For Tuesday

Tuesday audio. No class Monday. Standing Papers due Tuesday. Judicial Lecture with Judge Abudu at 12:30 on Tuesday.

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 (especially equal protection); 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 (e.g., Hippocratic Medicine or the jawboning case) 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 v. Nebraska, 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.

We continue with Mootness. How does the pick-off technique in Campbell interact with mootness? What is the argument that Campbell has nothing to do with mootness? When does voluntary cessation moot a case--consider mootness when 1) a statute is repealed, 2) a regulation is repealed, 3) an internal departmental policy is changed, 4) government promises to comply with precedent (in another case) declaring a law invalid and unenforceable, 5) government removes plaintiff from the No-Fly List and states he will not be added in the future based on currently available information.

Can a party avoid mootness of his prospective claim 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?

Read Chemerinsky's discussion (p.157) of Pap's. Why might the Court have been reluctant to find the case moot? 

Finally, please confer with your opposing counsel to decide who will represent which side and with your co-justice to decide who will serve as Chief. I will gather this before class on Monday, Nov. 18.

For Tuesday

Monday audio.

We will skip State Standing; so just review Associational and Organizational Standing. What is the difference between them and between third-party standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

Then move to Ripeness/Mootness and our next panel. Why have ripeness and standing collapsed onto one another? Mootness is described as "standing set in a time frame;" what does that mean? What is the standard for mootness? What sorts of things can happen that cause a case to become moot? How can parties overcome mootness? Why was there no mootness in Campbell? What is the argument that Campbell has nothing to do with mootness? Have a look at FRCP 23(a) and (b)(2).

SCOTUS Appointments by President

Charts in this post by Prof. Vladeck. One chart shows an average of appointments per Term, one goes in chronological order.

Another Removability Puzzle (Updated)

The Philadelphia DA brought a state-law civil nuisance action against Elon Musk and his PAC, alleging they were engaging in unlawful activities relating to voting and the election (it's the $ 1 million giveaway to people who vote, which the state argues is an illegal lottery). Musk and the PAC removed on two theories:

1) The case arises under under Grable/Gunn because the PAC's activities are First Amendment protected and the case is about the presidential election, which creates a federal issue and federal interest within the state claim. This seems to take a broad perspective on when a federal issue is embedded, as opposed to being a defense or presenting federal concerns. The logic of the removal argument might federalize an assault that happens at the polling place.

2) There is diversity jurisdiction because the DA is not acting as the Commonwealth but in his individual capacity, making him a citizen of Pennsylvania (and Musk and the PAC are not). This argument relies on a distinction between a DA bringing a criminal case and a DA bringing a civil case, although that distinction appears to be about control over enforcement, not about whether a DA enforcing state law ceases to act as the state.

Update: That did not take long. The state filed an emergency motion for remand, asking the court to move quickly because of the looming election. Here is the order remanding and here is a short opinion explaining that 1) the DA acts for the Commonwealth and thus the state (not a citizen) is the party and 2) there is no federal issue that must be resolved or proven for the Commonwealth to prove its claim and the federal "context" (that it surrounds or effects an election) is insufficient for Grable. Musk only sought removal under § 1441, so this order is not reviewable.

This course in a nutshell

I said on the first day of class that much of what you see in the news relates to this course. That is especially true in presidential election years.

This Fourth Circuit decision is its own Fed Courts class. The RNC sued in state court, challenging the state' failure to clear voter roles as violating federal law and the state constitution; the state officials and the DNC as intervening defendant removed. The Fourth Circuit held that the case was properly removed. The whole thing is 40 pages long, but worth a read. It features:

    • Embedded federal issues under Grable and Gunn.

    •  § 1443(2) civil rights removal and when a law provides for racial equality.

    • Organizational and associational standing, the difference between them, and the limits Hippocratic Medicine might have imposed on both. (The concurring opinion discussing standing is only 8 pages--I recommend reading it as preparation for our discussion on Monday).

For Monday

Tuesday audio. 11th Amendment papers due Monday.

• On what basis might 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 for Monday; we will get to State Standing on Tuesday.

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

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • 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 US-citizen father to pass citizenship to his child compared with a US-citizen mother. (In other words, the Man would have been a US citizen from birth had his mother been a US citizen, but was not a US citizen from birth because his father was a US citizen).

• What is First Amendment overbreadth? How can you explain it as a standing doctrine and how can you explain it as a substantive constitutional doctrine?

• What is the difference between organizational standing and associational standing? Read the portions of Hippocratic Medicine dealing with the organization's standing, as well as Justice Thomas' concurring opinion.

We will get to State Standing on Tuesday, then move to the next panel on Mootness and Ripeness.

For Tuesday

Monday audio--Part I, Part II. 11th Amendment papers due next Monday.

We continue with Considerations. It came up during break but bears emphasis: Why was there standing in

    • What are the principles, purposes, or policies underlying standing and how do they explain the doctrine? If not separation of powers, what else is going on? What is the argument that each does not, in fact, explain the doctrine? What is the best explanation? What is "adverseness" and how does it fit into the standing analysis?

    • 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 Judge Newsom's concurrence in Sierra and the discussion of Prof. Fletcher.

    • On what basis might 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.

    • If standing comes from Article III, what happens in state court? Suppose the TransUnion filed suit in state court in a state with different standing requirements and the state courts adjudicated the claims? Could the losing party appeal to SCOTUS?

Prep Taxpayer Standing and Third-Party Standing (leave State Standing for next week)

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

    • Consider: Congress wants to support people having crucifixes (obviously an Establishment Clause violation). It can choose 3 approaches; which are subject to challenge on a Flast theory:

            • Govt purchases crucifixes and sends one to every citizen

            • Individuals purchase and Govt reimburses at 100 %

            • Individuals purchase and Govt gives a tax credit of 100 % of price

    • Why limit third-party standing?  How does this doctrine turn on the distinction between rights and injuries?

    • 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.

 

Ongoing standing controversy

A district court issue a TRO in response to letters from the Florida Department of Health threatening to prosecute tv stations if they ran an ad supporting Amendment 4.

We will not discuss in class, but this may offer a nice subject for a reaction paper. In particular, looking at what the state did, who the plaintiffs are, and the different theories of standing, did the court get the standing analysis right?