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Federal Jurisdiction
University of North Carolina School of Law
Nichol, Gene R.

Federal Jurisdiction – Nichol – Fall 2008
NOTE: Exercise of judicial power required jurisdiction at ALL times.
I.                   Theory for Judicial Review
A.    Syllogism
1.      The judicial branch is charged with deciding cases
2.      Cases are determined by law
3.      The judicial branch is the branch which determine what the law is
4.      The Constitution is law
5.      Statutes are law
6.      Constitution prevails over statutes
7.      Therefore, judges must decide based on Constitution if/when Constitution conflicts w/a statute.
B.     Conclusions from Syllogism
1.      The premise for judicial review is based on the judicial power to decide cases
2.      THEREFORE, judicial review can only occur in the context of deciding a CASE.
a.       The decision to find a statute or action unconstitutional is technically specific to parties in the case.
b.      Congress can still pass similar legislation, but judicial branch might not recognize 
c.       Exec. Branch could attempt to enforce unconstitutional law, but Judicial Branch won’t recognize it in subsequent cases.
d.      Nothing in the Constitution prevents the Executive or Legislative Branches from interpreting the Constitution and applying it the way they see fit, until a CASE arises.
II.                Case or Controversy Requirement
A.    General Requirements:
1.      Standing
2.      Ripeness
a.       Injury is too prospective, has yet to occur
3.      Mootness
a.       Injury is retrospective, and has since been removed
B.     Standing
1.      NO advisory opinions
a.       Fed. Cts can’t make advisory opinions
i.                    No factual predicate to base decision on
ii.                  Law could be enforced constitutionally or unconstitutionally depending on exec. Branch
iii.                Also a separation of powers argument-would permit too much interference w/Executive & Leg. Branches
b.      State Cts. can (about ½ do)
2.      Art. III Limitations (Constitutional minimal standards)
a.       Injury-In-Fact
b.      Fairly Traceable/Causation
c.       Redressible By court
3.      Precedential Limitations
a.       Definition: Judicially imposed, but not discretionary, limitations
i.                     Congress can modify or abrogate by creating (and eliminating) new rights/protections which can be injured.
b.      Tests Used
i.                    Zone of interest test
ii.                  Generalized grievances test
iii.                3rd Party Rule
4.      Political Question Limitation
i.                    Not looking at whether court has power to hear cases, but if court should hear the cases
ii.                  Court mixes the issue into standing inquiry
b.      Example
i.                    Allen v. Wright: Court considered the issue of tax exempt statute for schools that are discriminating an issue that should be addresses by another branch of gov’t, not Courts
5.      Side-Stepping Standing
a.       “Hypothetical jurisdiction”
i.                    Definition: when a judge side-steps a difficult standing issue, concludes that the claim has no merit and decides on merits of the case in negative.
ii.                  NOT PERMITTED: B/c there is no case or controversy
b.      Permissible Side-steps (Marathon Oil, pg. 27 n.4)
i.                    Dismissal for lack of Personal Jurisdiction
ii.                  Class cannot be certification
6.      Based on Pleadings
a.       The standing inquiry should be based on the pleadings
i.                    Accept all material allegations as true
ii.                  Can request or allow affidavits or amendments to complaint to give more particularized injury
C.     Standing: Injury-in-fact
1.      Injury to a legally protected interest
2.      Three Requirements of the injury
a.       Distinct
i.                    Injury affects P different that population at large
b.      Palpable
i.                    Concrete, tangible
ii.                  NOT ethereal
c.       Imminence
i.                    Actual or threatened harm
3.      Malleable Requirements
a.       These requirements are malleable
b.      SC will make case fit if they think it is an important case
c.       Ex: SC took Flast case and Gerrymandering cases and affirmative action cases.
4.      Dependent on Society/Times
a.       There are some injuries that society refuses to recognize.
i.                    SC has refused to recognize an injury for mere violation of a statute; the violation must have

tax exempt status to schools that discriminate which creates injury b/c prevents children from attending desegregated schools (an ijury recognized in Brown v. Board), but SC doesn’t think preventing gov’t support of these institutions will stop discriminatory behavior which is bases on a 3rd P action.
iv.                Mass v EPA: The SC found that this injury was fairly traceable (BROAD APPLICATION OF TEST)
E.     Standing: Redressible by Court
1.      Definition
a.       The court must be able to provide an appropriate remedy that will correct the harm/injury.
2.      Relationship to other standing requirements
a.       The more ethereal an injury is, the more likely it can be redressed by the court (Bakkti case).
b.      The more concrete an injury, the more difficult it is for the court to address (Warth case).
3.      Examples
a.       Warth Case: P couldn’t show that removing the illegal zoning laws would allow them to purchase homes in that area, so court didn’t find claims Redressible-even if zoning laws removed the plaintiffs couldn’t get house. (STRICT APPLICATION/VERRSION)
b.      Allen v. Wright: Changing the tax exempt status of the discriminating schools won’t change the schools behavior, so the injury-not having the opportunity to go to desegregated school–can’t be redressed by the court. While if the injury had instead been categorized as the more ethereal injury of the gov’t sponsoring an institution that discriminates, then the court would have been able to redress that injury.
F.      Prudential: Zone-of Interest Test
1.      Question to be asked
a.       Whether the person’s interest to be protected is arguable in the zone of interest to be protected or regulated buy statute or Constitutional guarantee whose violation forms the basis for the legal complaint.
2.      Two Different Analysis