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statute is repealed, 2) a regulation is repealed, 3) an internal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?
