Justiciability, federalism, and the administrative state

Zachary David Clopton*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

4 Scopus citations

Abstract

Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the "judicial power of the United States," legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible. This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, caseor- controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with "new new federalist" accounts, this Article suggests another avenue for federal-state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.

Original languageEnglish (US)
Pages (from-to)1431-1468
Number of pages38
JournalCornell Law Review
Volume103
Issue number6
StatePublished - 2018

Funding

TWU’s Septuagint Institute fellows were directlyinvolved in NETS, and authored the introductionsand translationsofthe first four booksofthe Pentateuch. To markthe publicationofNETS in2007, the Septuagint Institute hosted the largest of the conferences that it has sponsored to date. Over three daysinSeptember 2008,scholarsfromEngland, Germany, France, the U.S., and Canada presented papers on the theme, “Septuagint Translation(s): Retrospect and Prospect.” Translators involvedinthe publicationofFrench, German, and Englishtranslations ofthe Septuagint participated inthe conference. Funding to host this event was gratefully received fromthe Social Sciences and Humanities Research Council of Canada and the Priscilla and Stanford Reid Trust. A volume of the conference proceedings was edited by Robert Hiebert and published in 2010.33

ASJC Scopus subject areas

  • Law

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