  (3) PQ if it is impossible to decide without an ​initial policy decision​ that is not suited for judiciary
  (4) PQ if the court’s undertaking of an independent resolution means expressing ​lack of the respect​ to coordinate (coequal) branches of govt
  (5) PQ if there is a ​prudential consideration​ barring the Court’s action

Question 14

Taxpayer Standing

Answer 14

o Congress has to be using their power to tax and spend (no other power works)
o Congress uses their spending power to give that tax money to some sort of Religious institution, thus violating the Establishment Clause

Question 15

Third Party Standing

Answer 15

(1) P suffered an i​ njury​ of their own
(2) ​relationship between the ​P and 3P’s rights​
(3) ​obstacles​ to 3P’s ability to assert their own right

Question 16

Associations

Answer 16

have standing if at least one of its ​members have standing​, the asserted ​interests are germane to org’s purpose​, and lawsuit ​doesn’t require participation of individual members​.