1. Fall 2000Standing - 21 Recap - Law of Standing Article III Requirements –Distinct & Palpable Injury (actual or imminent) –P’s injury must be fairly traceable to D’s allegedly unlawful conduct –Remediable by Court Prudential rule of self-restraint –Plaintiff must assert its own right

2. Fall 2000Standing - 22 Examples - 1 Distinct & Palpable Injury –Satisfied: all plaintiffs in Warth –Not met: Lujan [claim of injury to aesthetic & research interests was not sufficiently specific] –Not met: Lyons v. Los Angeles plaintiff subjected to illegal police choke hold had standing to seek damages, but could not show actual or imminent injury from future choke holds. Held: no standing to seek injunction

3. Fall 2000Standing - 23 Examples - 2 Causation: –Satisfied: Regents v. Bakke [white applicant was injured by UC’s affirmative action plan even though he couldn’t show he would have been admitted; his injury was his inability to compete equally, not his rejection] –Not met: Ps in Warth

4. Fall 2000Standing - 24 Examples - 3 Redressability –Satisfied: Duke Power v. Carolina Study Grp [nuclear power plants likely to shut down if Price-Anderson Act (limiting nuclear liability) was declared unconstitutional] –Not met: Lujan [withdrawal of federal funds would not necessarily cause cancellation of project] –Not met: Allen v. Wright [black parents lacked standing to challenge IRS policy granting tax-exempt status to discriminatory private schools; loss of tax- exemption would not necessarily reverse white flight from public schools]

5. Fall 2000Standing - 25 Examples - 4 Plaintiff must assert its own right - no third party standing –Satisfied: Eisenstadt v. Baird [physician could assert his patient’s right to use contraceptives] –Not met: Warth [MetroAct members claimed injury from discrimination against 3rd persons]

6. Fall 2000Standing - 26 Exceptions to rule against Jus Tertii Associational Standing –in own capacity when its interests affected –on behalf of its members if: members have standing to sue in their own right interests asserted are germane to org’s purpose neither the claim nor relief require participation by individual members Chilling effect –right holder unlikely to assert her own rights E.g., 1st amendment cases - overbreadth doctrine

7. Fall 2000Standing - 27 Jus Tertii Exceptions - 2 Close relationship between P and 3d party –physicians –parents But see Gilmore v. Utah [Gary Gilmore’s mother could not challenge his execution] –bartenders Craig v. Boren [bar owner could assert the equal proection rights of her male patrons]

8. Fall 2000Standing - 28 Zone of Interest P is asserting her own legal rights when she is within the zone of interests of the statute or consti- tutional right claimed –Usually applied in APA cases Satisfied: ADAPSO v. Camp [data processing firms could challenge Comptroller’s ruling allowing banks to perform data processing services] Not met: Air Courier v. Am. Postal Workers’ Union [postal workers not protected by statute giving USPO monopoly over rapid letter delivery] Congress can define the Zone of Interest –By enlarging the scope of statutory protection

9. Fall 2000Standing - 29 Lujan v. Defenders of Wildlife ESA creates broad zone of interest –but insufficient for standing Must also meet other 3 factors; including concrete and particularized “injury in fact.” –Interest in environmental protection? No, too general (not distinct) –Observing particular animal species adversely affected by agency’s (illegal) action? No, too conjectural and hypothetical (not imminent) Contrast Bennett v. Spear (1997) –Within Zone created by ESA + actual injury

10. Fall 2000Standing - 210 Procedural Injuries “Citizen-suits” –standing conferred on any person to enforce procedural elements of ESA. –Why? Is this a struggle between congress and the executive branch? Permits “congress to transfer from the President to the courts the Chief Executive’s duty to `faithfully execute the laws’” –Standing rejected where only right claimed is “non-instrumental” Procedural rights create standing only when associated with substantive rights.

11. Fall 2000Standing - 211 Showing Required at Different Stages of Litigation Pleading –Bare allegations meeting 4-part test suffice Summary Judgment –Evidentiary facts tending to support claims Trial –Proof of factual assertions

12. Fall 2000Standing - 212 Raines v. Byrd Legislator Standing Challenge to Line Item Veto Act –Article I, Section 7 “If [the President] approves [a bill] he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated...

13. Fall 2000Standing - 213 Injury in Fact Loss of legislative power? –Denial or nullification of vote [Coleman v. Miller] –Dilution of voting not on the Line Item Veto Act itself on particular appropriation bills –diluted only to extent a majority of each house agrees with their vote, AND –the President vetos the line item, AND –congress fails to override Perhaps any future injury is too speculative

14. Fall 2000Standing - 214 Broader SoP Principles What are the “more general SoP principles referred to by J. Souter? –Court should be hesitant to side with one branch ws another in a tug-of-war Compare Breyer dissent –While it may be true that intra-branch disputes where not resolved by courts at common law –Constitution draws no distrinction between personal and official harms/standing

15. Fall 2000Standing - 215 Mootness Plaintiff must have live controversy –when complaint filed, AND –at all states of litigation –burden on Def’t to establish mootness Case can become moot –Parties die, events occur or lapse –Controversy is settled Exceptions to mootness –Voluntary cessation of harm –Capable of repetition yet evading review

16. Fall 2000Standing - 216 Ripeness Cases brought prematurely are unripe –Premature if harm lies in future without fair degree of certainty that it will occur –Premature if facts are yet to gel, such that precise contours of controversy are unknown Lyons v. Los Angeles (choke hold case) –Claim for injunction moot no longer subject to previous illegal choke hold –Claim for injunction not ripe not certain he will again be subject to choke hold