Tuesday audio. Double session Monday; no class Tuesday. Judicial Lecture at 12:30 next Wednesday, November 12 in the Large Courtroom; class participation points for attendance.
A few quick clarifications:
• There is no split of authority about standing really being merits. The position is held by an island of three people--Judge Fletcher, Judge Newsom, and me. So every court treats them as separate--you will not find courts going the other way.
• We skipped this for time but it came up after class: Standing is grounded in Article III, which applies to federal courts. State courts can have their own standing rules, which can be broader than what works in Article III. That is why Texas could allow "any person" to sue over a post-heartbeat abortion--Texas courts can develop standing rules that allow anyone with a statutory cause of action to sue. California's consumer fraud laws were similarly broad pre-2004: Any person could sue over a false statement that a company makes; thus any random person could sue Nike when it (allegedly falsely) denied using child labor.
But this raises a potentially interesting question: What happens if a federal issue arises in a case that could not be brought in federal court with limited standing but can be brought in a state court with broader standing? For example, what if the TransUnion plaintiffs could establish standing in state court? How would we ever get a federal forum for those federal issues? The answer: SCOTUS can review the state court decision--the adverse state court judgment constitutes an injury to the state-court loser, which creates standing for SCOTUS review (even if there would not have been standing in a district court in the first instance).
I hope to get through the rest of Standing in the first session, then move to Mootness/Ripeness either late in session I or in Session II.
