Judicial Power

Question 1

Case or controversy

Answer 1

Federal courts can hear a matter only if there is a case or controversy

Whether there is a case or controversy (whether it is justiciable) depends on
- what the case is requesting (advisory opinion)
- when it is brought (ripe or moot)
- who is bringing it (standing)

Question 2

Advisory opinions

Answer 2

Federal courts cannot issue advisory opinions, which are decisions that lack
- an actual dispute between adverse parties, or
- any legally binding effect on the parties

Pre-enforcement review

Question 3

Pre-enforcement review

Answer 3

Pre-enforcement review of a law by declaratory judgement action without rendering an advisory opinion, assuming case or controversy requirements are met

Plaintiff can establish ripeness before a law or policy is enforced by showing two things
- issues are fit for a judicial decision, and
- the plaintiff would suffer substantial hardship in the absence of review

Question 4

Ripeness

Answer 4

Courts wait until laws and policies have been formalized and can be felt in concrete ways before deciding the case

Pre-enforcement reviews - pl can establish ripeness

Question 5

Fitness for judicial decision - ripeness in pre-enforcement

Answer 5

More case involves legal, as opposed to factual issues, more likely the case will be fit for review

Generally, issue is not fit for judicial decision if it relies on uncertain or contingent future events that might not occur

Question 6

Hardship to parties - ripeness in pre-enforcement review

Answer 6

Needs to show that they would have to risk substantial hardship to provoke enforcement of law

More hardship pl can show, more likely the court will find the case to be ripe

Question 7

Mootness

Answer 7

A live controversy must exist at all stages of review

Thus, pl needs to be suffering from an ongoing injury or the case will be dismissed as moot

3 exceptions

Question 8

Injury capable of repetition - moot

Answer 8

Even if the injury has passed, a claim will not be considered to be moot if the controversies capable of repetition but that evade review because of their inherently short duration

Question 9

Defendants voluntary stop and moot

Answer 9

Even if the injury has passed, claim will not be moot if the defendant voluntarily stops the offending practice but is free to resume it

Question 10

Class actions and mootness

Answer 10

Even if the injury has passed, a claim is not considered to be moot in class actions in which the class representatives controversy has become moot but the claim of at least one other class member is still viable

Question 11

Standing

Answer 11

A person must have standing at all stages of litigation, including on appeal

Three components:
- Injury in fact: particularized and concrete
- Causation: causal connection between the injury and the conduct complained of
- Redressability: a decision in the litigant’s favor must be capable of eliminating their harm

Question 12

Injury in fact - standing

Answer 12

To have standing a person needs to show an injury in fact, which requires both
- a particularized injury: injury affects the plaintiff in a personal and individual way, and
- a concrete injury: one that actually exists

Must have already occurred or imminently will occur

Question 13

Citizenship standing

Answer 13

People have no standing merely as citizens or taxpayers to claim that government action violates feral law or the constitution

Injury is too generalized

Question 14

Tax and standing

Answer 14

No standing merely as taxpayer to claim that government action violates federal law or constitution

But a taxpayer has standing to challenge their tax bill

Question 15

Tenth amendment standing exception

Answer 15

A person may have standing to allege that federal action violates the tenth amendment by interfering with powers reserved to the states as long as the person has a redressable injury

Question 16

Congressional spending and standing

Answer 16

People have standing to challenge congressional spending measures on first amendment establishment clause grounds
- ex: congressionally approved federal expenditures to aid parochial schools

Congress’s spending power must be involved

Question 17

Who must suffer injury

Answer 17

Generally, no third-party standing

Plaintiff must be the one who suffered the injury, but exceptions

Question 18

Standing to assert others’ rights

Answer 18

A claimant with standing in their own right may assert the rights of a third party if
- it is difficult for the third party to assert their own rights, or
- a close relationship exists between the claimant and the third party

Question 19

Standing of organizations

Answer 19

An organization has standing to sue on behalf of its members if
- there is an injury in fact to the members,
- the members’ injury is related to the organization’s purpose (so can effectively represent their interests), and
- individual member participation in the lawsuit is not required

Question 20

Standing for free speech overbreadth claims

Answer 20

A person has standing to bring a free speech claim alleging that the government restricted substantially more speech than necessary (restriction was over broad), even if that person’s own speech would not be protected under the First Amendment

Restriction is over broad and its on behalf of others whose speech would be protected under it

Does not apply to restrictions on commercial speech because financial incentives to bring own claim

Question 21

Sovereign immunity

Answer 21

Doctrine of sovereign immunity reflected in the Eleventh Amendment bars a private party’s suit against a state in federal and state courts

Similarly, immunity bars claims against a state in federal and state agencies

Several exceptions

Question 22

Sovereign immunity - express waiver

Answer 22

States can be sued if they consent to it by waiver

Most states have expressly waived sovereign immunity, at leas to a limited extent, in their tort claims acts

Question 23

Sovereign immunity - implicit consent / structural waiver

Answer 23

When states joined the federal union, they implicitly agreed that their sovereign immunity would yield to certain federal powers

Structural waiver applies when:
- a federal power is complete in itself, and
- the states implicitly consented to the federal government as well as to suits by private parties if Congress delegates its power

Extends to suits brought by the federal government as well as to suits by private parties if congress delegates its power

Question 24

Sovereign immunity - local governments

Answer 24

Local government are not protected by sovereign immunity

Neither are entities like police departments

Question 25

Sovereign immunity - suits by other states or the federal government

Answer 25

States can be sued by other states and the federal government can sue states

Question 26

Sovereign immunity - bankruptcy

Answer 26

States lack sovereign immunity in bankruptcy proceedings, so a person can sue a state in relation to a bankruptcy proceeding

Question 27

Sovereign immunity - actions against state officers

Answer 27

A person can sue a state official
- for damages personally, or
- to enjoin the official from future conduct that violates the Constitution or federal law

However, a suit against a state official is prohibited by sovereign immunity to the extent that it seeks retroactive damages

Question 28

Sovereign immunity - congress removes

Answer 28

Congress can remove a state’s immunity as to actions created under the Fourteenth Amendment power to prevent discrimination, but it must be unmistakably clear that Congress intended to remove the immunity

Question 29

Original jurisdiction

Answer 29

The SC has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party

But congress has given concurrent jurisdiction to lower federal courts in all cases except those between states

Question 30

Appellate jurisdiction

Answer 30

The SC has appellate jurisdiction in all cases to which federal judicial power extends under Article 3, subject to congressional exceptions and regulation

Can review constitutionality of acts of other branches and power to review state acts under the supremacy clause

Generally only after a final judgment by the lower court
- writ of certiorari
- appeal

Question 31

Writ of Certiorari

Answer 31

Most cases

SC has complete discretion to hear cases that come to it by certiorari

Cases from the highest state court capable of proving a decision where
- the constitutionality of a federal statute, federal treaty, or state statute is in issue, or
- a state statute allegedly violates federal law, and

All cases from federal courts of appeals

Question 32

SC appeal cases

Answer 32

Rare

SC must hear cases that come to it by appeal

Confined to decisions by three-judge federal district court panels that grant or deny injunctions

Question 33

Adequate and independent state grounds

Answer 33

SC will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds, even if federal issues are involved

State law grounds are adequate if they are fully dispositive of the case

Independent if the decision is not based on federal case interpretations of identical provisions

If the state court has not clearly indicated that its decision rests on state law, the SC may hear the case