1. Constitutional Law I Justiciability – Part II Sept. 14, 2004

2. Fall, 2004ConLaw I - Manheim2 Standing Elements Discrete and Palpable Injury Caused by Defendant's (alleged) Action Remediable by Court Plaintiff's personal rights at stake

3. Fall, 2004ConLaw I - Manheim3 Proof of Injury Degree of proof varies w/ stage of trial Pleading stage: allegations sufficient Pre-trial: sufficient facts to go to jury  FRCP 56(c): “genuine issue of material fact” Trial: proof of injury  preponderance of evidence Future injury speculative? (always to some degree) more likely than not to occur?

4. Fall, 2004ConLaw I - Manheim4 Los Angeles v. Lyons (1983) Claim for Damages Past, retrospective injury  proof that injury had in fact ocurred Claim for Injunctive Relief Ongoing or future injury  Alleged official policy to use lethal chokeholds on suspects  Lyons failed to show that he would be stopped again, or  If stopped, be subject to illegal chokehold

5. Fall, 2004ConLaw I - Manheim5 Los Angeles v. Lyons (1983) 1. Injury in Fact: Does requiring "proof" of future injury abrogate federal courts' power of judicial review?  Subsequent to filing of Lyons' complaint, chokeholds had caused 14 deaths in Los Angeles (12 blacks) Would it have mattered if the Lyons case had been filed as a class action?  Perhaps. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Is “imminence” an element of injunction or standing?

6. Fall, 2004ConLaw I - Manheim6 v.

7. Fall, 2004ConLaw I - Manheim7 Lujan v. Defenders of Wildlife (1992) 1. Injury in Fact: AID-funded projects threaten habitat of endan- gered species (crocodile, elephant & leopard)  Do endangered animals have standing?  Do humans if they study/recreate with endangered species? [vocational or professional injury]

8. Fall, 2004ConLaw I - Manheim8

9. Fall, 2004ConLaw I - Manheim9

10. Fall, 2004ConLaw I - Manheim10 “Teldeniya, a village once renowned for producing cotton, tobacco, coconuts and vegetables, now lies buried under several hundred tons of water of the [Mahaweli] reservoir.”

11. Fall, 2004ConLaw I - Manheim11 Lujan v. Defenders of Wildlife (1992) 1. Injury in Fact: Is the injury discrete & palpable to plaintiff?  Specific or conjectural? Some certainty required – injury must be “imminent” Undifferentiated “some day” intent insufficient How proximate must the injury be?  Scalia: “Person claiming injury from environmental damage must use the [specific] area affected by the challenged action” rejects ecosystem and animal nexii How much proof req’d at summary judgment?  See Blackmun/O’Connor dissent

12. Fall, 2004ConLaw I - Manheim12 Lujan v. Defenders of Wildlife (1992) 2. Causation: Did (or will) Secretary of Interior, by failing to require AID to consult on dam building project, cause plaintiff’s object of study to disappear?  Is causation more attenuated when 3 rd party action involved? AID not even a party to the case See Linda R.S. v. Richard D; Warth v. Seldin; Simon v. EKWRO; Duke Power v. Car. Env. Study Grp.  Does lack of consultation inevitably mean funding of projects? proceduralsubstantive NB: the right asserted (consultation) is a procedural one, not a substantive one  What if congress actually prohibited projects causing env. damage?

13. Fall, 2004ConLaw I - Manheim13 Lujan v. Defenders of Wildlife (1992) 3. Redressability: Pl’s don’t seek to bar project, or funding, but to require promulgation of rules requiring consultation  Would the regulations be binding on “Action Agencies” (project sponsors)?  Even if they were, is that enough to interrupt project? Is this a matter for the jury?

14. Fall, 2004ConLaw I - Manheim14 Lujan v. Defenders of Wildlife (1992) Procedural vs. Substantive Rights No injury to substantive right (observe animals) But clear injury to procedural right – gov’t must follow the law  Citizen-suit provision in Endangered Species Act  Is this an “injury in fact”? 4. Personal Rights: General rule: plaintiffs can only sue to protect their own rights, not those of 3 rd parties.  Example: police conduct warrantless search of my neighbor’s house and find contraband belonging to me  Examine right to see if pl. is within the “zone of interest”

15. Fall, 2004ConLaw I - Manheim15 Lujan v. Defenders of Wildlife (1992) Can Congress create personal rights that satisfy Art. III injury injury requirement? Violating substantive statutory right = injury-in-fact Same for non-instrumental (procedural) rights?  Congress can decide whether plaintiff is within zone of interest of statutory right, but  Cannot decide whether that satisfies “injury in fact” requirement

16. Fall, 2004ConLaw I - Manheim16 Lujan v. Defenders of Wildlife (1992) Non-instrumental (procedural) rights Most procedural rights are designed to protect substantive rights  E.g., hearings on gov’t benefits Some procedural rights are designed to promote “good government” processes  E.g., Env’l Impact Statements (“non-instrumental” rights) These rights are “cheap to confer;” conferred on everyone  Right to information is instrumental. FEC v. Atkins The violation of a non-instrumental right does not create a “cognizable injury”  Is this an outgrowth of SoP?  Which branch loses? Which branch gains?

17. Fall, 2004ConLaw I - Manheim17 Standing and Article III Strict justiciability requirements limit judicial review Less occasion for Courts to intrude on other branches More occasion for Executive to ignore statutory requirements How can Congress fix lack of standing to enforce procedural rights? Create more substantive rights  I.e., impose substantive restrictions on Executive Does this solution promote SoP?

18. Fall, 2004ConLaw I - Manheim18 Standing in Equal Protection cases United States v. Hays (1995) Special representational harms  available only to those in gerrymandered district Affirmative Action cases (Bakke, Adarand) Not necessary that disappointed (white) applicant show she would have been selected  Lesser opportunity is sufficient harm

19. Fall, 2004ConLaw I - Manheim19 4. Personal Rights Jus Tertii Standing Ordinarily, plaintiff must allege the violation of a right that is personal to her  More vigorous proponent of right – better advocate  Assures efficacy of court's ruling "Prudential" element Designed to avoid friction with other branches Court can craft exceptions  For countervailing policy reasons  Not so with Art. III restrictions

20. Fall, 2004ConLaw I - Manheim20 Singleton v. Wolf (1976) Concrete Injury Non-payment by state for certain abortions Causation (Illegal) state statute denies reimbursement Redressability State will presumed comply with ct. order. Personal Right Do docs have const'l right to state funding? Whose privacy rights violated by MO stat?

21. Fall, 2004ConLaw I - Manheim21 Singleton v. Wolf (1976) Exceptions to rule against 3d party standing Close relationship between right holder and Pl.  Parent-child  Where right enjoyed in context of relationship Doctor-patient; attorney-client Bartender-patron (Craig v. Boren) Where right holder not likely to assert right  Chiling effect (e.g., desire for confidentiality)  "Fragile rights" (e.g., 1 st amendment) Litigant must be good "jus tertii champion" "Next Friend" petitions