Introduction To American Law Outline

Issues

Preliminary Issues

1. Standing (Art. III)

• “Standing”: plaintiff in federal court must be able to demonstrate that they have some “personal stake” in the outcome, that could be remedied by the court

  • 1. “Distinct and palpable” injury

    • Injury in fact:

    • “Injury to citizen’s interest in the govt acting legally” is not enough

    • Same with “taxpayer” standing If there is no injury

    • And congress cannot bestow such “citizen standing” (Lujan v. Defenders of Wildlife, 1992)

    • If the main injured does not appeal, then another interested does not have standing

      • There is no “actual controversy” between the parties, and no “concrete and particularized” injury to the interested ((Hollingsworth v. Perry, 2013)

      • They may have standing to defend, but not to appeal (Hollingsworth v. Perry, 2013)

        • The litigant can only assert his/her own rights

        • Hollingsworth was anti-gay marriage organization that had proposed constitutional amendment that was declared unconstitutional, and the state did not want to pursue to defend the constitutionality further

        • (Blum) Problem: Gives the executive branch a veto, the executive is thwarting the will of the people!

        • And it also does not follow the rationale of standing (that the ones appealing would defend the case better!)

          • Decisions on standing sometimes are decided against their foundations!

          • (Sotomayor) There should be standing in this case

          • (Kennedy) you should be able to defer to state law, in California a third person can have standing. Otherwise, you are not taking into account the dynamics of the state in which the situation took place.

      • It’s different in the case where the government is involved, the harm is loss of tax revenue and the third party is the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives (instead of defendant, US) (US v. Windsor)

        • The issue was that a tax exemption for estate tax did not apply to a same sex couple, married in Canada

        • Context mattered: Especially if the the issue was federal from the beginning, not state ( Hollinsworth); and if Hollingsworth had the same rights as married couples (not like Windsor that had to pay tax)

        • Scalia dissent: it’s inconsistent

        • Thomas: the executive is the one that should have appealed, and they didn’t!

        • Blum: creates a lot of uncertainty for future cases!

  • 2. Current

    • Not ripe or moot

    • Ripeness: Brought too early to the courts – injury not suffered yet

      • Thus, you can bring the suit even if you suspect that the government is spying on your conversations under its powers of the Foreign Intelligence Surveillance Act, until you can show an injury (“Clapper v. Amnesty”)

        • It was only an “abstract subjective fear”, not a “reasonable fear of injury”

        • Costly measures to ensure confidentiality are not enough injury, it was self inflicted harm based on fears of hypothetical future harm

        • It was prior to Snowden

        • otherwise, the courts would be flooded with well-intentioned, meddlers (public-interest organizations)

        • (You can’t challenge validity of ordinance to distribute leaflets until you’ve distributed them and were punished for that)

        • Breyer dissent: Future harm is not speculative, and should be sufficient for standing: there is a high probability of interception of communications.

    • Mootness: Brought to the courts too late – injury no longer suffered

      • Ej. Applicant to a state university: by the time the case reached the SC, he was in his final term at law school. SC: “moot”! (DeFunis v. Odegaard, 1974)

      • Court may review if the issue is “capable of repetition, yet evading review”

        • Ej. Abortion (Roe v. Wade): needs to be ruled in 2, 3, 4 months

          • The courts need to address it even if the case is rendered moot, because it is a matter that will arise again (and it is impossible for anyone to stay pregnant until the case reaches the USC!)

  • 3. Caused by the defendant

    • Rationale:

      • (Article III) “Cases and controversies”

      • I. In a democracy, unelected judges may only decide when they are called to do so (not legislate)

      • II. The best way to assure fully informed decisions is to rely on the parties themselves (adversarial system)

        • Critics: today some people motivated by ideaological concerns (NGOs?) are well suited to stand!

• Class actions

2. Jurisdiction

• 1. Jurisdiction must be federal (not state)

  • Marbury v. Madison

  • Supreme Court can review state court’s decisions that involve federal law (Martin v. Hunter’s Lessee)

    • Supreme Court has appellate jurisdiction (Art. III), otherwise it would be left out on having the last word on some cases regarding federal law

• There must be “Cases and Controversies” (Art. III)

  • Related to standing

• The issue must not be a “Political Question” (Guarantee Clause – Art. IV)

  • Based in the Republicn form of government

  • “Political Question”: A question incapable of judicial resolution – not a legal question

  • Test – 2 situations:

    • 1. Lack of Judicially Manageable Standards:

      • Eg. Did states properly ratified an amendment to the CN prohibiting child labor – Kansas had ratified it too late? Congress established no limit on ratification. What was a reasaonable time? (Coleman v. Miller, 1939)

        • H: No judicial standards!

          • SC would be making political statement, that corresponds to the other branches

      • Does not includes a state (Tennessee) ignoring a law on legislative apportionment (voting district design) after 30 years in which the demographics had changed, and thus violating Equal Protection (Baker v. Carr, 1962)

        • The Equal Protection question was separate!

        • (Brennan test)

- "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"

-"A lack of judicially discoverable and manageable standards for resolving it;"

-"The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"

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