Category: Constitutional Law I

Constitutional Law (Samuel) #2: Mootness

In Samuel Berbano’s second of a series of podcasts on justiciability doctrines, we’ll analyze the question of Mootness as it relates to Federal Article III courts.  These courts are bound to take only cases which commentators call a “case or controversy” requirement.  This requirement exists to preserve the integrity of the adversarial system.

The second doctrine addressed is mootness.  An issue that Federal courts declare moot is not justiciable and cannot be decided.  An issue becomes moot when, in the course of litigation, events transpire which deprive one or both parties of a stake in the case.  Similar to playing the card game of Poker, one can’t hope to play a hand if (1) they don’t have money in the pot and a personal stake in the outcome and (2) they’ve folded their hand and don’t want to keep playing.

The DeFunis case shows how an issue can become moot in the course of litigation.  Roe, our second case, shows a case that would normally be considered moot, but falls under one of the four exceptions to the mootness doctrine:

1) “Continuing Harm to Plaintiff”

2) “Voluntary Cessation”

3) “Capable of Repetition, But Evading Review”

4) Class Action Lawsuits

DeFunis v. Odegaard, 416 U.S. 312 (1974)
Roe v. Wade, 410 U.S. 113 (1973)

Constitutional Law (Samuel) #1: Standing

In Samuel Berbano’s first of a series of podcasts on justiciability doctrines, we’ll analyze the question of standing as it relates to Federal Article III courts. These courts are bound to take only cases containing what legal commentators call a “case or controversy” requirement. This requirement exists to preserve the integrity of the adversarial system.

The first justiciability addressed is standing. Plaintiffs have standing when the court finds that there is (I) an legally-recognised harm to the plaintiff, (II) a reasonable causal connexion between the injury to the plaintiff and the complained-of conduct of the defendant, and (III) a likelihood that an affirmative ruling will vindicate the rights of the plaintiff.

Cases include issues of what constitutes a harm, when third parties suffer harm, questions of taxpayer standing, and a hypothetical about punching one’s younger brother in the face. No little brothers were harmed in the making of this podcast.

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Warth v. Seldin, 422 U.S. 490 (1975)
Com. of Massachusetts v. Mellon, 262 U.S. 447 (1923)
Flast v. Cohen, 392 U.S. 83 (1968)

Constitutional Law I #41: Sexual Orientation

One of the developing areas of constitutional law concerns the protection granted to sexual orientation. We will discuss in depth a case striking an “equal rights, not special rights” state constitutional amendment. Additionally, we will compare sexual orientation to existing suspect classes.

Romer v. Evans

Constitutional Law I #40: Gender Discrimination III

We will conclude our discussion of gender discrimination by examining military policies, legislation intended to be beneficial to women, and a case involving the unique circumstances that are pregnancy.

Califano v. Goldfarb
Califano v. Webster
Nguyen v. Immigration and Naturalization Service

Constitutional Law I #39: Gender Discrimination II

Race and sex are similar in many respects, yet are different in other respects. We will compare and contrast the two protected statuses, then walk through a recent Supreme Court case concerning the Virginia Military Institute. That case will solidify (and possibly heighten) the quasi-suspect / intermediate standard of review.

United States v. Virginia

Constitutional Law I #38: Gender Discrimination I

We now transition from race to gender. We will begin by looking at the history and intent of the 14th Amendment as it relates to gender. We will then examine the beginning of a heightened standard of review in regards to gender discrimination.

Bradwell v. Illinois
Reed v. Reed
Frontiero v. Richardson

Constitutional Law I #37: Affirmative Action II

We now return to Grutter v. Bollinger, the University of Michigan Law School affirmative action case. (Please see News and Views #3 for additional treatment of the case.) Along the way we will discuss formal vs. substantive equality, as well as group rights vs.individual rights.

Grutter v. Bollinger

Constitutional Law I #35: Race-Based Regulation II

We continue our discussion of race-based regulation. A statute banning inter-racial marriage will be struck, a race-preferring custody law will meet a similar fate, while a facially neutral test with disproportionate effects will survive. Note that the first two cases have significant applicability to the current debates regarding homosexuality.

Loving v. Virginia
Palmore v. Sidoti
Washington v. Davis