Justiciability

Question 1

Constitutional Standing Requirements

Answer 1

Lujan/Allen

(1) Injury in fact
(2) Causation
(3) Redressability

Question 2

Injury in Fact

Answer 2

(Lujan): invasion of legally protected interest that is (i) concrete/particularized and (ii) imminent (not conjectural)

Question 3

Types of Injury

Answer 3

1) physical
2) wallet (Hein, Scalia)
3) noneconomic –Laidlaw, environmental; Gill, vote dilution; Heckler, stigmatic injury; Bakke opportunity injury

Question 4

Stigmatic Injury

Answer 4

Fletcher: must be connected to constitutional right

Ex: P must be personally denied equal treatment (Allen, Heckler), stigma violates 1A EC (Flast, 10 C)

Question 5

Opportunity Injury

Answer 5

Sunstein: framing injury as limit on opportunity to compete, receive education (Bakke) avoids causation/redressability problems later

Question 6

Concrete and particularized requirement

Answer 6

Must be concrete, otherwise impermissible generalized grievance (Richardson CIA); if harm concrete, can be widely shared (Akins)

Party seeking review must be among injured (Sierra Club v. Morton)

Question 7

Imminence requirement

Answer 7

For injunction, injury must be likely (not speculative, Clapper)

General standard: substantial risk of injury (Susan B. Anthony List, 1A)

Higher standard: certainly impending (Clapper, national security context)

Question 8

Probabilistic Harm

Answer 8

(i) how realistic threat of harm (insufficient in Summers, Forest)
(ii) perhaps standing if low probability but catastrophic consequences (MA v. EPA)

Question 9

Causation

Answer 9

Injury must be “fairly traceable” to challenged action (link between conduct/injury)

Question 10

Third-Party Intervention

Answer 10

P claims D is doing or should be doing something with respect to behavior of TP, who injures P (Linda R.S., child support; Allen, IRS)

Unlikely to generate causation or redressability

Question 11

Redressability

Answer 11

Relief must “likely” cure injury (link between injury/relief) (Linda R.S.)

No redressability for injunctions for prospective relief where injury occurred in past (Lyons)

Question 12

Taxpayer Standing

Answer 12

General rule: no; injury minute, uncertain effect on Treasury (Frothingham)

Question 13

Flast Two-Part Nexus Test

Answer 13

Taxpayer must establish nexuses between (1) status as taxpayer and type of legislative action at issue; (2) status as taxpayer and precise nature of constitutional infringement alleged

Limited: (1) must be congressional T&S power at issue; (2) Congress must violate restraint on that power (Valley Forge distinguished as executive, Property Clause; Hein as executive; Ariz. Christian donations, not coerced extraction)

Question 14

Individual Legislator Standing

Answer 14

General rule: no

Exception: Coleman – (i) injury = deprivation of personal entitlement to vote (not institutional injury, Raines; Windsor Scalia dissent); (ii) total nullification of vote such that result went other way

Question 15

Institutional Legislature Standing

Answer 15

Ariz. State Legislature: legislature as institution has standing if (i) institutional injury; (ii) nullification of votes

[distinguish Raines: institution suing, not individuals]

Question 16

Voter Standing

Answer 16

Gill: must allege injury to individual right to vote to be concrete and particularized

If injury = dilution, injury is district-specific

(concurrence: may also be 1A associational harm)

Question 17

Third-Party Standing

Answer 17

Generally not allowed.

Can be provided discretionarily. Defendants’ Standing is most likely (subject to sanction); asking for benefit is more discretionary (Kowalski)

Question 18

Prudential Standing Doctrines

Answer 18

1) Third-party standing
2) Zone of Interests
3) Generalized grievance ban? (Lexmark notes confusion)
4) Imprudent because governed by state law (Elk Grove)

Question 19

Congressional Power to Confer Standing

Answer 19

General rule: Congress can authorize suits against gov’t to enforce law (Akins) or empower TPs to enforce the law (Laidlaw) but must be injury

Question 20

Competitor standing

Answer 20

(Sanders Bros.): no interest in freedom from competition, but statutes (e.g. FCA) can grant “aggrieved” private litigants, if financially injured by regulatory act (e.g. license), standing to represent public interest

Question 21

Civil rights enforcement

Answer 21

Congress has defined standing as broadly as Art. III permits for CRA to allow private AG suits (Trafficante); includes testers (Havens)

Question 22

Procedural rights

Answer 22

(Lujan/Spokeo): standing when officials violate procedures only if procedural violation leads to injury to separate concrete interest

Redressability analysis unnecessary

Question 23

Congressionally Defined Injuries

Answer 23

Kennedy (Lujan conc.): Congress defines injury/causation by (i) identifying the injury it seeks to vindicate; (ii) relating the injury to class of persons entitled to bring suit

Question 24

Procedural Rights and Regulatory Beneficiaries

Answer 24

Must show:

1) injury
(2) causation –some possibility that relief will prompt reconsideration (MA v. EPA
(3) redressability

Question 25

Procedural Rights and Regulated Parties

Answer 25

Nearly always have standing to challenge regulation

Question 26

Qui Tam Suits

Answer 26

Relator has Art. III standing (assigned gov’t claim)

Question 27

APA Standing

Answer 27

Grants judicial review to
(i) person who suffers legal wrong because of agency action
or
(ii) person who is aggrieved by agency action within meaning of statute

Question 28

ZOI Test

Answer 28

(Data Processing) – P must demonstrate:

(1) injury in fact (constitutional minimum);
(2) be arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question (question of statutory interpretation of COA – neither prudential nor constitutional, Lexmark)

Question 29

State Law Ps in Federal Court

Answer 29

Must follow federal standing rules (Hollingsworth)

Exception (ASARCO) –if original P didn’t have federal standing, but state judgment causes direct, specific, and concrete injury to petitioner federal court has jurisdiction

Question 30

Two Types of Severability

Answer 30

1) By Part

2) By Application

Question 31

Severability Clauses

Answer 31

(Hellerstadt) –informative, but not determinative; legislature can’t require courts do perform “quintessentially legislative functions” of drawing complex lines

Question 32

As-Applied Challenges

Answer 32

Statute cannot be applied to P

Question 33

Facial Challenges

Answer 33

No set of circumstances under which statute is valid (bizarre hypos excepted)

Conventional wisdom – nearly impossible to succeed outside 1A context (1A special, chilling)

Question 34

1A Overbreadth

Answer 34

(Jews for Jesus): individual whose speech/conduct may be prohibited can bring facial challenge because statute also threatens nonparties (who want to engage in protected expression but don’t)

Test:

(1) substantially overbroad –statute significantly compromises 1A protections for nonparties;
(2) no obvious limiting construction

Question 35

Realist Key to Facial/As-Applied Challenges

Answer 35

Constitutional tests –Ps claim invokes constitutional test (SS, MRR), which may analyze statute as-applied or on its face (e.g. abortion, 2A, EP, federalism cases = facial)

Practice tip: don’t label challenge as “facial” increases judicial anxiety (Salerno)

Question 36

General Principles of Severability

Answer 36

1) If statute only has few unconstitutional applications –> sever, invalidated as-applied
2) If obvious way to sever statute to save it from invalidity –> sever, invalidated as-applied
3) If not obvious that severing is needed to save statute, but this application is okay and there’s an obvious way to sever should court eventually determine it’s necessary –> uphold without deciding severability (Yazoo, U.S. v. GA)
4) Severing must be consistent with legislative intent –severable unless Congress wouldn’t have enacted provisions independent of unconstitutional ones (Jackson, Morales-Santana)
5) Courts will not sever statutes in a way they view as creatively rewriting the statute (Lopez, won’t add jurisdictional hook; but see Skilling honest services fraud rewrite)
6) Presumption of severability (Yazoo)

Question 37

Mootness

Answer 37

(Defunis) = P must continue to have cognizable injury from filing to judgment

Question 38

Conceptualization of Mootness

Answer 38

Prudential (Rehnquist –rooted in policy) or constitutional (Scalia – Art. III)

Question 39

Exceptions to Mootness

Answer 39

1) Voluntary cessation (Laidlaw) – if possibility that D will return to old ways, no mootness; heavy burden on D (Heckler) to show “absolutely clear” it won’t happen again (Viteck)
2) Capable of repetition, yet evading review (WI Right to Life, voting cycle) –burden on D to rebut; must be capable of repetition between the same parties

Question 40

Mootness of Criminal Cases

Answer 40

death moots (Singer)

completion of sentence doesn’t (Sibron) because (i) short sentences could escape review, (ii) collateral consequences of conviction

Question 41

Mootness of Class Actions

Answer 41

Class actions (Geraghty): named Ps can continue to represent class after their case is mooted if class is certified before case is mooted (or if mooted after motion to certify, Genesis)

Question 42

Disposition of Moot Cases

Answer 42

Vacatur in civil cases (Munsingwear, change of law)

Discretionary vacatur in settlement (presumptive value of law clarification)

Criminal: dismissal of appeal but not conviction (Dove)

State cases –SCOTUS dismisses those that moot (ASARCO), but Defunis vacated/remanded

Question 43

Ripeness

Answer 43

(Abbot Labs): two factors – (i) fitness of issues for adjudication (current factual development of record is deficient); (ii) hardship to the parties if adjudication is withheld

Question 44

Conceptualization of Ripeness

Answer 44

Constitutional core (need enough facts to judge)
\+ 
Discretionary layers (since remedy is usually injunction, requires equitable evaluation of how much hardship is enough)

Question 45

Types of Ripeness Challenges

Answer 45

1) Challenges to statute/reg as unconstitutional (UPW, Abbot Labs)

Regulated parties:if required to change behavior immediately –> ripe (Abbot Labs)

Takings Clause: no taking (and thus suits for just compensation not ripe) until state challenges are exhausted (Williamson) [Exception: exhaustion futile?]

2) Challenges to discretionary executive action –> generally not ripe (O’Shea) (past ≠ future)

Rationale: unclear who will be hurt; injunction reiterates law –> requested prohibitory injunction enforced like structural injunction (interferes with day-to-day state proceedings)