What is Justiciability? Standing, Mootness & Ripeness - The Key to Whether A Case or Controversy is Justiciable - Con Law MBE and MEE

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             One of the nuanced and tricky areas of Con Law involves the concept of justiciability.  In short, a case or controversy must be justiciable.  There are four distinct issues to assess in determining whether a case is justiciable.

Yes, the concept of standing is the more heavily tested of these four issues, but we should not forget about mootness, ripeness, and the political question doctrine.  We can tackle them one by one, below.

            Standing

This refers to the issue of whether the plaintiff is a proper party to bring this particular case to court.  There are four individual requirements for purposes of standing. One – Injury in that the plaintiff must allege and prove that he or she has been injured or imminently will be injured.  Two – The plaintiff must show that the defendant caused the injury so that a fav court decision is likely to remedy the harm, known as causation and redressability. Three, generally, and there are a couple of exceptions, there is NO third-party standing meaning that a plaintiff CAN’T assert claims of others who are NOT before the court.  Four, there are NO generalized grievances, in other words, CAN’T sue SOLELY as taxpayer or citizen. 

IN SHORT – The plaintiff must allege and prove either past injury or imminent injury, which has been personally suffered (no suit is available for someone else’s injury, with some limited exceptions), which was caused by Defendant, and which is redressable. If the Plaintiff cannot make out all of these elements, Plaintiff does not have standing and the suit will not be heard. 

BAR EXAM NOTE – The MBE can and has tested each of the four elements of standing, so be sure to know all of them.  The basic definition of standing is not sufficient for success on/with these standing MBE questions.

            Mootness

So, what happens if there are subsequent events that transpire after the filing of a lawsuit and plaintiff’s injury?  The case MUST be dismissed as moot because a plaintiff must present a LIVE controversy, though a non frivolous money damage claim will keep the case alive.  There are three exceptions to this rule: 1 – The wrong is capable of repetition but EVADES review bec of its inherently limited time duration OR 2 – Voluntary cessation, in other words the defendant says he will stop, but does not OR 3 – Class action suits where someone in the class still has an injury.

This case or controversy requirement means the Plaintiff must bring a “live” controversy, not an issue which has already been resolved or invalidated in some other way.

            Ripeness

The question of whether a federal court may grant pre-enforcement review of a statute or reg shown by (A) - The hardship that will be suffered without pre-enforcement review and (B) – The fitness of the issue and the record for judicial review.

BAR EXAM NOTE: Look for a plaintiff who is asking for injunctive relief.

            Political Question Doctrine

Refers to constitutional violations that the federal courts will NOT adjudicate and they include four kinds of dismissed cases as non justiciable political Q questions - 1 – US shall guarantee a republican form of govt (Art IV, Sec 4); 2 – Challenges to Presidential conduct of foreign policy; 3 – Challenges to the impeachment and removal process; 4 – Challenges to partisan gerrymandering.

Conclusion

  It is extremely important to understand the concept of Justiciability, which includes knowing all four elements.  Success on the likely 2-3 MBE questions in this area of law, and perhaps success on a Con Law MEE issue depends on your knowledge of the law. For more information concerning this section of Con Law, another area of Con Law, or a different legal topic tested on the UBE, please do not hesitate to contact us at PassYourBarExam@gmail.com

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