ConLaw - The Nature of Judicial Review

Question 1

The Nature of Judicial Review

How can a case get to the Supreme Court

Answer 1

Appellate jurisdiction OR
Original jurisdiction

Question 2

The Nature of Judicial Review

Ways that would stop you from bringing case to federal court?

Answer 2

Moot (nothing left to litigate; case is over and in the past);

Not ripe (opposite of mootness: hasn’t happened yet, or hasn’t fully developed (ie, no actual or imminent threat); statute hasn’t been past yet that you want to challenge, for example; the fruit is not ready to eat);

“No case of controversy” means no dispute between the P’s; no argument between parties; cannot bring to federal court on this grounds; on MBE, this can generally also mean “moot” or “not ripe”

No standing: present OR imminent and actual injury at stake; will personally suffer something now or very soon if can’t get into court; usually an economic loss; if not imminent, no standing (watch out for “congress is ‘considering’“…no standing)

independent and adequate state ground: if state decided properly (look for “followed proper state law and no federal issue” “issues of federal issue have been resolved correctly”…not allowed to SC…look for these as opposd to “constitutional issue resolved incorrectly” or “remains unresolved.” look for these buzz words in fact pattern), then can’t bring to federal court

Question 3

The Nature of Judicial Review

What can Congress do regarding original jurisdiction?

Answer 3

Congress may not restrict or enlarge any jurisdiction original jurisdiction cases.

Look for question talking about case going “directly to Supreme Court”

Just think: Original jurisdiction = CONGRESS NO!

Question 4

The Nature of Judicial Review

What can Congress due regarding appellate jurisdiction?

Answer 4

Congress MAY enlarge/restrict scope of appellate jurisdiction.

Just think: Original jurisdiction = CONGRESS NO!
Appellate jurisdiction = YES

For example, in cases falling outside of SC original jurisdiction, Congress may remove an entire subject area from the Supreme Court’s appellate jurisdiction, as long as Congress is acting in a substantively neutral way (rather than, say, trying to dictate the outcome in a particular type of case)

Tip: look for “case appealed to Supreme Court”

Tip: the longer the fact pattern is, the easier the answer is, because examiners know it’s going to take you longer to read, so answer will be simpler usually. Just find the key issue and go to answer talking about that issue.

Question 5

The Nature of Judicial Review

What types of federal courts are there?

Answer 5

Supreme court AND
lower federal courts (district courts, etc.)

Keep them separate in your head:
SUPREME COURT is up here, and separate from…

LOWER COURTS are down here…keep it separate from SC

Question 6

The Nature of Judicial Review

May Congress add/set parameters around lower federal courts?

Answer 6

YES. Congress = MAY and may tell them what to do

Question 7

The Nature of Judicial Review

May Congress add/set parameters around Supreme Court?

Answer 7

No, Congress MAY NOT tell SC what to do.

Question 8

MBE TIP

Answer 8

ConLaw tip: call of question will be general and not give you much info usually “is this constitutional” or something general. So when doing questions, spot issues in the F’s and get good at this. Do NOT look at answer choices for this.

One issue, one answer: find issue, find answer that addresses it. Shut up and pick it

Question 9

Nature of Judicial Review

What is “justiciability” regarding political questions?

Answer 9

Federal courts will not hear cases regarding subjects for other branches of government

A political question not subject to judicial review arises when:
(1) The Constitution has assigned decision making on the matter to a different branch of government; OR
(2) The matter is inherently not one that the judiciary can decide.

Eg, fact pattern relates to executive powers or congress…these = not justiciable

This will often NOT be the answer, but many answer choices will have this as a distractor: “No, because issue not justiciable” but don’t be tempted by this unless you actually see subject matter for another branch.

Question 10

Nature of Judicial Review

What is 11th amendment?

Answer 10

Basically, citizens of one state cannot sue own state OR another state; nor can they sue state officials for violating state law (but can sue for injunctive relief and indiviudal damages from state officials, see below)

Exceptions: the state may be sued if consents to the suit; there may be a statute that says “state has deemed we allow these types of suits against us by our citizens or citizens of other states.”

Exception: individual officials working for state MAY be sued for injuncdrive relief and damages to be paid by official him/herself (not state); look for this in F’s (look for state official enforcing state law that potentially violates federal law)

Exception: Municipalities MAY be sued; just not the suit; read the F’s carefully

Question 11

Nature of Judicial Review

MBE Tip

Answer 11

DP clause and commerce clause answer choices often look good, but make sure you are not tempted by these unless you actually see that this is the issue being asked about

Question 12

Nature of Judicial Review

a) Federal judicial power extends to cases involving:

less than 1%

Answer 12

(1) Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; AND
(2) Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

Question 13

Standing defintion?
How does a plaintiff establish standing?

Answer 13

Standing = concrete stake in outcome of the action

To have standing, a plaintiff bears the burden of establishing three elements:
(1)** Injury in Fact. **The injury must be concrete and particularized (when a harm is concrete, though widely shared, there is standing). However, it does not have to be physical or economic. While the threat of future injury can suffice, it cannot be merely hypothetical or conjectural, it must be actual and imminent.
(2) Causation. The injury must be fairly traceable to the challenged action (i.e., the
the defendant’s conduct caused the injury).
(3) Redressability. It must be likely that a favorable court decision will redress an injury suffered by the plaintiff.

Question 14

Do taxpayers have standing?

Answer 14

In narrow cirumstances, yes.

Generally, a taxpayer does NOT have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way.

However, a taxpayer does have standing to litigate whether, or how much, she owes on her tax bill. In addition, a taxpayer has standing when the taxpayer challenges governmental expenditures as violating the Establishment Clause.

Question 15

Can one assert the constitutional rights of another party to obtain standing?

Answer 15

Generally, no, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a 3rd party if:

(1) The 3rd party would experience difficulty or is unable to assert their own rights;
(2) There is a special relationship between the plaintiff and the 3rd party; OR
(3) The plaintiff’s injury adversely affects the plaintiff’s relationship with the 3rd
party.

Question 16

When does an organization have standing to bring a federal suit?

Answer 16

An organization may bring an action when it has suffered an injury.

In addition, an organization may bring an action on behalf of its members (even if the organization itself has not suffered an injury) IF:

1) its members would have standing to sue in their own right; AND
2) the interests at stake are germane to the organization’s purpose.

Question 17

As to mootness, what are the three exceptions to the “live controversy” requirement?

Answer 17

a) A live controversy must exist at each stage of review (not merely when the complaint is filed). There are three exceptions:

(1) Capable of Repetition, Yet Evading Review. A case will not be dismissed as moot if the controversy is a type that may often recur, but that will not last long enough to work its way through the judicial system (e.g., abortion challenges once the woman is no longer pregnant).
(2) Voluntary Cessation. A case will not be dismissed as moot if the defendant voluntarily ceases the wrongful action once litigation has commenced. The court must be assured that there is no reasonable expectation that the wrong will be repeated.
(3) Class Actions. An entire class action will not be dismissed as moot solely because the named party’s claim in the class is resolved and becomes moot.

Question 18

May federal courts issue advisory opinions based on hypotheticals?
May federal courts issue declaratory judgments?

Answer 18

Federal courts MAY NOT render **advisory opinions **on the basis of an abstract or hypothetical dispute. An actual case or controversy must exist.

However, courts MAY issue declaratory judgments (i.e., judgments that determine the legal effect of proposed conduct without awarding damages or injunctive relief) so long as the action in question poses a real and imminent danger to a party’s interests.

Question 19

What are declaratory judgments ?

Answer 19

judgments that determine the legal effect of proposed conduct without awarding damages or injunctive relief

Question 20

As to independent and adequate state ground, what if a state court decision involves both a federal issue and a state issue?

Answer 20

Where a state court opinion rests on two independent grounds, one of which is based on federal law and the other on state law, the Supreme Court does not have jurisdiction to hear the appeal if the state-law portion of the opinion is by itself sufficient to sustain the judgment. (If the Court were to hear the appeal, it would in effect be rendering an advisory opinion, since its opinion on the federal law issue would not make a difference to the outcome.) In this situation, there is said to be an “independent and adequate state ground.”

Question 21

In order for a case to be heard in federal court, it must meet a series of justiciability requirements. In particular, to be heard the plaintiff must have standing and the case must

Answer 21

(1) not call for an advisory opinion, (2) be ripe for adjudication, (3) not be moot, and (4) not call for the courts to decide a non-justiciable ‘‘political question.’’

Question 22

These are the criteria for determining political questions:

Answer 22

1. A ‘‘textually demonstrable’’ constitutional commitment of the issue to the political branches;
2. Lack of manageable standards for judicial resolution;
3. A need for finality in the action of the political branches; and
4. Difficulty or impossibility of devising effective judicial remedies.
   Foreign relations is a classic source of ‘‘political questions.’’ Congress and the President control foreign affairs exclusively, and the nature of foreign affairs is such that the judiciary cannot intrude.