Tuesday audio. Double session (minus the 10 minutes from today) next Tuesday. Eleventh Amendment Papers due at the beginning of class Tuesday.
Move to Standing; prep Constitutional and Statutory Considerations; in addition to the cases listed, focus on TransUnion (discussed in Pfander)and SpokeO (discussed in both). Also read pp. 40-49 of the concurring opinion in this 11th Circuit case (you are welcome to read the whole thing).
What are the elements and types of standing? What are the supposed purposes of standing and why do they justify (or not) the doctrine? How does standing connect with the merits--and what is the argument that what we call standing is really about the merits? Consider:
• What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech" Act (discussed in class Monday).
• Congress in 2017 amended the Affordable Care Act to zero-out the penalty for not purchasing insurance. The obligation remains in the statute, but no consequence can be imposed. Does an individual who does not want to purchase insurance have standing?
• What is the difference between "certainly impending" and "substantial risk?" When does Driehaus say a risk of enforcement is sufficiently imminent? Can you reconcile Clapper and Driehaus in terms of imminence?
• Consider traceability and redressability in Warth (building affordable housing), Allen (challenging tax-exempt status for private academies), and Clapper.
• What are the principles, purposes, or policies underlying standing? How do they explain the doctrine? What is the argument that each does not, in fact, explain the doctrine?• What is the "ideological plaintiff?" Why is that not sufficient for standing and why should it be?
• What is the connection between standing and merits? See pp. 40-47 in Judge Newsom's concurring opinion in this 11th Circuit case.
• Is there standing in the following case: A, a website and graphic designer, wants to begin designing web sites for weddings. She has laid the groundwork for those plans, including mock-ups of the sites she would design, although she has never designed (or been asked to design) a site for a couple. State law prohibits discrimination in places of public accommodation because of sexual orientation. A has ideological and religious objections to same-sex marriage and would not want to tell the story on her web-site of a same-sex couple or their marriage; requiring her to do so, she believes, would violate her First Amendment rights.
