JUSTICIABILITY

B. Declaratory judgments:  A declaratory judgment is one in which the court is not requested to award damages or an injunction, but rather, requested to state what the legal effect would be of proposed conduct by one or both of the parties.

1. Some actions allowed:  The Court has permitted federal court decision or review of at least those declaratory judgment actions which are reasonably concrete.

2. Insufficiently concrete:  But if a declaratory judgment action presents only questions which are unduly hypothetical or abstract, the federal court may conclude that it is being called upon to issue an illegal advisory opinion, not because the action is for a declaratory judgment, but simply because no specific, concrete controversy exists.

a. Criminal statutes:  A plaintiff seeking a declaratory judgment that a criminal statute is unconstitutional must generally show either: (1) a sometimes-enforced prohibition which on its face clearly applies to conduct in which the plaintiff has regularly engaged or will engage; or (2) an actual threat that the statute will be enforced against the plaintiff (in the case of a statute which on its face does not unambiguously cover the plaintiff’s conduct). See Tribe, p. 78. If neither showing is made, the declaratory judgment action will be dismissed as being unduly hypothetical.

III.STANDING

A. Nature of “standing” generally:  When we say that a litigant must have “standing” to assert his claim, we mean that he must have a significant stake in the controversy to merit his being the one to litigate it. Thus standing focuses mostly on the party asserting the claim, whereas most other elements of justiciability focus upon the nature of the issue being litigated. See Tribe, p. 107. The study of standing is thus the study of what kind of interests in the outcome of a controversy are sufficient.

1. Policies behind doctrine:  The requirement of standing reflects principally the policy against allowing federal courts to act like a “roving commission” whose purpose is to enforce judges’ own views of legality or the interests of “bystanders” in having constitutional or statutory principles adhered to.

2. Special relevance to constitutional issues:  In most civil actions, the existence of standing is quite clear. The tort plaintiff who alleges personal injury, for instance, and the contract plaintiff who alleges economic damages from a breach, clearly have a sufficiently direct and personal stake in the suit’s outcome that they should be permitted to litigate it. But in much constitutional litigation, where a plaintiff alleges that the government has acted in an unconstitutional manner, it will be much less clear that the governmental action has affected the plaintiff more directly than any other citizen, or that resolution of the dispute in his favor will be of special benefit to him.