Mootness and the victorious plaintiff

SCOTUS will hear argument in January in Little v. Hecox, a challenge to a state ban on trans-girls/women's participation in girls/women's sports. The plaintiff (Hecox) won in the Ninth Circuit. In September, the plaintiff submitted to SCOTUS a suggestion of mootness, certifying that she no longer wanted to participate in women's sports in the state.

Several of the mootness panelists wrote about this. FYI, here is an article by Profs. Mazzone and Amar (both at Illinois), styled as an "open letter" urging the Court to follow ordinary mootness principles and dismiss the case.

Final Class

Final Class audio. See everyone for arguments on Thursday, December 18. Abstention and Congressional Control papers due then.

On the subject of opinion writing: See this analysis from Prof. Adam Feldman about the evolution of SCOTUS opinion writing, suggesting that the Court itself did not see separate opinions as a thing for about 150 years (to the extent you believe history and practice matter). 

Thank you all for a great semester. I hope you enjoyed the show. Hope to see many of you for Part II next semester. 

Standing Realignment

Prof. Richard Re expands his argument about the ideological shift in standing, looking at how more often conservative justices (especially Alito and Gorsuch) find standing and liberal justices (especially Jackson) reject it. The drift especially shows in state standing cases, as we move from allowing Massachusetts to sue the Bush II EPA over climate change to allowing Missouri to stop Biden's student-loan relief.

Against certification

See the dissent from Judge Andrew Oldham (a short-lister for SCOTUS under Trump), criticizing the process of certification (or at least its overuse) as an abdication of federal judicial power. See especially Part I.C, which traces the history of Erie and abstention and explains certification as a response to the problems of Erie guesses and federal courts declining to decide state-law issues.

For Monday, November 24 (Final Class)

Tuesday audio. Mootness/Ripeness papers due Monday. Abstention papers due at arguments.

We continue and conclude with Congressional Control. Read the scholarly debates on jurisdiction-stripping; I don't think we'll discuss in class, but they are fair game for your papers. Be ready to discuss:

    • The difference between dictating an outcome and changing the law, as seen in Robertson, Markazi, and Patchak. Is the PLCAA valid under Klein? What about the No Kings Act?

    • How do you square the Klein principle that Congress cannot dictate constitutional meaning with departmentalism?

    • Can Congress dictate statutory meaning, including the interpretive tools and methodologies courts can use?

    • How is Plaut different than Klein and what is Plaut's unique principle.

    • What textual terms in Article III or elsewhere grant or limit congressional power over the courts? Is the scope of the power different for SCOTUS than lower courts and, if so, why?

    • Besides creating courts and determining jurisdiction, what else can Congress attempt to control? 

    • Consider the validity (especially in light of Klein and Plaut), benefits, and drawbacks to the following:

        • two proposals on cameras in the courtroom.

        • Shadow Docket Sunlight Act

        • Proposal: In deciding a case, SCOTUS shall issue one unsigned, unenumerated majority opinion. No concurrences or disssents. If a majority cannot agree on a rationale, the Court shall issue a judgment summarily affirming or reversing, without opinion.

    • Proposal: Limits on opinion lengths: Majority opinion may be no more than 15,000 words, concurrences 5,000 words, dissents 10,000 words.

For Tuesday, November 18

Monday audio. Mootness papers next Monday.

We continue with Abstention. Sections 7421 and 1341 refer to "taxes." As opposed to what and how do we know the difference? We then turn to the judge-made abstention doctrines; our focus will be on Colordado, International Comity, and Burford. I will give a brief overview of Younger and Pullman; we go into greater detail on those in Civil Rights (because both arise in constitutional litigation).

We then turn to Congressional Control. For tomorrow, do the reading in both Chemerinsky and Pfander focusing on Klein, Plaut, and the other cases, along with the PLCAA. Be ready to discuss the following:

    • What principles does Klein stand for? What does it mean for Congress to "decide" a case and when does Congress not decide a case but instead do something permissible?

    • What makes a law retroactive? What constitutional limits on retroactivity are there (see Art. I §§ 9 and 10)?

    • What might it mean for Congress to tell the Court what the Constitution means? 

    • Is the PLCAA constitutionally valid under Klein? 

Schedule of Arguments, Thursday, December 18

Scheduling Order. Standing Order on Procedure.

Please email me ahead of arguments if you have food restrictions or needs (vegetarian, vegan, Kosher, Hallal, food snob, picky, whatever) 

Ripeness v. Standing

We skipped a discussion of ripeness in class, mainly because it has been largely subsumed by standing--the concern for an imminent injury as part of standing in pre-enforcement actions has left ripeness without much to do. Some have suggested that ripeness is prudential while standing is Article III; others have suggested that ripeness applies to private actions while standing applies to public-law EpY actions (compare SBA with Medimmune).

But see this Sixth Circuit case, holding that a property owner's claims challenging the city's refusal to grant him a zoning permit were not ripe because he withdrew the permit request. The court seems to looks to ripeness because the case involves property/zoning. But read the facts and the defects in the plaintiff's case--it is easy to see how this could (and in many cases would) be recast as standing.

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