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Federal Courts
University of Kansas School of Law
Sward, Ellen E.

I. Judicial Review

A. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison
B. Interpretations. There are 3 views of what this might mean.
1. Narrow View. Cts may interpret law w/ respect to judicial power, but may not go beyond that
2. Middle View. SC may refuse to give effect to acts of C generally where constitutionality is at issue
3. Broad View. The SC speaks on the constitutionality of a law and that decision is final.

II. Justiciability

A. Standing.
1. Generally. Standing is a limitation on one’s ability to bring suit. It is derived for the case or controversy requirement of the Constitution. Art. III, § 2
a. Means that P must have some direct, concrete interest in the outcome of the case
2. Justifications:
a. Separation of power: it limits the matters the judiciary can address and thus limits review
b. Judicial efficiency: prevents a flood of lawsuits by those w/ an ideological goal
c. Preservation of political capital
d. Improve decision making by having a well defined case and controversy
e. Stops intermeddlers
3. Constitutional Requirements. (i) Injury in Fact; (ii) Causation; and (iii) Redressability.
a. Injury in Fact:
i. Generally Party seeking review must be among injured. The injury must be both (i) concrete and particularized, and (ii) actual or imminent Lujan v. Defenders of Wildlife
1. Nexus. Π’s injuries do not have to be connected to the claim Π alleges. There need be no relationship b/w injury claimed and basis of Π’s claim. Injury might be thermal pollution, while claim is a due process challenge. Duke Power Note This is an aberration.
ii. Social Stigma Risk of social stigma is not enough to satisfy injury requirement. Allen v. Wright
iii. Equal Protection. Denial of equal protection is a particularized grievance. Examples:
1. Admission to School. Π must actually be refused admission to school which accepts federal funding before injury requirement is satisfied. Allen v. Wright
2. Minority Set-Aside Program. Π challenging set-aside program for gov’t contracts asserts a particularized injury b/c this is a denial of equal treatment. Assoc. Gen. Contractors
iv. Environmental Injury. Environmental injuries will satisfy the injury requirement where (i) the environmental harm is imminent, and (ii) the Π is personally connected to the land being harmed. You cannot sue based on an ecosystem, vocational, or animal nexus.
1. Imminence of Harm. The imminence of the threat of harm is critical. Where injurious activity continues after suit is filed, there is an imminent threat of harm. Friends of the Earth v. Laidlaw BUT, where the Δ ceases the injurious activity, even after suit is filed, the imminent threat may no longer exist. Steel Co. v. Citizens for a Better Environment
2. Π’s Connection. P must show that he uses the specific land that is being harmed or defiled. Lujan v. Defenders of Wildlife
v. Parental Injury. Before a parent may assert a personal injury stemming from an injury to a child, the parent must be the legal guardian of the child. Generally, however, these types of injuries will be generalized grievance concerns. Elk Grove Unified School Dist. v. Newdow
vi. Future Harm Requirement:
1. Injunctive Relief Sought: P must show that he will be harmed in the future. Lyons –chock hold
2. Requires a particular victim be threatened
3. Shows that standing depends on the remedy sought
4. A desire to visit area in future- insufficient—need to show concrete plans: Defenders of Wildlife
vii. Organizational Injury. An organization will have standing to sue on its own behalf where it has suffered an injury. It will also have standing where any of its members have suffered injury and have standing individually. Lujan v. Defenders of Wildlife; Friends of the Earth v. Laidlaw
1. Member Injury. An association cannot claim an injury unless its members have some personal injury and otherwise have standing to sue in their own right. Sierra Club v. Morton
2. Members must show more than abstract interest; some physical presence is required. Sierra Club
3. Germaneness: Interests sought for protected must be germane to organization’s purpose
4. Self-Contained Claim or Relief. The claim asserted or relief requested must not require the participation of individual members.

viii. Procedural Injury. Failure to perform the procedural requirements of federal law may create sufficient injury if the Π has a close connection to the affected site. If the Π does not have a close connection, injury is a generalized injury. Lujan v. Defenders of Wildlife (failure to perform an environmental impact survey)
ix. Institutional Injury. Generally, injury to an institution, as opposed to personal injury, does NOT satisfy the injury req

sation may be found where the government erects a barrier that makes it more difficult for a group to obtain a benefit. Assoc. Gen. Contractors But see Warth à economics is responsible not gov. action
c. Redressability:
i. Generally. The requested relief must force the Δ to alter its conduct so that there is no longer an injury. Redressability fails if the Δ did not cause the injury.
ii. Probability. Essentially a probability inquiry; how likely is a favorable ruling to remove the injury?
iii. Split Claims. The remedy sought may affect the redressability determination. The Court may split the Π’s claimed injuries and remedies sought to make particular redressability determinations.
iv. Deterrence. Where there is an imminent threat of future violation of a statute, court action may create a deterrent and satisfy the redressability requirement. Steel Co. Citizens for a Better Environment
1. Civil Penalties Payable to the U.S. These penalties do not remedy an individual injury and cannot satisfy the redressability requirement where the harmful activity has ceased before trial. Steel Co. Citizens for a Better Environment BUT where the harmful activity continues, such penalties serve as a deterrent and do satisfy the redressability requirement. Friends of the Earth v. Laidlaw
a. Qui Tam actions may get around this b/c the P gets a percentage of gov. recovery. Vermont
2. Injunction. Threat of harm must be imminent before injunction will satisfy the redressability requirement. Example: police brutality victim may seek money damages, but not an injunction b/c the risk of another beating is not imminent. Lyons
v. Zoning and Housing Cases. Where economics is responsible for lack of low-income housing, rather than zoning laws, third party’s refusal to build low income housing would not be redressed by court action. Π must show plan to build ability to build before ct action will redress any harm. Warth