Judicial Power

Question 1

Advisory opinion?

Answer 1

(1) lack actual dispute between adverse parties OR (2) lack legally binding effect

Question 2

How can P establish ripeness before law is enforced?

Answer 2

Need to show both (a) issues are fit for judicial decision - i.e. don’t need additional factual development (legal > factual q’s) and (b) P would suffer substantial hardship absent review (+ would risk hardship to provoke enforcement)

Question 3

Mootness? Exceptions?

Answer 3

(1) Case is moot if P no longer suffers injury (has been made whole, actions have stopped, etc)
(2) exceptions are:
(a) capable of repetition but evading review (abortion)
(b) D voluntarily stops but can resume activity
(c) class actions, representatives moot but at least one member is not

Question 4

Standing? Exceptions to no taxpayer standing?

Answer 4

(a) concrete, particularized, past or imminent injury (b) causation (c) redressibility

No citizen/taxpayer standing: (a) personal issue, (b) 10A - needs personal injury tho (c) Congressional spending

Question 5

Third Party standing? (1A?)

Answer 5

No, unless (a) special relationship (parent-child, doctor-patient) OR (b) person unable to represent themselves (confidentiality issues)

ALSO, third party standing allowed for 1A overbreadth claims even if P’s own language is not protected, but this doesn’t apply to commercial speech

Question 6

Organizational standing?

Answer 6

Req’s (a) injury in fact to members (b) injury within scope of org purpose (c) individual member participation not req’d (damages assessment vs. declaratory judgment)

Question 7

Can Congress override standing reqs? (unlikely to test)

Answer 7

No, Art III rules, but can create new rights. Can create zone of interest for certain P’s.

Question 8

Sovereign Immunity? Exceptions?

Answer 8

Sovereign Immunity = cannot sue state in state or federal court (and in state/federal agencies)

Exceptions = (a) consent, e.g. waiver (b) local govt’s (c) P = US or state itself, (d) proceedings in bankruptcy courts (e) actions against state officers in official capacity to enjoin from future violations of federal law/const. (even if req’s $), (f) actions against state officers in personal capacity for $ (g) congressional abrogation under 14A

Question 9

Supreme Court JDX

Answer 9

Original: cases affecting ambassadors, public ministers, consuls, those in which state is a party (but lower has concurrent jdx except for those between states)

Appellate: All federal jdx under Art III, needs to be final judgement from below

Writ of Cert - discretionary, Appeal - mandatory

AISG - cannot hear case if there is independent state ground on which decision rests (i.e., case would come out the same if remanded)