DOCSLIB.ORG

Deconstitutionalizing Justiciability: the Example of Mootness Evan Tsen Lee UC Hastings College of the Law, [email protected]

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Deconstitutionalizing Justiciability: the Example of Mootness Evan Tsen Lee UC Hastings College of the Law, Leee@Uchastings.Edu University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1992 Deconstitutionalizing Justiciability: The Example of Mootness Evan Tsen Lee UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603 (1992). Available at: http://repository.uchastings.edu/faculty_scholarship/347 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Lee Evan Author: Evan Tsen Lee Source: Harvard Law Review Citation: 105 Harv. L. Rev. 603 (1992). Title: Deconstitutionalizing Justiciability: The Example of Mootness Originally published in HARVARD LAW REVIEW. This article is reprinted with permission from HARVARD LAW REVIEW and Harvard Law School . VOLUME 105 JANUARY 1992 NUMBER 3 HARVARD LAW REVIEW DECONSTITUTIONALIZING JUSTICIABILITY: THE EXAMPLE OF MOOTNESS Evan Tsen Lee TABLE OF CONTENTS PAGE I. INTRODUCTION ........................................................... 6o5 II. ARTICLE III AND MOOTNESS DOCTRINE: DOCTRINAL RUDIMENTS ................. 61o m. THE AFFIRMATIVE CASE FOR DECONSTITUTIONALIZING MOOTNESS ............... 612 A. The Presumption in Favor of CongressionalControl of FederalJurisdiction ... 612 B. Methods of Restricting Jurisdiction:Maintaining Legislative-Judicial Colloquy .............................................................. 6x5 i. Restriction by Prudential Measures ................................... 616 2. Restriction by Explicit Statute ....................................... 617 3. Restrictive Interpretation of JurisdictionalGrant ....................... 618 C. Previous Incursions into the Constitutional Core of Mootness Jurisprudence .. 623 z. The Elusive Concept of "PersonalStake" . ............................. 623 2. Two Models of Adjudication ......................................... 625 (a)The "Dispute Resolution" Model .................................. 626 (b) The "Public Values" M odel ....................................... 627 3. Square Pegs and Round Holes ...................................... 628 4. Squaring the Circle: A Normative Justificationfor the Public Values M odel ...................................................... 631 IV. REBUTTING THE CASE AGAINST REMOVING ARTICLE III FROM MOOTNESS JURISPRUDENCE ...... ............................................... ..... 636 A. Interpretation of "Cases" and "Controversies". ........................... 636 z. History and Tradition .......................... ............... 637 2. Structure of Article III ........................................... 641 B. The Prohibition Against Adviwry Opinions ........................... 643 . Post-Judgment Review by Another Branch ................. ....... 645 2. Pre-Enactment Review .............................................. 647 3. Adequate and Independent State Grounds ......................... 647 4. Dicta ............... ....... ............................... 648 ,5. Mootness, Ripeness, and Standing .................................. 649 C. The Due Process Defense of the Justiciability Doctrines .................... 65 HeinOnline -- 105 Harv. L. Rev. 603 1991-1992 604 HARVARD LAW REVIEW [Vol. 105:603 V. MlOOTNESS AS A PURELY PRUDENTIAL DOCTRINE .................................. 654 A. General Considerations ................................................. 656 B . Examples ............................................................. 657 i. The ROTC Requirement Case ........................................ 657 2. The Anti-Abortion Protesters Case .................................... 66o 3. The FirefightersHiring Case ......................................... 663 VI. CONCLUSION ............................................................. 668 HeinOnline -- 105 Harv. L. Rev. 604 1991-1992 19921 DECONSTITUTIONALIZING MOOTNESS ARTICLE DECONSTITUTIONALIZING JUSTICIABILITY: THE EXAMPLE OF MOOTNESS Evan Tsen Lee* Federal courts often invoke the justiciability doctrines - standing, ripe- ness, and nootness - to bring potentially important public litigation to frustratingly anticlimactic conclusions. According to orthodox understand- ings, the doctrines, rooted in Article III of the Constitution, disempower federal courts from deciding certain kinds of cases. In this Article, Professor Lee proposes that mootness doctrine be freedfrom its constitutionalmoorings. He argues that our constitutionalscheme creates a presumption in favor of preserving a degree of legislative control over federal court jurisdiction and that *thejusticiability doctrines must be deconstitutionalizedfor Congress to have such control. Limiting his discussion to mootness, Professor Lee argues that the Court should transform mootness from a constitutionaldoctrine into a prudential doctrine that would enable federal courts to decide technically moot cases whenever a decision on the merits would help give true and concrete meaning to important "public values." Professor Lee then rebuts objections to his proposal: he argues that the historical evidence on the original meaning of "cases" and "controversies" does not adequately justify the view that those terms exclude moot cases; on the contrary, the structure of Article II points to a meaning of "cases" and "controversies" unrelated to justiciability. He contends further that neither the constitutional prohib- ition on rendering advisory opinions nor concerns about faithfulness to the adversary process undermine the argument for deconstitutionalization. Fi- nally, Professor Lee explores how a prudential approach to mootness might have been applied in three recent cases that were dismissed by federal courts on mootness grounds. I. INTRODUCTION O NE of the major impediments to the judicial protection of col- lective rights1 is the group of doctrines falling under the rubric *Associate Professor, University of California, Hastings College of the Law. I benefited from comments by Larry Alexander, Akhil Amar, Lea Brilmayer, Willy Fletcher, Mary Kay Kane, John Makin, Henry Monaghan, Keith Wingate, and Chris Wonnell. Rick Costello provided excellent research assistance. I gratefully acknowledge receipt of the Roger Traynor Scholarly Publication Award in conjunction with this work, which is dedicated to the memory of my mother, Juana Tankhoan Lee. I By collective rights, I mean rights that we normally think of as belonging more to identi- fiable groups than to individuals. See, e.g., Flast v. Cohen, 392 U.S. 83, 103 (1968) (recognizing the Establishment Clause right of taxpayers to challenge federal funding of instruction in religious schools); Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (establishing the Fourteenth Amendment right of public school children to attend nonsegregated schools). My proposal for HeinOnline -- 105 Harv. L. Rev. 605 1991-1992 HARVARD LAW REVIEW [Vol. 105:603 of "justiciability" - standing, ripeness, and mootness. 2 These are the gatekeeper doctrines; each regulates a different dimension of entrance to the federal courts. The law of standing considers whether the plaintiff is the proper person to assert the claim, the law of ripeness ensures that the plaintiff has not asserted the claim too early, 3 and the law of mootness seeks to prevent the plaintiff from asserting the claim too late. 4 By keeping certain public-minded plaintiffs and pub- lic-law claims out of federal court, these doctrines have shifted much of the battle for collective rights to the more steeply pitched fields of state courts or the political process. 5 In particular, defendants in public law litigation have had considerable success keeping such cases out of the federal courts by invoking the "case or controversy" re- a new mootness doctrine would apply to the vindication of individual rights as well as collective rights. However, I emphasize collective rights because deconstitutionalization would have a more profound effect in public interest litigation than in any other area. 2 1 omit consideration of a fourth justiciability doctrine - the political question doctrine - because it raises different concerns. Cf. Gene R. Nichol, Jr., Abusing Standing: A Comment on Allen v. Wright, 133 U. PA. L. REv. 635, 644 (1985) ("At the jurisdictional stage, separation of powers interests have long been considered the bailiwick of the political question doctrine."). To borrow Professor Henry Monaghan's shorthand expressions for the justiciability doctrines, standing, mootness, and ripeness concern themselves with the "who" and "when" of adjudication in federal court, see Henry P. Monaghan, ConstitutionalAdjudication: The Who and When, 82 YALE L.J. 1363, 1364 (1973); the political question doctrine concerns itself with "what" is being adjudicated, see, e.g., Goldwater v. Carter, 444 U.S. 996, iooz-o6 X1979) (plurality opinion) (holding that a challenge to presidential termination of a defense treaty was a nonjus- ticiable political question). 3 See DAVID P. CURRIE, FEDERAL COURTS: CASES AND MATERIALS 61 (4 th ed. i99o) (explaining that standing is concerned with "who is a proper party to litigate" and that ripeness is concerned with "when a proper
Load more

Recommended publications
  • Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit
    No. 15-___ IN THE SEQUENOM, INC., Petitioner, v. ARIOSA DIAGNOSTICS, INC., NATERA, INC., AND DNA DIAGNOSTICS CENTER, INC. Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit PETITION FOR A WRIT OF CERTIORARI Michael J. Malecek Thomas C. Goldstein Robert Barnes Counsel of Record KAYE SCHOLER LLP Eric F. Citron Two Palo Alto Square G OLDSTEIN & RUSSELL, P.C. Suite 400 7475 Wisconsin Ave. 3000 El Camino Real Suite 850 Palo Alto, CA 94306 Bethesda, MD 20814 (650) 319-4500 (202) 362-0636 [email protected] QUESTION PRESENTED In 1996, two doctors discovered cell-free fetal DNA (cffDNA) circulating in maternal plasma. They used that discovery to invent a test for detecting fetal genetic conditions in early pregnancy that avoided dangerous, invasive techniques. Their patent teaches technicians to take a maternal blood sample, keep the non-cellular portion (which was “previously discarded as medical waste”), amplify the genetic material with- in (which they alone knew about), and identify pater- nally inherited sequences as a means of distinguish- ing fetal and maternal DNA. Notably, this method does not preempt other demonstrated uses of cffDNA. The Federal Circuit “agree[d]” that this invention “combined and utilized man-made tools of biotechnol- ogy in a new way that revolutionized prenatal care.” Pet.App. 18a. But it still held that Mayo Collabora- tive Servs. v. Prometheus Labs., 132 S. Ct. 1289 (2012), makes all such inventions patent-ineligible as a matter of law if their new combination involves only a “natural phenomenon” and techniques that were “routine” or “conventional” on their own.
    [Show full text]
  • Bush V. Superior Court (Rains), 10 Cal.App.4Th 1374 (1992)
    Supreme Court, U.S. FILED ( p NOV 272018 1.1 No. k I \ zy OFFICE OF THE CLERK iiiii ORGNAL SUPREME COURT OF THE UNITED STATES RASH B. GHOSH and INTERNATIONAL INSTITUTE OF BENGAL BASIN, Petitioners, V. CITY OF BERKELEY, ZACH COWAN, LAURA MCKINNEY, JOAN MACQUARRIE, PATRICK EMMONS, GREG HEIDENRICH, CARLOS ROMO, GREG DANIEL, MANAGEWEST, BENJAMIN MCGREW, KORMAN & NG, INC., MICHAEL KORMAN, MIRIAM NG, ROMAN FAN, ROBERT RICHERSON, KRISTEN DIEDRE RICHERSON, ANDREA RICHERSON, DEBRA A. RICHERSON, AND PRISM TRUST, Re s p0 ii den t S. On Petition For a Writ of Certiorari To The California Court of Appeal, First Appellate District PETITION FOR A WRIT OF CERTIORARI Rash B. Ghosh Pro Se P. 0. Box 11553 Berkeley, CA 94712 (510) 575-5112 THE QUESTION PRESENTED Ghosh owned two adjacent buildings in Berkeley, and the co- plaintiff, International Institute of Bengal Basin (IIBB) occupied one of them. In a pending lawsuit, petitioners filed a third amended complaint, alleging that newly discovered evidence showed that the newly-named defendants conspired with the other defendants to deprive them of their property and arrange for it to be sold at a below-market price to some of the new. defendants. The trial court sustained demurrers by the defendants, and Ghosh and IIBB sought to appeal. Because Petitioner Ghosh had been found to be a vexatious litigant, he had to make application to the presiding justice of the Court of Appeal for permission to appeal, and show that the appeal had merit. He made application, and pointed out numerous (and sometimes obvious) errors the trial court had made in sustaining the demurrer.
    [Show full text]
  • Abstention and Primary Jurisdiction: Two Chips Off the Same Block?
    Cornell Law Review Volume 60 Article 3 Issue 1 November 1974 Abstention and Primary Jurisdiction Two Chips Off the aS me Block-a Comparative Analysis Sidney A. Shapiro Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Sidney A. Shapiro, Abstention and Primary Jurisdiction Two Chips Off ht e Same Block-a Comparative Analysis, 60 Cornell L. Rev. 75 (1974) Available at: http://scholarship.law.cornell.edu/clr/vol60/iss1/3 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ABSTENTION AND PRIMARY JURISDIC- TION: TWO CHIPS OFF THE SAME BLOCK?-A COMPARATIVE ANALYSIS* Sidney A. Shapirot I INTRODUCTION A plaintiff who properly qualifies for federal jurisdiction may not always receive a hearing in federal court. Although the right of the plaintiff to be in federal court is to be respected,1 other concerns of administering justice sometimes result in the federal courts sending the plaintiff to litigate his claims elsewhere. Two of the most frequently espoused reasons for sending plaintiffs to another decision-maker are the doctrines of abstention and pri- mary jurisdiction.2 * The views herein expressed are those of the author and do not necessarily reflect the views of the Federal Trade Commission. t Member of the Pennsylvania Bar. Staff Attorney for the Federal Trade Commission.
    [Show full text]
  • Jurisdiction Over Crimes Albert Levitt
    Journal of Criminal Law and Criminology Volume 16 | Issue 4 Article 5 1926 Jurisdiction over Crimes Albert Levitt Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Albert Levitt, Jurisdiction over Crimes, 16 J. Am. Inst. Crim. L. & Criminology 495 (May 1925 to February 1926) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. JURISDICTION OVER CRIMTlES-ll ALBERT LEvITTa III-THE COSMOPOLITAN THEORY Two theories of jurisdiction over crime dominate our law. The first is the territorial theory.- According to this theory the matter of prime importance is the determination of the place where the offense was committed. The courts of the territory within which the offender committed his offense have jurisdiction over that offense. Courts out- side of that territory had no power to try the offender or to take cog- nizance of the offense in any way. The place where the "gist" of the offense occurred fixed the locus of the crime. The gist of the offense was deemed to be that element of the offense without which the offense could not be said to exist. Sometimes the gist of the offense was looked upon as the act which was done, as in the case of homicide, where the act of shooting was the gist of the offense.
    [Show full text]
  • In the United States District Court Northern District of Texas Dallas Division
    Case 3:16-cv-01694-M-BN Document 22 Filed 09/12/16 Page 1 of 24 PageID <pageID> IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION PAUL SHUNATONA, § § Plaintiff, § § V. § No. 3:16-cv-1694-M-BN § WELLS FARGO BANK, NATIONAL § ASSOCIATION, § § Defendant. § FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE This case has been referred to the undersigned United States magistrate judge for pretrial management pursuant to 28 U.S.C. § 636(b) and a standing order of reference from Chief Judge Barbara M. G. Lynn. Plaintiff Paul Shunatona (“Shunatona” or “Plaintiff”) has filed a combined Motions for Leave to Amend, Dismiss Claim, Enter Stipulation, Abate and Vacate Orders, and Remand to State Court. See Dkt. No. 15. Defendants Wells Fargo Bank, National Association (“Wells Fargo” or “Defendant”), filed a response, see Dkt. No. 20, and Shunatona filed a reply, see Dkt. No. 21. The undersigned issues the following findings of fact, conclusions of law, and recommendation that the Court grant the Motions for Leave to Amend, Dismiss Claim, and Enter Stipulation and deny the Motions to Abate and Vacate Orders and Remand to State Court. -1- Case 3:16-cv-01694-M-BN Document 22 Filed 09/12/16 Page 2 of 24 PageID <pageID> Background Shunatona filed this case against Wells Fargo in Dallas County state court on May 16, 2016. See Dkt. No. 1-5. Plaintiff’s Original Petition and Request for Disclosure alleges two counts against Wells Fargo and seeks to set aside the foreclosure of – and quiet title in Shunatona’s name to – real property located at 11215 Sesame Street, Dallas, Texas 75288 (the “Property”) as well as to affirm Shunatona’s ownership of certain funds currently held by the Texas Comptroller and award damages to Shunatona.
    [Show full text]
  • ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional Philosophy of Writs
    CLASS- B.A.LL.B VIIIth SEMESTER SUBJECT- ADMINISTRATIVE LAW PAPER CODE- 801 TOPIC- WRITS Constitutional philosophy of Writs: A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual. Writ is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an act or abstain from doing an act. Understanding of Article 32 Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2).
    [Show full text]
  • Guantanamo, Boumediene, and Jurisdiction-Stripping: the Mpei Rial President Meets the Imperial Court" (2009)
    University of Minnesota Law School Scholarship Repository Constitutional Commentary 2009 Guantanamo, Boumediene, and Jurisdiction- Stripping: The mpI erial President Meets the Imperial Court Martin J. Katz Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Katz, Martin J., "Guantanamo, Boumediene, and Jurisdiction-Stripping: The mpeI rial President Meets the Imperial Court" (2009). Constitutional Commentary. 699. https://scholarship.law.umn.edu/concomm/699 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article GUANTANAMO, BOUMEDIENE, AND JURISDICTION-STRIPPING: THE IMPERIAL PRESIDENT MEETS THE IMPERIAL COURT Martin J. Katz* INTRODUCTION In Boumediene v. Bush,1 the Supreme Court struck down a major pillar of President Bush's war on terror: the indefinite de­ tention of terror suspects in Guantanamo Bay, Cuba. The Court held that even non-citizen prisoners held by the United States government on foreign soil could challenge their confinement by seeking a writ of habeas corpus in federal court, and that the procedures the government had provided for such challenges were not an adequate substitute for the writ." As a habeas corpus case, Boumediene may well be revolu­ tionary.3 However, Boumediene is more than merely a habeas * Interim Dean and Associate Professor of Law. University of Denver College of Law; Yale Law School. J.D. 1991: Harvard College. A.B. 1987. Thanks to Alan Chen.
    [Show full text]
  • The Standing Doctrine's Dirty Little Secret
    Copyright 2012 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 1 THE STANDING DOCTRINE’S DIRTY LITTLE SECRET Evan Tsen Lee & Josephine Mason Ellis ABSTRACT—For the last forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or altogether eliminate those requirements in many “procedural rights” cases—ones in which a federal statute creates a right to have government follow a particular procedure, including to provide judicial review of agency decisions. This Article asks how best to rationalize this contradiction. After examining several possibilities, we conclude that the best course is to recognize openly that the Case or Controversy Clause of Article III means different things in different types of litigation. In one “tier”—cases where Congress has made it clear that it has created procedural rights that may be vindicated in court without meeting the usual injury, causation, and redressability requirements—the plaintiff should merely be required to show that he or she falls within the “zone of interests” the statute aims to protect. In all other cases—the other “tier”—existing Article III standing requirements would apply. AUTHORS—Evan Tsen Lee is Professor of Law and Associate Dean for Research, University of California, Hastings College of the Law. Josephine Mason Ellis is Law Clerk to the Honorable James L. Dennis, United States Court of Appeals for the Fifth Circuit (2012–2014); J.D., University of California, Hastings College of the Law; B.A., University of California, Berkeley.
    [Show full text]
  • The Supreme Court and the New Equity
    Vanderbilt Law Review Volume 68 | Issue 4 Article 1 5-2015 The uprS eme Court and the New Equity Samuel L. Bray Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Supreme Court of the United States Commons Recommended Citation Samuel L. Bray, The uS preme Court and the New Equity, 68 Vanderbilt Law Review 997 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol68/iss4/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 68 MAY 2015 NUMBER 4 ARTICLES The Supreme Court and the New Equity Samuel L. Bray* The line between law and equity has largely faded away. Even in remedies, where the line persists, the conventional scholarly wisdom favors erasing it. Yet something surprisinghas happened. In a series of cases over the last decade and a half, the U.S. Supreme Court has acted directly contrary to this conventional wisdom. These cases range across many areas of substantive law-from commercial contracts and employee benefits to habeas and immigration, from patents and copyright to environmental law and national security. Throughout these disparate areas, the Court has consistently reinforced the line between legal and equitable remedies, and it has treated equitable remedies as having distinctive powers and limitations. This Article describes and begins to evaluate the Court's new equity cases.
    [Show full text]
  • G:\OSG\Desktop
    No. 08-267 In the Supreme Court of the United States UNITED STATES OF AMERICA, PETITIONER v. JACOB DENEDO ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES PETITION FOR A WRIT OF CERTIORARI GREGORY G. GARRE Acting Solicitor General LOUIS J. PULEO Counsel of Record Col., USMC MATTHEW W. FRIEDRICH Director Acting Assistant Attorney BRIAN K. KELLER General Deputy Director MICHAEL R. DREEBEN Deputy Solicitor General TIMOTHY H. DELGADO Lt., JAGC, USN ERIC D. MILLER Navy-Marine Corps Assistant to the Solicitor Appellate Government General Division JOHN F. DE PUE Department of the Navy Attorney Washington, D.C. 20374 Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 QUESTION PRESENTED Whether an Article I military appellate court has ju- risdiction to entertain a petition for a writ of error co- ram nobis filed by a former service member to review a court-martial conviction that has become final under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq. (I) TABLE OF CONTENTS Page Opinions below........................................ 1 Jurisdiction........................................... 1 Statutes involved...................................... 2 Statement............................................ 2 Reasons for granting the petition........................ 8 A. Collateral review of a final court-martial judgment is not “in aid of” the jurisdiction of a military appellate court.................................. 10 B. Coram nobis review is neither necessary nor appropriate in light of the alternative remedies available to former members of the armed forces.... 17 C. The question presented is important and warrants this Court’s review .............................. 21 Conclusion .......................................... 25 Appendix A — Court of appeals opinion (Mar.
    [Show full text]
  • Baker V. Carr in Context: 1946-1964
    BAKER V. CARR IN CONTEXT: 1946-1964 Stephen Ansolabehere and Samuel Issacharoff1 Introduction Occasionally in all walks of life, law included, there are breakthroughs that have the quality of truth revealed. Not only do such ideas have overwhelming force, but they alter the world in which they operate. In the wake of such breakthroughs, it is difficult to imagine what existed before. Such is the American conception of constitutional democracy before and after the “Reapportionment Revolution” of the 1960s. Although legislative redistricting today is not without its riddle of problems, it is difficult to imagine so bizarre an apportionment scheme as the way legislative power was rationed out in Tennessee, the setting for Baker v. Carr. Tennessee apportioned power through, in Justice Clark’s words, “a crazy quilt without rational basis.”2 Indeed, forty years after Baker, with “one person, one vote” a fundamental principle of our democracy, it may be hard to imagine what all the constitutional fuss was about. Yet the decision in Baker, which had striking immediate impact, marked a profound transformation in American democracy. The man who presided over this transformation, Chief Justice Earl Warren, called Baker “the most important case of [his] tenure on the Court.”3 Perhaps the simplest way to understand the problem is to imagine the role of the legislator faced with the command to reapportion legislative districts after each decennial Census. Shifts in population mean that new areas of a state are likely to emerge as the dominant forces of a legislature. But what if the power to stem the tide were as simple as refusing to reapportion? It happened at the national level when Congress, realizing that the swelling tide of immigrant and industrial workers had moved power to the Northeast and the Midwest, simply refused to reapportion after the 1920 Census.
    [Show full text]
  • Order Blocking Removal from Federal Court Back to State Court
    Case 2:13-cv-05410-NJB-DEK Document 363 Filed 06/27/14 Page 1 of 83 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA BOARD OF COMMISSIONERS OF THE CIVIL ACTION SOUTHEAST LOUISIANA FLOOD PROTECTION AUTHORITY – EAST VERSUS CASE NO. 13-5410 TENNESSEE GAS PIPELINE COMPANY, LLC et al SECTION: “G” (3) ORDER AND REASONS In this litigation, Plaintiff Board of Commissioners of the Southeast Louisiana Flood Protection Authority—East (“Plaintiff”) seeks damages and injunctive relief against ninety-two oil and gas companies whose actions have allegedly caused erosion of coastal lands, leaving south Louisiana increasingly exposed to tropical storms and hurricanes. Plaintiff originally filed suit in Civil District Court for the Parish of Orleans, but Defendants removed the matter to this federal Court. Now pending before the Court is Plaintiff’s “Motion to Remand.”1 Having considered the motion, the memoranda in support, the memoranda in opposition, the statements at oral argument, Plaintiff’s petition, the notice of removal, and the applicable law, the Court will deny the motion. Because the Court’s specific basis for jurisdiction has the potential to reverberate throughout a number of other considerations in this litigation—particularly, Plaintiff’s entitlement, if any, to a jury trial, and choice of law questions—the Court has examined all five bases of jurisdiction raised in Defendants’ Notice of Removal. 1 Rec. Doc. 70. Case 2:13-cv-05410-NJB-DEK Document 363 Filed 06/27/14 Page 2 of 83 I. Background A. Factual Background Plaintiff in
    [Show full text]