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Chapter 16


In order for a case to be heard by the federal courts, the plaintiff must overcome a series of procedural obstacles that we collectively call the requirements of “justiciability.” Here is an overview of each of these obstacles:

  • Advisory opinion: The federal courts may not issue opinions based on abstract or hypothetical questions. This is known as the prohibition of “advisory opinions. It stems from the fact that the Constitution limits federal court jurisdiction only to “cases and controversies.”
  • Standing: The most important single justiciability requirement is that the federal courts may hear a case only when the plaintiff has “standing” to assert his claim. By this, we mean that the plaintiff must have a significant stake in the controversy.
    • Requirement of “injury in fact”: That is, P must show that he has suffered an “injury in fact. That is, P must show that he has himself been injured in some way by the conduct that he complains of.
    • Three requirements: Generally, there are three standing requirements that the plaintiff must meet: (1) he must show that he has suffered (or is likely to suffer) an “injury in fact”; (2) the injury he is suffering must be concrete and “individuated”; and (3) the action being challenged must be the “cause in fact” of the injury.
    • Rights of third persons: A key function of the standing doctrine is that it prevents a litigant from asserting the constitutional rights of “third persons” not before the court. (However, there are several exceptions to the rule that P may not assert third-party rights; First Amendment overbreadth is an example.)
  • Mootness: A case may not be heard by the federal courts if it is “moot.” A case is moot if events occurring after the filing have deprived the litigant of an ongoing stake in the controversy.
  • Ripeness: A case is not yet “ripe,” and therefore not yet decidable by a federal court, if it has not yet become sufficiently concrete to be easily adjudicated. For instance, if a criminal statute is almost never enforced, P’s challenge to the constitutionality of the statute may be found not to be ripe if it is unlikely that the statute will be enforced against P.
  • The 11th Amendment and suits against the states: The 11th Amendment bars certain types of suits against states. In particular, the amendment bars most types of damage suits against the state, including suits where the plaintiff is a citizen either of the defendant’s state or some other state.
  • Political questions: Certain issues are held to involve non-justicable “political questions.
    • Commitment to another branch: For instance, a case will be found to pose a non-justicable political question if it raises an issue whose determination is clearly committed by the Constitution to another branch of the federal government rather than the judiciary. Many issues concerning impeachment fall into this category.
    • Lack of manageable standards: Alternatively, an issue may be found to be a non-justiciable political one if there are “no manageable standards” to guide the judiciary in deciding that issue.


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