Monday audio. Standing Reax Papers due next Monday.
We will spend a few minutes at the start of class tomorrow on the dissent in Biden.
We move to Ripeness and Mootness. For Ripeness, read § 2201, SBA (including FN 5), Medimmune (including FN 8), and the Pfander reading; skip Chemerinsky. What is the connection between ripeness and standing? What was the dispute over ripeness in Medimmune and how did the Court resolve it? Imagine a municipality prohibits yard signs. Two individuals want to sue--A never wants to post a sign, while B wants to post a sign supporting Kamala Harris for President in 2028. Can either suit go forward and why?
Then move to Mootness; prep the entire section. Mootness is described as "standing set in a time frame;" what does that mean? What is the standard for mootness? What sorts of events can moot a case? How can parties overcome mootness? What does capable-of-repetition-yet-evading review entail and what does it require? What sorts of cases will be covered by this? Is it an exception to mootness? Does CRER cover the detainee released from custody and deported wishing to challenge the shackling policy? What about a teen who is 18 and graduated challenging school policy of allowing students to be questioned without their parents present? When does voluntary cessation moot a case--consider mootness when 1) a statute is repealed, 2) a regulation is repealed, 3) an internal departmental policy is changed, and 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable. Can a party avoid mootness by seeking nominal damages?
What is the problem with, as Pfander suggests, courts considering the merits of a case (or class of cases) in deciding how strictly to apply justiciability?
Finally, one last word on standing. Many have commented on what we can call the "ideological drift" of standing. Narrow standing came from conservative courts attempting to reign-in progressive litigation on issues such as consumer protection, environmental protection, and constitutional rights; the left decried the rules while the right celebrated them. That dynamic arguably has flipped--the right decries narrow standing as it engages in more constitutional litigation and the left seeks to defeat claims on standing grounds. Similarly, conservative Justices have become more likely to find standing (at least in certain cases), with liberal Justices railing about the Court abandoning the judicial role. We see that in the reactions to Biden, 303 Creative, and other cases. This article by Richard Re (University of Virginia) argues that progressive reaction to 303 reflects the left's potential abandonment of pre-enforcement constitutional litigation.
