Standing Papers

Here, here, here, here, here, here, here, here, here, here, and here.

For Next Class

Tuesday audio. Mootness/Ripeness papers due next Tuesday. I will gather argument roles at the beginning of class Monday.

We will continue with the current panel for § 2283 and the tax injunction acts (§§ 1341 and 7421); be sure to review § 2201 and § 1983. What does "expressly" mean in § 2283? Why does § 1983 constitute an exception and why does § 16 of the Clayton Act (in Vendo) not?

What is the purpose of the tax injunction acts? How does a person challenge a constitutionally invalid state or federal tax? What constitutes a tax subject to the statutes? What if a party seeks a declaratory judgment that a tax is invalid, rather than an injunction?

We will move to the next panel and the judge-made abstention doctrines (Colorado, Burford, and international comity). What are the elements of each of these? What are the similarities between Colorado River and international comity abstention? What factors and principles do courts balance as to each?

What should happen in the following case:

    A, a US citizen, sues X, a Japanese citizen, in federal court on an antitrust claim; the court enters judgment for A and awards $ 10 million dollars.

    X sues A in a Japanese court under Japan's "clawback" statute, which allows a Japanese citizen to recover under Japanese law the amount owed on a federal antitrust judgment.

    A asks the federal court to enjoin X from proceeding with the Japanese action. Can it issue the injunction?

Finally, Pullman and Younger abstentions are the most frequently litigated judge-made abstention doctrines. But they arise exclusively in constitutional cases, so for space reasons I move them into Civil Rights next semester. I want to spend a few minutes reviewing each, so you have a basic idea of what is going on. So read the (short) Pfander sections on Pullman (pp. 363-69) and Younger (pp. 371-81). Consider the following cases:

    1) Andrew Warren, the Hillsborough County State Attorney, was suspended from office by Gov. DeSantis, a first step under state law to removing him from office under the governor's authority to remove certain officials for "misfeasance, neglect of duty, or incompetence." Warren brings a § 1983/EpY action against DeSantis, alleging the suspension violates the First Amendment. He also believes that nothing he did constitutes "misfeasance, neglect of duty, or incompetence."

    2) Harris is prosecuted in state court under an anti-Communist law for engaging in the constitutionally protected speech of advocating the overthrow of capitalism. Harris sues Younger (the district attorney) in federal court, alleging a First Amendment violation and seeking to enjoin Younger from enforcing the law.

    3) After his victory in the Supreme Court, Jack Phillips of Masterpiece Cakeshop declines a request to bake a cake celebrating a customer's male-to-female transition. The customer complains to the state Civil Rights Commission, which commences a proceeding under the state public accommodations law. Phillips sues the the head of the Commission in federal court, alleging the new proceeding violates the First Amendment (as determined by SCOTUS in his prior case) and seeking to enjoin it.

The Question is Moot

As we finish this piece of the course, I must share that no law student or lawyer above a certain age can learn or discuss mootness without thinking of this October 1984 SNL skit featuring Rev. Jesse Jackson. Jackson had run for the 1984 Democratic presidential nomination. One of his talking points was that a particular issue or question was "moot," because the policies and actions of the Reagan Administration had stripped the issue of practical effect.

Jackson parodied that as the host of a game show called "The Question is Moot," recognized as one of the great skits of the '80s. The second contestant is a very young Julia Louis-Dreyfus. You can watch at this link.

For Next Class

Monday audio. Please confer with opposing counsel and co-judge before class next Monday. Once I have roles, I also will distribute information about the arguments, including dress code.

We will begin with some final words on Mootness. Why might the state-court origins of Pap's A.M. have affected the Court's choice on mootness? 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? Why might a Court do that? Consider two examples: SCOTUS held in Poe v. Ullman (1961) that a pre-enforcement challenge to Connecticut's was not ripe; in Griswold v. Connecticut (1965), the Court declared the law invalid. SCOTUS held in Hollingsworth v. Perry (2012) that intervening defendants lacked standing to appeal a trial court judgment declaring California's prohibition on same-sex marriage invalid; it held in Obergefell (2015) that prohibitions on SSM violate the 14th Amendment.

We turn to Abstention--General Principles and Statutory Abstention. What is abstention? What is "mandatory jurisdiction?" What are the separation of powers arguments for and against these doctrines? What is Congress' role as to abstention? Does statutory abstention raise the same separation of powers concerns? What is comity as a policy concern for federal courts?

On Statutory Abstention:

    • What is the purpose of § 2283--who benefits from limiting federal courts and how? What is the purpose of the tax injunction acts (§ 1341 and § 7421) and why not allow claims to enjoin taxes?

    • What are the exceptions to § 2283 and why? What is the difference between "necessary in aid of jurisdiction" and "to protect or effectuate" judgments?

    • Why is § 1983 an expressly authorized exception? Why is the Clayton Act not in Vendo?

    • What is the relitigation exception and how does it fit into § 2283? How does preclusion fit into the statute? How can preclusion be raised as an issue?

    • Consider the procedural posture of Atlantic Coastline. How did § 2283 apply and what should the Union do?

        • Railroad sues Union in federal court in 1967, seeking to enjoin pickets at the Moncrief Terminal. The federal court denies the injunction.

        • Railroad sues Union in state court in 1967, seeking to enjoin pickets at Moncrief Terminal on state-law grounds. The state court grants the injunction.

        • SCOTUS in Jacksonville Terminal (1969) held that unions enjoy a statutory right to picket on employer property and that the union could picket at Jacksonville Terminal.

        • Following Jacksonville, Union moves the state court to dissolve the injunction, under authority of Jacksonville. The state court refuses.

        • Union sues Railroad in federal court, asking the federal court to enjoin the Railroad from seeking to enforce the state-court injunction.

Non-Art. III Standing and SCOTUS Review

Something we did not cover in our Standing discussion, but consider this an addendum to class.

Art. III addresses the "judicial power of the United States" vested in SCOTUS and inferior courts Congress creates--the "courts of the United States," meaning federal courts. It is silent as to the courts of the states. That means, as with state constitutions generally, states can create their own standing rules, including allowing people to have standing in state court who would not have standing for the identical claim in federal court.

To use one example in the news--Texas municipalities can adopt "abortion trafficking" ordinances allowing "any person," however random or disconnected to the events, to sue someone who uses a particular road to drive a person for an out-of-state abortion. For another example, this decision from a Colorado trial court refusing to dismiss a lawsuit brought by some voters seeking to keep Donald Trump off the state ballot under § 3 of the 14th Amendment. No one challenged standing, which was granted by state law. This contrasts with the federal cases (cited in the opinion) from 2008 by voters trying to sue to keep Barack Obama off state ballots because he was not a natural-born citizen; all rejected standing.

So states get to set their own rules. Many (including Florida) follow Article III. Others (Texas and California are notable) enable much broader private enforcement, especially for environmental and consumer-protection laws.

Here is one more question to consider, looping standing back to SCOTUS jurisdiction: The Colorado lawsuit will address federal issues--the scope and meaning of § 3; any lawsuit under a Texas ordinance will trigger federal defenses of the right to travel and probably First Amendment. In an ordinary state-law action, SCOTUS can review the final decision of the state supreme court following review through the state-court system. But SCOTUS is an Article III court, meaning it requires a case-or-controversy that meets Article III requirements, particularly injury-in-fact.

Nevertheless, the Court has held that it can exercise appellate jurisdiction and review the federal issues in this situation (state-court judgment on federal issues in a case that would have lacked standing in a federal district court). How do you suppose it reached that conclusion--where is the Article-III satisfying injury? You are welcome to research it and write it as an email to me (to be posted here) or as a reaction paper for your panel.

For Next Class

Tuesday audio. Standing papers due Monday. I expect to finish Ripeness/Mootness Monday and at least begin Abstention, so the next panel should be ready to go.

On Mootness:

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 and why? What happens to the lower-court judgment when a case becomes moot on review?

Consider City of Erie v. Pap's A.M.: The owner of a nude-dancing establishment sued in state court to enjoin enforcement of an ordinance; it prevails in the state supreme court, which rules that the ordinance violates the First Amendment. After SCOTUS grants cert, the owner closes the business (although he maintains his business license). Moot? How is this different from the typical mootness case? How might where the case originates affect the Court's decision about mootness? (Note: Chemerinsky refers to Pap's as the defendant--it was the plaintiff in state court).

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? Why might a Court do that? Consider two examples: SCOTUS held in Poe v. Ullman (1961) that a pre-enforcement challenge to Connecticut's was not ripe; in Griswold v. Connecticut (1965), the Court declared the law invalid. SCOTUS held in Hollingsworth v. Perry (2012) that intervening defendants lacked standing to appeal a trial court judgment declaring California's prohibition on same-sex marriage invalid; it held in Obergefell (2015) that prohibitions on SSM violate the 14th Amendment.

I hope to begin Abstention, so prep General Principles. What is abstention? What are the separation of powers arguments for and against these doctrines? What is Congress' role as to abstention?

For Next Class

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.

11th Amendment papers

Here, here, here, here, here, here, here, and here.

For Monday

Standingstock audio--Part I, Part II.

We continue with Taxpayer Standing, Third-Party Standing, and State Standing. I hope to finish Standing on Monday and  Ripeness/Mootness on Tuesday; that panel should be ready to go for Tuesday.

    • What are the limits on Flast standing under Valley Forge, Hein, and Winn? Imagine the government wants to subsidize the purchase of crucifixes by private individuals (an obvious EC violation)--how could it work that program and could a taxpayer challenge it?

    • Why limit third-party standing?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • Barrow v. Jackson: White homeowner sued for damages for violating restrictive covenant by selling to African American purchaser

        • Kowalski: Attorney sues to challenge constitutional validity of law denying public funds for an attorney on appeal where the defendant pleads guilty.

        • Craig v. Boren (you should remember this one from Con Law): Bar owner challenges constitutional validity of law allowing women to purchase higher-alcohol beverages at 18 but men at 21.

        • Morales-Santana: Federal law makes it easier for a US-citizen mother living overseas to transmit citizenship to child than for a US-citizen father living overseas. Man facing deportation challenges the law, arguing he is US citizen from brth and thus not deportable. He was born overseas to US citizen father and non-US citizen mother and thus was not citizen at birth; he would have been citizen at birth if his mother was the US citizen parent. His father is deceased.

    • State law that imposes criminal penalties and loss of medical licenses on medical who prescribe contraception or prescribe gender-affirming hormone therapy; providers sue to enjoin enforcement of the laws. What is the argument that this is first-party rather than third-party standing?

    • What is overbreadth and how can we understand it as 1st-party standing and 3d-party standing?

    • What is associational standing? What is organizational standing? How are they different?

For Tuesday

Monday audio. 11th Amendment papers due Tuesday. For our double session tomorrow, we will go until 12, take a 15-minute break, then go until around 1:25.

We continue with Considerations. Is there standing in 303 Creative? What about for the restaurant owner who wants to begin a Sunday family drag brunch and has made plans (designed a menu, finding talent, designed decorations, planned advertising), where state law prohibits drag for mixed audiences and the law has been enforced against other venues?

    • What is "adverseness" and how does it fit into the standing analysis?

    • What is the standing argument in the lawsuit above against the "Only You Can Stop Hate Speech" Act (discussed in class last week)?

    • 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?

    • 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 an "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.

     • How does standing protect the executive power, given Article II? What is the argument that separation of powers does not explain standing--and arguably undermines it? If not S/P, what other values does standing serve?

    • How do merits and standing interact? (See pp. 40-49 of the Newsom concurring opinion in this 11th Circuit case).

    • How should the court resolve the following case: State law prohibits companies from labeling their products as "meat" if the product is not derived from animals. Plaintiff is a vegan food producer who does not use the word "meat" on its labeling or marketing. Plaintiffs brings an EpY action and seeks a preliminary injunction (requiring likelihood of success on the merits) against enforcement of the law on free speech grounds.

Prep Taxpayer Standing and Third-Party Standing.

    • Why special taxpayer standing rules for the Establishment Clause? Can taxpayers challenge the student-loan forgiveness program?

    • Why limit third-party standing?

    • What are the requirements for third-party standing? Why is this not 1st-party standing?

    • Consider the standing and third-party standing analysis in the following cases:

        • Drs., clinics, or distributors challenging limits on the use and sale of contraception

        • White homeowner challenging a racially restrictive covenant

        • Attorney challenging state law not providing free attorneys for appeals of guilty pleas.

        • Bar owner challenging a state law imposing a higher drinking age for men than women

        • Criminal defendant challenging the prosecution's use of a racially discriminatory peremptory challenge

        • Man (whose deceased father was US citizen) facing removal from the country challenging federal law imposing higher requirements for a father to pass citizenship compared with mother.

Non-Art. III Papers

Here, here, here, here, here, here, here, here, and here.

For Monday

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.

For Tuesday

Monday audio. EPY/Non-Article III papers due tomorrow.

No new reading and no new panel. I hope to finish Eleventh Amendment tomorrow and move to Standing next Monday. We will do our make-up next Tuesday, October 17, in a double session.

    • Why does "plan waiver" explain the results in PennEast and Torres?

    • Why is abrogation permissible under § 5? What are the limits on § 5 abrogation? Considering modern civil rights statutes, which allow abrogation and which do not and how can you explain the different results?

    • Consider whether the following ADA claims can be brought in federal court:

        • A, an employee of a private law firm, is fired because of a disability.

        • B, an employee of the City of Coral Gables Legal Counsel, is fired because of a disability.

        • C, an employee of the Office of the Florida Attorney General, is fired because of a disability.

    • What is the connection between Ex parte Young and the Eleventh Amendment? If the lawsuit was against the Office of Attorney General Young, why didn't sovereign immunity apply?

    • In what way(s) is EPY a "legal fiction" and in what ways can we says it actually is consistent with principles of sovereign immunity?

    • How does EPY lend new meaning to "the King can do no wrong?"

    • What two things must be true for a claim to fall within the "Ex parte Young exception" to the Eleventh Amendment? A state employee is fired in violation of the FMLA. He brings an EPY action against the state official who fired him. Are the following remedies available:

        • Damages for pain and suffering

        • Reinstatement to his job

        • Backpay (wages he would have earned from his wrongful firing until the point of judgment)

        • Front pay in lieu of reinstatement (wages he would have earned for some period had he been reinstated)

Consider the following:

    New York enacts the "Only You Can Stop Hate Speech Act." The Act prohibits the expression or display of racially derogatory or discriminatory messages or ideas. The law prohibits enforcement of the law by any state or local government or official. It creates a cause of action in state court allowing "any person" to sue a speaker for expressing racially derogatory or discriminatory messages or ideas to recover $ 10,000 per message, attorney's fees, and injunctive relief.

    (Note: This law violates the First Amendment in most, if not all, applications). A potential speaker brings an EpY action to enjoin enforcement of the law; named defendants are the State Attorney General, the Clerk of the state trial court (for an injunction stopping him from accepting & filing lawsuits), and the chief judge of the state trial court (for a DJ that the law is invalid and he cannot adjudicate the lawsuits).

 

For Monday

Tuesday audio. Non-Article III Reax Papers due at the beginning of class Tuesday. To be clear: I can review papers with you, so long as I don't see the Blind ID #.

Torres v. Texas Dept. of Public Safety is from 2022, showing how the Court has shifted in its approach. Read at least Justice Breyer's majority opinion. Then read the remainder of the assigned pages in both treatises.

What are the competing theories of the Eleventh Amendment's meaning? WWhat are the purposes of sovereign immunity--what does it hope to achieve? What does immunity protect states from and what does it not protect them from? What is abrogation and when can Congress abrogate or not? How does abrogation relate to and depart from the concept of the "plan of the Convention" before and after PennEast and Torres. What are the "structural safeguards of federalism" and how does that explain abrogation? Looking at what abrogation has been allowed for modern civil rights statutes under § 5, its there a logical way to explain the different outcomes? Can Congress subject states to suit under the Spending Clause and why, if it is a § 8 power?

For Tuesday

Monday audio.

We will finish Non-Article III Jurisdiction. On the "§ 1259 is invalid" argument, what about SCOTUS review of state courts, D.C., and Puerto Rico? What is the argument that § 1259 is valid? What makes CAAF different (around the term "adjudication") from James Madison refusing to deliver Marbury's commission? Then move to Magistrates, with a detailed focus on § 636, and Bankruptcy Courts. For bankruptcy, look at 28 U.S.C. § 157 and 28 U.S.C. § 158, which establish the process for bankruptcy cases (somewhat similar to magistrates). As to both, what is the connection between the non-Article III adjudicator and the Article III district judge?

We move to Eleventh Amendment and the next panel. For tomorrow, we will touch on the background to sovereign immunity and the Eleventh Amendment. Read the Amendment, along with Pfander pp. 249-56 and Chemerinsky pp. 445-62. What are the competing theories of the Eleventh Amendment's meaning? Where does sovereign immunity come from and what is its purpose? What does it mean to say "The king can do no wrong?" What happened in Chisholm and how did the Eleventh Amendment respond?

Finally, a last word on our discussion from today about DJs and injunctions. We said a DJ is sufficient in many patent cases, particularly involving parties, such as Genentech and Medimmune, who enjoy a business relationship; they need the determination of rights, not necessarily the judicial restriction on conduct. And the business relationship establishes some level of trust Not always, of course, as this Eleventh Circuit case shows, where one of the parties is a bad actor. The restriction on conduct and the contempt hammer become necessary. This also shows some of the issues arising from J.J.'s question about who an injunction binds.