2) con_law_attack_sheet

2) con_law_attack_sheet - CAN THE SUPREME COURT HEAR THE...

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CAN THE SUPREME COURT HEAR THE CASE? 1. Justicability : jurisdiction only for cases and controversies (Art. III, § 2) a. Political question? Look for issues with the relationship b/t the Judiciary and other branches i. Question is about deference , not about obligation Spectrum, not binary choice 1. Court should have the power to review cases where the Senate removed an impeached officer summarily without a hearing, or through some arbitrary process, such as "a cointoss" (Souter concurrence: Nixon v. United States ) ii. Elements ( Baker v. Carr ) 1. Textual commitment : determination of an issue is clearly committed to another branch a. Ex. Foreign affairs and executive war powers (Brennan from Baker ) 2. Lack of standards : lack of judicially discoverable and manageable standards for resolving the issue 3. Policy determination : impossible to decide the case w/o an initial policy determination 4. Avoid disrespect : impossible to undertake independent resolution w/o showing a lack of due respect for other branches 5. Unique adherence : unusual need for unquestioning adherence to a political decision already made 6. Avoid embarrassment b. Advisory opinion? ( Muskrat ) i. Declaratory judgment? 1. Actual dispute (case in controversy) b/t adverse parties? 2. Some possibility of a future need for relief as among the parties? DJ allowed ii. Independent and adequate state ground? c. Ripeness? i. Injury wholly speculative? d. Mootness? i. Parties have a concrete and meaningful stake? ii. Collateral consequences? e. Standing? ( Allen v. Wright ) i. Non-individualized harm? ii. Third parties’ rights? iii. Target or beneficiary of gov’t regulation? ( Allen ) iv. Does plaintiff have: 1. An injury in fact? a. Concrete and particularized? b. Actual or imminent? (not conjectural or hypothetical? – Lujan v. Def. of Wildlife ) 2. A causal relationship b/t the injury and the challenged conduct? a. Injury has not resulted from the independent action of some 3d party not before the court 3. A likelihood that the injury will be redressed by a favorable decision?
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2. Jurisdiction : (Art. III, § 2, cl. 2) a. Original Jurisdiction i. Ambassadors/ministers/counsels and cases where a state is a party b. Appellate Jurisdiction i. Decision relied on federal law? 1. Independent and adequate state ground? ii. Has Congress limited appellate jurisdiction? (Exceptions Clause) 1. Was the limitation neutral? Or did Congress decide the merits of the case under the guise of limiting jurisdiction? 2. Cannot consider Congress’s motive ( McCardle ) iii. Has Congress stripped all federal courts of both original and appellate jurisdiction? 1. Traditional View: Cong. has plenary auth. over Fed. Court jurisdiction 2. Court has avoided the question and prefers not to answer it 3. *Court’s role in the constitutional system* a. Arguments for constitutionality: i. Exceptions Clause: “supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such
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This note was uploaded on 09/21/2009 for the course LAW All taught by Professor All during the Fall '09 term at University of the West.

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2) con_law_attack_sheet - CAN THE SUPREME COURT HEAR THE...

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