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Attack Outline

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Federal Courts Attack Outline Fall 2015 Justiciability: A limit on subject matter jurisdiction. Parties must meet the constitutional elements of standing, ripeness, and mootness. If these are not met, courts MUST raise them sua sponte.
? A3 requires a case or controversy with adverse parties with (1) litigable interests who are (2) at risk of being bound by the judgment. o Adversity: Determined by interests, not arguments (so OK if parties desire same result, see Windsor) o Advisory Opinion: fail for lack of adversity and bindingness.
? Finality: Once a court reaches a final decision on a private right in a suit for $, it is a vested right that cannot be displaced by the legislature. Injunctions are nonvested rights, can be modified by Congress or the courts.
? Standing: (1) Does P meet case or controversy requirement, with an injury in fact (A3)? AND (2) Does the applicable substantive law give P a COA against this D in this court for this remedy (Prudential)?
o Prudential/COA: Is this interest within those protected by the law invoked, or is it more of a generalized grievance? (see Allen v. Wright, or Linda RS for illustration, child support != criminal prosecution)
? COA v. Jurisdiciton: COA is the substantive legal principle that confers P a remedial right to come into court. Jurisdiction is court's power to hear a suit based on a COA.
? Sources of COAs: (1) Explicit statute, (2) common law, (3) implied from statute, (4) implied from constitution, (5) Ex Parte Young (injunction based on unconstitutionality)
? (3) Implied Statutory COA: None will be found today. Alexander v. Sandoval
? Previously found implied COA's are recognized by stare decisis.
? See main outline: Borak and Warren/Burger-era tests.
? (4) Bivens Actions (Implied Constitutional COA): A COA for money damages exists against any federal officer who violates 4A, 5A, or 8A rights UNLESS Congress has provided an equally effective substitute remedy.
? Wilkie v. Robbins test for new Bivens actions (always fails): (1) Is there an alternate process/comprehensive statutory remedial scheme such that courts shouldn't provide new remedy? (2) Would it be better to hesitate (yes it would)?
? No Bivens for state officers. Use 42 U.S.C. SS1983 instead.(5)
? (5) Ex Parte Young: Injunctive COA against state/fed officer who is violating the constitution. o A3:
? Three requirements
? Injury in fact: (1) Actual or Imminent (2) real world harm to a (2) concrete interest that (3) belongs to P
? !abstract harm suffered by people generally when government violates law
? !merely speculated or threatened harms
? Legislatures: A concrete power must have been taken away. Abstract dilution of power !enough.
? Causation
? Redressability: Court can alleviate harm with a remedy
? Organizational Standing: Lujan test: (1) Does any individual member have standing under all A3/COA reqs? (2) Interest affected germane to the org? (3) Injury likely to be redressed by favorable ruling?

Taxpayer Standing: Frothingham Principle: Mere status as state/federal taxpayer whose money goes toward a challenged program is not enough. Must show that you specifically suffer as a result of the statute's enforcement. (Exception: for local taxes)
? Flast: Exception to Frothingham, Nelson/modern SCOTUS doesn't like.
? Third Party Standing: Generally NO. Test: (1) Hinderance to 3rd party's ability to protect his own interests, (2) Close relationship between litigant and 3 rd party.
? May be used to facially challenge a law that is overbroad and chills free speech. (E.g. law is valid as applied to P, but unconstitutional because it chills 3 rd parties).
? BUT: If law as applied to P is invalid, simple first party standing, and can only void law as it applies to P's case. Brockett v. Spokane Arcades
? NELSON: Most valid 3rd party standing can be rephrased as 1st party standing; e.g. Craig v. Boren (about her rights to not discriminate in selling beer, not 18 yo's right to buy beer).
? Public v. Private Rights: Is the harm to P as an individual or the public as a whole?
? Furthest Possible Extension of "Private" (Voter Standing): FEC v. Aiken: Breyer says harm done to any voter who is unable to access records meets irreducible constitutional minimum. Nelson/Scalia disagree: harm done to all voters is not concrete to any individual.
? Public Rights: Is the public right sovereign (e.g. prosecute crimes) or proprietary (related to government property)?
? Sovereign Public Rights: Individuals can never litigate these.
? Proprietary: Can be assigned to private party through qui tam statute.
? Interest in qui tam is the govt's; gov't must meet injury req.
? If Qui Tam Doesn't Apply: Congress can't authorize private party litigation of public rights because:
? Unitary Executive: Only executive branch can enforce laws; Congress can't give this power to anyone else.
? Appointments Clause: Only officers can litigate on behalf of the public; officers are appointed by president or a court, not Congress. Mootness: Issues presented in case are no longer live due to factual change or legal change. A lower level of adversity is needed to avoid mooting than for standing to initiate a lawsuit in these 2 cases: (1) Voluntary Cessation/Potential for Repetition; (2) Capable of Repetition/Evading Review o (1) Voluntary Cessation/Potential for Repetition: Case will not be moot if D ceases offensive action unless D can prove action "cannot reasonably be expected to recur in the absence of an injunction." Already v. Nike o (2) Capable of Repetition/Evading Review: Case will not be moot if (1) unreasonable to expect case to make its way thru courts before interests no longer live AND (2) similar issues likely to arise between these parties in the future. FEC v. Wisconsin Right to Life. o Mootness and Class Actions: If named P's case becomes moot, action can continue so long as (1) members of the class still have live litigable interests AND (2) named P will fairly and adequately represent class. Sosna v. Iowa. o Mootness on Appeal: If federal case becomes moot while on appeal, apply Munsingwear Rule: Appellate court vacates and remands with instruction for district court to dismiss as moot. Ripeness: Standing requires "actual or imminent" harm. Ripeness deals with the imminent part. o Distinction between Steffel (ripe) and Los Angeles v. Lyons (not ripe): Steffel faced a specific, imminent, certain (and arguably unconstitutional) arrest for a specific action. Lyons faced no imminent risk of being choked again for any specific action (because there was no set protocol for when cops choked people).?Nonconstitutional Ripeness in Injunction Suits: not a limit on SMJ, but still grounds for dismissal if parties have not consented around them. 2 prongs: (1) Fitness of issues for judicial decision and (2) Hardship to parties of withholding adjudication. Abbot Labs v. Gardner
? (1) Fitness of issues for judicial decision: Enough imminence to satisfy A3, but issue not "framed with sufficient sharpness or detail" to satisfy court injunction is needed.
? (2) Hardship to parties of withholding adjudication: Deciding on injunction now would be unfair to D, and delaying decision would not harm P. Political Questions: If a specific provision of the constitution makes a textually demonstrable commitment, the case is not justiceable. If a case is justiciable, courts may accord non-judicial finality to decisions by political branches if they concern public rights. o Textually Demonstrable Commitment: The case is not justiciable because a coordinate branch must answer question. See Nixon v. US. More likely to be found if the provision is procedural (e.g. impeachment trial, enrolled bill doctrine) than substantive (the meaning of "interstate commerce") o Non-Judicial Finality: A form of issue preclusion. If the case is otherwise justiciable and deals with public rights where a political branch has made a decision that it normally makes instead of the courts, courts plug that decision in. Otherwise, courts can decide it themselves. E.g. national borders, foreign policy, validity of a state/foreign government. o NOTE: Private rights are NEVER a political question. Separability: Presumed separable, that unconstitutional sections or applications can be separated from constitutional ones. Presumption may be defeated (1) through statutory interpretation or (2) if overbreadth doctrine applies to a statute regulating freedom of expression. Can also find a statute inseparable through (3) vagueness. o (1) Statutory Interpretation: Test: Are the constitutional and unconstitutional parts so tightly connected that Congress would not have passed one without the other? Other Q's to ask: Is good dependent/inextricable from bad? Can good be fully operable as law without bad, or would the entire statute have to be reformulated to save goo?
o (2) Overbreadth Doctrine: Cannot pass a broad ban that is partially constitutional, but contains an unconstitutional part that would chill freedom of expression.
? Chilling: Statute applies so broadly it will dissuade people from exercising 1A rights.
? Limiting Construction: If an obvious reading of the statute would make it constitutional, read it that way instead of applying overbreadth. o (3) Vagueness: If vague criminal statute includes unconstitutional applications, whole thing voided. Facial Challenges: Asserts that there is no set of circumstances under which statute is valid. Includes these types of assertions: o No constitutional applications, or constitutional applications inseparable through statutory interpretation or overbreadth. o Substantive conlaw doctrines make it unconstitutional (e.g. Lopez, unconstitutional because invalid use of commerce powers). As-Applied Challenges: Challenge constitutionality of law as it applies to P. If P proves that some applications are unconstitutional, but not that it's unconstitutional as applied to him, he loses. o??

Non-A3 Not-Courts
? Summary: These can never exercise the judicial power of the US. But when can they adjudicate?
o If all rights at stake are core private rights or privileges created by states: NEVER o If the case pits public rights v. core private rights
? If all parties are private citizens: only if they have consented to non-A3 proceedings (see Commodity Futures v. Schor , treated as more of a voluntary, binding arbitration?)


? See Northern Pipeline: A3 court needed for private parties, private rights.
? If one party is the government, ask which type of private rights are at stake
? Property only: Non-A3 court can have initial fact-finding power so long as it is subject to review by an A3 court (for both findings and for procedural due process) See Atlas Roofing v. OHSA. o E.g.: IRS findings may be reviewed in A3 court.
? Life or liberty: NEVER (e.g. criminal cases) o If the case involves only public rights or federal statutory privileges: Generally YES. Decisions in these cases have preclusive effect in later A3 court proceedings.
? See Stern v. Marshall (most recent case law on the public/private right distinction); Thomas v. Union Carbide (federal privileges) o NOTE: Modern SCOTUS has moved away from formal rights/privileges categories; now calls statutory privileges "public rights." NELSON: Still appropriate to think in traditional framework. Other functions of non-A3 courts: o May interpret statutes to promulgate forward-looking regulations that are legally binding on parties (but an A3 court may be needed to adjudicate claims based on these). o As fact-finding adjunct with review by A3 court. Atlas Roofing: OK if this is a circuit court. o A1 and A4 courts: Congress can set up courts for DC (see National Mutual Insurance v. Tidewater Transfer for "two hats"), territories, and the military.
? These do not exercise judicial power of the US, just judicial power over their area.

Regulation of Jurisdiction
? SCOTUS: Original jurisdiction cannot be changed, Marbury. Cannot remove to SCOTUS. Appellate jurisdiction is subject to modification by Congress. We use the stencil theory to determine it. o Original jurisdiction: foreign ambassadors and public ministers (concurrent with lower fed courts); cases involving a state and anyone/anything other than a citizen of that state.
? Cases between two states are exclusive to SCOTUS (SS1251), rest is concurrent. o Appellate Jurisdiction: Discretionary. Done through writ of certiorari. SSSS1254, 1257.
? SS1254: All Cases in Circuit Courts: SCOTUS normally waits until circuit court rules.
? SS1257 Cases from State Courts: If the case (1) meets subject matter restrictions and a (2) final judgment or decree is issued by the highest state court in which a decision could be had. EXCEPT if resolved on adequate and independent state law grounds.
? (1) SMJ: Arises under w/in meaning of A3 AND (a) Validity of fed statute/treaty in ques.; (b) Validity of state statute repugnant to federal law; OR (c) question of titles/rights/privileges under the constitution or federal statute.
? If multiple issues in case, SCOTUS will only hear the ones that fit.
? (2) Final Judgment: State courts can do no more. !order for remand.
? (3) Highest State Court: Can be no more appeals remaining. If review in state supreme court was discretionary, lower court judgment satisfies this.
? See main outline for earlier interpretations of this: Murdock, Martin.
? EXCEPTION: Adequate/Independent State Grounds: If case includes both federal (qualifying for (1)) and nonfederal (not qualifying for (1)) issues, and judgment from state court could be wholly based on nonfederal grounds alone.
? Presumption: Decided on federal grounds. Michigan v. Long.
? This includes procedural forfeiture of the federal argument.
? Stencil theory: Congress' conferral of jurisdiction to SCOTUS (1254, 1257, etc.) seen as outer bounds on its jurisdiction. If Congress hasn't conferred it, presumed no jurisdiction.

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