Overview

Exam

• Organize by issue

  • The first issue here is jurisdiction, then IRAC, the next issue is XYZ, then IRAC

  • IRAC – apply the law to the facts: here is the issue, here is the law that applies (doctrine – citing cases/treaty provisions), here is how it is applied to the facts

  • 60% all your arguments, 30% all counter arguments, 10% counter to counter

• use the cases’ principles/argument in my arguments (don’t need to distinguish cases from one another)

  • “this is like Marbury because…”

  • analogize the case to the facts/reasoning/holding

Statutory Interpretation:

• Constitutional Avoidance

  • Federal statutes should be construed, where possible, so that they do not violate the Cons.

  • Interpret statues to avoid serious cons. questions or serious cons. doubts

JUDICIAL REVIEW AND JUSTICIABILITY

Structure for Exam:

• Two sources of justiciability doctrine:

  • Art. III interpretation

  • Art. III § 2 requires that judiciary can hear only “cases” and “controversies”

• Prudential requirements

  • Derive from prudent judicial administration

  • Distinguish:

    • Congress can override prudential requirements

    • Congress cannot override Art. III requirements unless with Cons. Amendment

• Other Considerations:

  • Article III Standing

    • Injury in fact

    • Causation

    • Redressability

  • Sub-Article III Doctrines

    • Ripeness

    • Mootness

• Federal Courts are Courts of Limited Jurisdiction:

  • Cases & Controversies specified in Article III of Cons.

  • Except for cases falling within the original jurisdiction of the SC, federal courts cannot hear case unless Congress has authorized it – statutory subject matter jurisdiction

• Policy Concerns:

  • Separation of Powers

    • Justiciability doctrine defines judicial role

      • Determines when it is appropriate for federal courts to review a matter, and when necessary to defer to other branches of government

  • Conserving Judicial Resources

    • Federal courts are limited to focusing attention on matters most deserving of review

    • Limits cases to where there is adversary-ness

      • Adversarial parties, with stake in outcome, will best present fully all relevant information

Judicial Review

General:

• Court has power to say what Constitution means (Marbury)

  • Court may refuse to give effect to act of Congress where, in the Court’s view, the act is repugnant to the Cons. (Marbury)

• Congress may not expand SCOTUS Art. III jurisdiction beyond that in Cons. (Marbury)

  • Congress cannot add to categories of cases enumerated in Art. III

• Court must have jurisdiction to hear case!

Court’s Decisions Are Limited to Cases & Controversies, Congress cannot expand power

Marbury v. Madison (1803)

F: Marbury appointed for a position by previous Pres., but new Pres., refused to finalize the appointment by delivering commission. Marbury sought a writ of mandamus from the SC to compel the Pres. to deliver the commission and finalize the appointment.

H: Where the Cons. of the US, as interpreted by the SC, conflicts with the laws enacted by Congress, the SC may declare such laws unconstitutional and invalid. While a mandamus is the proper remedy in this case, and the Judiciary Act of 1789 gives the SC the power to issue writs of mandamus against persons holding office in the US, the statute is uncons. and cannot be given effect. Article III of the Cons. does not grant original jurisdiction to the SC over cases involving executive officers, and Congress cannot expand original jurisdiction of the Court beyond the Cons. – only appellate. And it is emphatically the province and duty of the judiciary to say what the law is. Also, side note: There are rights that have no remedies, such as political questions and discretionary decisions.

Standing

Exam:

• Answering the question:

  • This is a question of standing because ______

  • P does/doesn’t have standing because ______

  • This is consistent w/ justiciability policy / separation of powers concerns crucial to standing analysis because ____

General:

• Requirements

  • #1: Plaintiff must suffer an injury, either actual or threatened

  • #2: The injury must be fairly traceable to the defendant’s conduct (causation)

  • #3: the injury must likely to be redressed by a favorable judicial decision (redressability)

• Prudential Standing Requirements (which can be overcome by Congress)

  • Party generally may not raise the claims of third parties not before the court

  • P may not use as TP who shares grievance in common with all other TPs

• Jurisdictional Consideration

• Other Forms of Standing

  • Standing from citizen provision

  • Standing for legislator

  • Standing to appeal

  • Third party standing

• Separation of Powers Concerns

  • Internal Article III

    • Courts ensuring that they are adjudicating only cases + controversies

    • Other matters – defer to other branches of government

  • Business of courts is to decide matters in adversarial context

    • Adverse parties with stake in outcome will best present fully all relevant info

      • Ensure that party with the best-case wins

  • External to Article III

    • Courts can refuse cases that are better served by other gov’t branches

      • Ex: generalized grievance—people can secure rights through political process

        • Legislature can respond

  • Focus on Article I

    • Prevents Congress from using courts to battle the executive branch

      • Courts don’t want to be lever used by Congress to fight the executive

• When thinking about standing:

  • Identity

    • Closer P is to actual injury, more likely for standing

    • Closer D is to P, more likely for causation

  • Individuation

    • More injury is unique to P, more likely to have standing

  • Incentives

    • Greater incentive to litigate, more adversary-ness, more likely to have standing

  • Procedural Stages

    • How does standing look different at different procedural stages?

      • Motion to dismiss – just looking at complaint

      • SMJ – looking at actual factual evidence like affidavits

• No taxpayer standing

  • Except first amendment religious endorsement/exercise cases

#1 Injury:

• No connection necessary between injury necessary for...

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