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.
