Law Commons^™

Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank

Faculty Articles and Other Publications

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it …

Does United States V. Windsor (The Doma Case) Open The Door To Congressional Standing Rights?, Bradford Mank

Faculty Articles and Other Publications

In rare cases, a President refuses to defend a statute he believes is unconstitutional. The law is unclear whether Congress or either House of Congress has Article III standing to defend a statute that the President refuses to defend. In United States v. Windsor, the Supreme Court in 2013 addressed the constitutionality of the Defense of Marriage Act (DOMA). The Obama Administration took the middle position of not defending DOMA, but still enforcing it despite its view that the statute was unconstitutional to assist federal courts in reviewing the constitutionality of the statute. It was unclear whether an appeal was …

The Long-Term Implications Of Gonzaga V. Doe, Bradford Mank

Faculty Articles and Other Publications

State and local governments are often responsible for disbursing federal medical, educational, and welfare benefits. What happens when they deny or revoke them unfairly? Some recipients have used 42 U.S.C. § 1983 as a way to enforce the underlying statutes. The Supreme Court decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), made this more difficult. In doing so, the Court adopted stringent rules for the use of § 1983 to enforce any federal laws, including the nation’s civil rights laws.

Retaliation And The Reasonable Person, Sandra F. Sperino

Faculty Articles and Other Publications

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

Prudential Standing Doctrine Abolished Or Waiting For A Comeback?: Lexmark International, Inc. V. Static Control Components, Inc., Bradford Mank

Faculty Articles and Other Publications

In the Supreme Court’s 2014 decision in Lexmark International, Inc. v. Static Control Components, Inc., Justice Scalia writing for a unanimous Court partially achieved his goal of abolishing the prudential standing doctrine. First, the Court concluded that the zone of interests test concerns whether Congress has authorized a particular plaintiff to sue and is not a prudential standing question despite several Court decisions classifying it as such. However, there is a continuing controversy in the D.C. Circuit about applying the test to suits by competitors, especially in environmental cases. The better approach is to allow competitor standing in at least …