1. The doctrines of justiciability (1)
Standing and ripeness

2. Cases and controversies
Federal courts only deal with cases and controversies
no advisory opinions
Requires:
an actual dispute between adverse litigants
a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.
We have seen in previous classes that federal courts have limited subject-matter jurisdiction.
However, there is another important limit on the federal judicial power.
The Supreme Court has held that federal courts jurisdiction is limited to cases and controversies, based on its reading of Article 3, Section 2, Clause 1 of the US Constitution.
This means that federal courts will not give advisory opinions.
In order for a dispute to qualify a “case or controversy”, it must be
an actual dispute between adverse litigants > which means parties with true adverse legal interests (parties cannot collude to put a case before the courts)
Furthermore, there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect.(=current)
These requirements must be met regardless of whether the plaintiff seeks monetary, injunctive, or declaratory relief.

3. Justiciability doctrines
Standing
Ripeness
Mootness
The political question doctrine
In order to satisfy the “case or controversy” requirement, the US Supreme Court has developed a number of justiciability doctrines.
These determine which matters federal courts can hear and decide, and which must be dismissed.
Specifically, justiciability includes standing, ripeness, mootness, and the political question doctrine.
Each of these justiciability doctrines was created and articulated by the U.S. Supreme Court. Neither the text of the Constitution, nor the Framers in drafting the document, expressly mentioned any of these limitations on the judicial power.
Today we will be looking at standing and ripeness, next week we will consider mootness and The political question doctrine.

4. 1. Standing

5. Standing
“[i]n essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin (1975)
Prevents lawsuits from those who have only an “ideological stake” in the outcome
Standing is the determination of whether the litigant has the capacity to bring a matter to the court for adjudication.
USSSC has said “[i]n essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin (1975)
Prevents lawsuits from those who have only an “ideologicl stake “in the outcome
A plaintiff who lacks standing has no direct interest in the litigation, and so no right to being the case.

6. Elements of standing
An injury in fact: a concrete, particularized injury to the plaintiff (actual or imminent)
Violations of:
common law rights
constitutional rights
rights created by statute
Plus “other injuries sufficient for standing”
The first element of standing is the requirement that there is an An injury in fact:
Which means: a concrete, particularized injury to the plaintiff
This can be an actual injury – one which has already been suffered – or an imminent injury.
However, if it is imminent the threat of injury must be both real and immediate, not conjectural or hypothetical – a possible futire injury is not sufficient
Violations of:
common law rights
constitutional rights
rights created by statute > all create standing,
Then there is another group “other injuries sufficient for standing” – essentially those areas where the USSC had stated that an injury confers standing >
These include
Economic harm
Harm to one’s environment
Harm to one’s aesthetic appreciation of the environment

7. Standing?
An environmental organization with members nationwide and a special interest in protecting the environment
seeks an injunction to stop an environmentally-damaging ski resort being built in an area of outstanding natural beauty.
Sierra Club v Morton (1977)
An environmental organization with members nationwide and a special interest in protecting the environment
seeks an injunction to stop an environmentally-damaging ski resort being built in an area of outstanding natural beauty.
No – no particularized injury to the plaintiff or any of its members. At least not one which is made out in the claim we have here.
What would they have to do in order to have standing?
Show that they had members who used the area in question for leisure activities.
There is a right of recover for non-economic loss, if someone’s aesthetic appreciation or recreational activities would be affected.
If they had members who had an economic interest in the area, which would be damaged, for example who organised nature hikes and camping, that would also confer standing.
In fact that is what Sierra Club did, they refiled the suit based on testimony from members who used the area for recreational purposes, and they were successful.
Sierra Clun has been applied in many other similar cases, where standing is denied or granted based on whether the litigants can show that they have personally or will personally suffer a harm.
One Justice is quoted as saying, “Why didn’t the Sierra Club have one goddamn member walk though the park and then there would have been standing to sue?”

8. “Citizen suits” Provided for in federal environmental legislation
Allow organisations to file suit against companies which breach environmental laws
Standing requirements must still be met
Can lead to injunctions or civil penalties (paid to the government)
A development that has come in part out of this decision is the emergence of Citizen suits:
These are also called citizen action lawsuit or private attorney general lawsuit
Provided for in federal environmental legislation
Normally it is federal agencies such as the EPA which enforce federal regulations
However, if the relevant legislation provides for citizen suits, individuals or environmental organisations can file suit against companies which breach environmental laws
Standing requirements must still be met > this is fairly simple as a result of Sierra Club
Can lead to injunctions or civil penalties (paid to the government) > aim is to deter future wrongdoing

9. Standing
Generally no standing for litigants seeking to challenge the government’s use of federal taxes for improper purposes.
But may be possible if Congress has overreached its powers, and is violating a particular constitutional provision Flast v. Cohen (1986)
Generally no standing for litigants seeking to challenge the government’s use of federal taxes for improper purposes.
But may be possible if Congress has overreached its TAXING AND SPENDING powers,(Article 1, Section 8) and is violating a particular constitutional provision Flast v. Cohen (1986)
In Flast, gov spending on religious schools was violating the First Amendment’s establishment clause.
(not just that Congress is exceeding the scope of its powers under the Constitution).

10. Other elements of standing
2) Causation: the injury is attributable to / traceable to the action complained about
3) Redressability: the relief being sought will redress the injury
In addition to an injury in fact, two other elements are required.
2) Causation: the injury is attributable to / traceable to the action complained about
3) Redressability: the relief being sought will redress the injury
If you have a standing case, you should examine all 3 elements

11. 2. Ripeness
The other justiciability doctrine I want to look at today is ripeness

12. Ripeness An unripe case – there is not yet a justiciable controversy
e.g. there is a request for anticipatory relief but court feels that the injury is unlikley to occur (=too speculative)
To be an actual controversy the case must be ripe.
What is the problem with a case which is not ripe?
If a case is not ripe, it has been brought too soon – there is not yet a justiciable controversy.
In which types of case is ripeness an issue?
Ripeness can be an issue when there is a request for anticipatory relief (the court acts to prevent an injury to the plaintiff from occurring) (injury – infringement of his legal rights)
but court feels that the injury is unlikley to occur (=too speculative)
e.g. someone fears they will be prosecuted under a law or government regulation, and so tries to have that law invalidated by arguing,for example, that it violates the Constitution
That is possible, but the court will look very carefully at how likely it is that the plaintiff would really be prosecuted under the law.
For example if a law has been passed but never enforced, the court may decide that there is no real risk of prosecution for the plaintiff.
In which case they will state that the the injury is unlikley to occur (=too speculative)
It’s too soon.
Can an unripe case become ripe – yes, if the state start enforcing the law, in relation to people who are in the same situation as the plaintiff, then he could try again.

13. Ripeness The court considers:
the fitness of the issue for judicial decision
the hardship to the parties of witholding court consideration
So we can say that the court considers the fitness (readiness) of the issue for judicial decision. > is it ready
But they also consider something else - « hardship to the parties of witholding court consideration »,so in the case of a stautue; is fear of prosecution or being taken to court causing severe hardship to the plaintiff?
That is always considered when the court is considering challenges to federal agency action or regulations, but also often in cases involving challenges to state or federal laws.
Four years before the Court struck down a Connecticut law banning the sale, dissemination, and use of contraceptive devices in the landmark case of Griswold v Connecticut, the Court considered a declaratory judgment  action seeking to enjoin future enforcement of the law on the grounds that it violated the Constitution (Poe v Ullman (1961)).  On a 5 to 4 vote, the Court dismissed the action for lack of a case or controversy.  The Court noted that no prosecution under the challenged law was pending, that only one prosecution had ever been brought under the law, and that contraceptives were openly sold in Connecticut drugstores.  Writing for the Court, Justice Frankfurter concluded that the plaintiffs failed to show the real threat of prosecution necessary to have their case heard.  Frankfurter declared, "This Court cannot be umpire to debates concerning harmless, empty shadows."  Four dissenters took strong issue with the Court's dismissal of the case.  Dissenting Justice John Harlan concluded the suit was neither collusive nor too abstract for resolution, and that the threat of prosecution under the law was real.
In Epperson v Arkansas (1968), the Court reached the merits of a declaratory judgment action brought by an Arkansas biology teacher challenging a state law authorizing prosecution of persons teaching the theory of evolution in public schools.  Even though there had been no recent prosecutions under the law and the likelihood of a prosecution against Epperson seemed remote, the Court said the case--unlike Poe v Ullman--presented no "double contingency."  Cases are appropriately dismissed, according to the Epperson Court, only when the Court is unsure the state will prosecute AND, if it chooses to prosecute, whether it will choose to prosecute someone in the position of the plaintiff.  Here, the Court said, if Arkansas brought a prosecution under its anti-evolution law, it would be brought against someone like Epperson.

14. Justiciability doctrines
Ensure the separation of powers
Conserve judicial resources and political capital
Aid judicial decision-making by ensuring that the court is dealing with concrete controversies
Promote fairness
….but this must be balanced against the need for judicial review
Finally want to consider why these doctrines exist
The main justifications are these:
Ensure the separation of powers > ensuring that there is a real controversy, limit the possibility of the judicial branch interfering unnecssaril with the actions of the other bra,ches
Conserve judicial resources and political capital > federal courts have limited resources and limited political capital – they rely on the other branches and the states respecting their judgments. Limiting federal jurisdiction to cases and controversies helps conservbe these.
Aid judicial decision-making by ensuring that the court is dealing with concrete controversies > in the common-law system, judges role is not to decide abstract questions, a legal issue can only be properly decided if it is framed in the context of an actual case
Promote fairness: only adjudicate on the rights of those who are before the courts
Yet these justifications for limits on the judicial role must be balanced against the need for judicial review.
while justiciability doctrines serve the important goals described above, it is at least equally important that the doctrines not prevent the federal courts from performing their essential function in upholding the Constitution of the United States and preventing and redressing violations of federal laws.
Ongoing debate about whether they exclude too many cases.