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Tuesday, April 29, 2014

Federal Courts Can Be a Tough Subject

Howard Wasserman at PrawfsBlawg has this post about the argument in Susan B. Anthony List v. Driehaus. Wasserman quotes this selection of the argument:

JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness. 
MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
Wasserman explains why Mr. Carvin was having a difficult time with the question:

It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.
I took Federal Courts this semester and I will soon need to work through the standing/mootness distinction as I put my outline together. I considered including this selection from the Susan B. Anthony List argument as a fallback position to take if I am confronted with a set of facts that blurs the line between standing and ripeness. But I am not sure that Professor Varat will be as sympathetic to that approach on an exam as Professor Wasserman is to this approach in oral argument.

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