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The Requirement of a Real Interest

The Requirement of a Real Interest

Almost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.”436 A party cannot maintain a suit “for a mere declaration in the air.”437 In Texas v. ICC,438 the State attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.”439 And in Ashwander v. TVA,440 the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company. “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining.”441

436 Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).

437 Giles v. Harris, 189 U.S. 475, 486 (1903).

438 258 U.S. 158 (1922).

439 258 U.S. at 162.

440 297 U.S. 288 (1936).

441 297 U.S. at 324. Chief Justice Hughes cited New York v. Illinois, 274 U.S. 488 (1927), in which the Court dismissed as presenting abstract questions a suit about the possible effects of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future, and Arizona v. California, 283 U.S. 423 (1931), in which it was held that claims based merely upon assumed potential invasions of rights were insufficient to warrant judicial intervention. See also Massachusetts v. Mellon, 262 U.S. 447, 484-485 (1923); New Jersey v. Sargent, 269 U.S. 328, 338-340 (1926); Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 76 (1867).

Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,442 an omnibus attack on the constitutionality of the Hatch Act prohibitions on political activities by governmental employees. With one exception, none of the plaintiffs had violated the Act, though they stated they desired to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for “concrete legal issues, presented in actual cases, not abstractions”, and seeing the suit as really an attack on the political expediency of the Act.443

Advisory Opinions.—In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution.444 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: “These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments.”445 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a “firm and unvarying practice....”446 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it;447 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation;448 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.449 Other Justices have individually served as advisers and confidants of Presidents in one degree or another.450

442 330 U.S. 75 (1947).

443 330 U.S. at 89-91. Justices Black and Douglas dissented, contending that the controversy was justiciable. Justice Douglas could not agree that the plaintiffs should have to violate the act and lose their jobs in order to test their rights. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), the concerns expressed in Mitchell were largely ignored as the Court reached the merits in an anticipatory attack on the Act. Compare Epperson v. Arkansas, 393 U.S. 97 (1968).

444 1 C. Warren, supra at 108-111. The full text of the exchange appears in 3 CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY 486-489 (H. Johnston ed., 1893).

445 Jay Papers at 488.

446 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948).

447 See supra.

448 1 C. Warren, supra at 595-597.

449 Reorganization of the Judiciary: Hearings on S. 1392 Before the Senate Judiciary Committee, 75th Congress, 1st sess. (1937), pt. 3, 491. See also Chief Justice Taney’s private advisory opinion to the Secretary of the Treasury that a tax levied on the salaries of federal judges violated the Constitution. S. TYLER, MEMOIRS OF ROGER B. TANEY 432-435 (1876).

450 E.g., Acheson, Removing the Shadow Cast on the Courts, 55 A.B.A.J. 919 (1969); Jaffe, Professors and Judges as Advisors to Government: Reflections on the Roosevelt-Frankfurter Relationship, 83 HARV. L. REV. 366 (1969). The issue has lately earned the attention of the Supreme Court, Mistretta v. United States, 488 U.S. 361, 397-408 (1989) (citing examples and detailed secondary sources), when it upheld the congressionally-authorized service of federal judges on the Sentencing Commission.

Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: “To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.”451 The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,452 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of Government,453 or where the issues involved were abstract or contingent.454

Declaratory Judgments.—Rigid emphasis upon such elements of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.455 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,456 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.457 Quickly tested, the Act was unanimously sustained.458 “The principle involved in this form of procedure,” the House Report said, “is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.”459 Said the Senate Report: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.”460

The 1934 Act provided that “[i]n cases of actual controversy” federal courts could “declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed....”461 Upholding the Act, the Court said: “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.”462 Finding that the issue in the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.463

451 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).

452 Muskrat v. United States, 219 U.S. 346 (1911).

453 United States v. Ferreira, 54 U.S. (13 How.) 40 (1852).

454 United Public Workers v. Mitchell, 330 U.S. 75 (1947).

455 Cf. Willing v. Chicago Auditorium Ass’n, 277 U.S. 274 (1928).

456 Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123 (1927); Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1963). Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of its license agreement before it can seek a declaratory judgment that the underlying patent is invalid, unenforceable, or not infringed,” id. at 767).

457 48 Stat. 955, as amended, 28 U.S.C. §§ 2201-2202.

458 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) (cited with approval in Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126 (2007)).

459 H. Rep. No. 1264, 73d Congress, 2d Sess. (1934), 2.

460 S. Rep. No. 1005, 73d Congress, 2d Sess. (1934), 2.

461 48 Stat. 955. The language remains quite similar. 28 U.S.C. § 2201.

462 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-240 (1937),

463 300 U.S. at 242-44.

It has insistently been maintained by the Court that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.”464 As Justice Douglas has written: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”465 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.466 Utilization of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,467 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.468 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.469 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.470

464 Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).

465 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

466 Brillhart v. Excess Ins. Co. of America, 316 U.S. 491, 494 (1942); Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 243 (1952); Public Affairs Associates v. Rickover, 369 U.S. 111, 112 (1962). See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).

467 An exception “with respect to Federal taxes” was added in 1935. 49 Stat. 1027. The Tax Injunction Act of 1937, 50 Stat. 738, U.S.C. § 1341, prohibited federal injunctive relief directed at state taxes but said nothing about declaratory relief. It was held to apply, however, in California v. Grace Brethren Church, 457 U.S. 393 (1982). Earlier, in Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293 (1943), the Court had reserved the issue but held that considerations of comity should preclude federal courts from giving declaratory relief in such cases. Cf. Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981).

As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.471 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,472 in which the relevance to declaratory judgments of the Dombrowski v. Pfister473 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”474 Escape from that duty might be found only in “narrow circumstances,” such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially-developed doctrine that a litigant must show “special circumstances” to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.”475 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed476 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,477 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.478

468 E.g., Ashwander v. TVA, 297 U.S. 288 (1936); Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938); United Public Workers v. Mitchell, 330 U.S. 75 (1947); Eccles v. Peoples Bank, 333 U.S. 426 (1948); Rescue Army v. Municipal Court, 331 U.S. 549, 572-573 (1947).

469 United Public Workers v. Mitchell, 330 U.S. 75 (1947); Poe v. Ullman, 367 U.S. 497 (1961); Altvater v. Freeman, 319 U.S. 359 (1943); International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952).

470 E.g., Currin v. Wallace, 306 U.S. 1 (1939); Perkins v. Elg, 307 U.S. 325 (1939); Ashwander v. TVA, 297 U.S. 288 (1936); Evers v. Dwyer, 358 U.S. 202 (1958).

471 E.g., Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Turner v. City of Memphis, 369 U.S. 350 (1962); Powell v. McCormack, 395 U.S. 486 (1969). But see Golden v. Zwickler, 394 U.S. 103 (1969).

472 389 U.S. 241 (1967).

473 380 U.S. 479 (1965).

474 Zwickler v. Koota, 389 U.S. 241, 248 (1967).

Ripeness.—Just as standing historically has concerned who may bring an action in federal court, the ripeness doctrine concerns when it may be brought. Formerly, it was a wholly constitutional principle requiring a determination that the events bearing on the substantive issue have happened or are sufficiently certain to occur so as to make adjudication necessary and so as to assure that the issues are sufficiently defined to permit intelligent resolution; the focus was on the harm to the rights claimed rather than on the harm to the plaintiff that gave him standing to bring the action,479 although, to be sure, in most cases the harm is the same. But in liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts480 and conflated standing and ripeness considerations.481

The early cases generally required potential plaintiffs to expose themselves to possibly irreparable injury in order to invoke federal judicial review. Thus, in United Public Workers v. Mitchell,482 government employees alleged that they wished to engage in various political activities and that they were deterred from their desires by the Hatch Act prohibitions on political activities. As to all but one plaintiff, who had himself actually engaged in forbidden activity, the Court held itself unable to adjudicate because the plaintiffs were not threatened with “actual interference” with their interests. The Justices viewed the threat to plaintiffs’ rights as hypothetical and refused to speculate about the kinds of political activity they might engage in or the Government’s response to it. “No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations.”483 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United States were denied a request for an interpretation of the immigration laws that they would not be treated on their return as excludable aliens entering the United States for the first time, or alternatively, for a ruling that the laws so interpreted would be unconstitutional. The resident aliens had not left the country and attempted to return, although other alien workers had gone and been denied reentry, and the immigration authorities were on record as intending to enforce the laws as they construed them.484 Of course, the Court was not entirely consistent in applying the doctrine.485

475 Zwickler v. Koota, 389 U.S. 241, 254 (1967).

476 Samuels v. Mackell, 401 U.S. 66 (1971). The case and its companion, Younger v. Harris, 401 U.S. 37 (1971), substantially undercut much of the Dombrowski language and much of Zwickler was downgraded.

477 Hicks v. Miranda, 422 U.S. 332, 349 (1975).

478 Steffel v. Thompson, 415 U.S. 452 (1974). In cases covered by Steffel, the federal court may issue preliminary or permanent injunctions to protect its judgments, without satisfying the Younger tests. Doran v. Salem Inn, 422 U.S. 922, 930-931 (1975); Wooley v. Maynard, 430 U.S. 705, 712 (1977).

479 United Public Workers v. Mitchell, 330 U.S. 75 (1947); International Long-shoremen’s Union v. Boyd, 347 U.S. 222 (1954). For recent examples of lack of ripeness, see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998); Texas v. United States, 523 U.S. 296 (1998).

480 Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 (1974) (certainty of injury a constitutional limitation, factual adequacy element a prudential one).

481 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81-82 (1978) (that plaintiffs suffer injury-in-fact and such injury would be redressed by granting requested relief satisfies Article III ripeness requirement; prudential element satisfied by determination that Court would not be better prepared to render a decision later than now). But compare Renne v. Geary, 501 U.S. 312 (1991).

It remains good general law that pre-enforcement challenges to criminal and regulatory legislation will often be unripe for judicial consideration because of uncertainty of enforcement,486 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it,487 or because the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests.488 But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute’s operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief.489 Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues.490

482 330 U.S. 75 (1947).

483 330 U.S. at 90. In CSC v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), without discussing ripeness, the Court decided on the merits anticipatory attacks on the Hatch Act. Plaintiffs had, however, alleged a variety of more concrete infringements upon their desires and intentions than the UPW plaintiffs had.

484 International Longshoremen’s Union v. Boyd, 347 U.S. 222 (1954). See also Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); Public Service Comm’n v. Wycoff Co., 344 U.S. 237 (1952); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972).

485 In Adler v. Board of Education, 342 U.S. 485 (1952), without discussing ripeness, the Court decided on the merits a suit about a state law requiring dismissal of teachers advocating violent overthrow of the government, over a strong dissent arguing the case was indistinguishable from Mitchell. Id. at 504 (Justice Frankfurter dissenting). In Cramp v. Board of Public Instruction, 368 U.S. 278 (1961), a state employee was permitted to attack a non-Communist oath, although he alleged he believed he could take the oath in good faith and could prevail if prosecuted, because the oath was so vague as to subject plaintiff to the “risk of unfair prosecution and the potential deterrence of constitutionally protected conduct.” Id. at 283-84. See also Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967).

486 E.g., Poe v. Ullman, 367 U.S. 497 (1961) (no adjudication of challenge to law barring use of contraceptives because in 80 years of the statute’s existence the State had never instituted a prosecution). But compare Epperson v. Arkansas, 393 U.S. 97 (1987) (merits reached in absence of enforcement and fair indication State would not enforce it); Vance v. Amusement Co., 445 U.S. 308 (1980) (reaching merits, although State asserted law would not be used, although local prosecutor had so threatened; no discussion of ripeness, but dissent relied on Poe, id. at 317-18).

487 E.g., Younger v. Harris, 401 U.S. 37, 41-42 (1971); Boyle v. Landry, 401 U.S. 77 (1971); Golden v. Zwickler, 394 U.S. 103 (1969); O’Shea v. Littleton, 414 U.S. 488 (1974); Spomer v. Littleton, 414 U.S. 514 (1974); Rizzo v. Goode, 423 U.S. 362 (1976). In the context of the ripeness to challenge of agency regulations, as to which there is a presumption of available judicial remedies, the Court has long insisted that federal courts should be reluctant to review such regulations unless the effects of administrative action challenged have been felt in a concrete way by the challenging parties, i.e., unless the controversy is “ripe.” See, of the older cases, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More recent cases include Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871, 891 (1990).

488 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974); Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 294-297 (1981); Renne v. Geary, 501 U.S. 312, 320-323 (1991).

489 Steffel v. Thompson, 415 U.S. 452 (1974); Wooley v. Maynard, 430 U.S. 705, 707-708, 710 (1977); Babbitt v. United Farm Workers, 442 U.S. 289, 297-305 (1979) (finding some claims ripe, others not). Compare Doe v. Bolton, 410 U.S. 179, 188-189 (1973), with Roe v. Wade, 410 U.S. 113, 127-128 (1973). See also Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Colautti v. Franklin, 439 U.S. 379 (1979).

490 Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-148 (1974) (holding some but not all the claims ripe). See also Goldwater v. Carter, 444 U.S. 996, 997 (Justice Powell concurring) (parties had not put themselves in opposition).

Of considerable uncertainty in the law of ripeness is the Duke Power case, in which the Court held ripe for decision on the merits a challenge to a federal law limiting liability for nuclear accidents at nuclear power plants, on the basis that because plaintiffs had sustained injury-in-fact and had standing the Article III requisite of ripeness was satisfied and no additional facts arising out of the occurrence of the claimed harm would enable the court better to decide the issues.491 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.

491 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 81-82 (1978). The injury giving standing to plaintiffs was the environmental harm arising from the plant’s routine operation; the injury to their legal rights was alleged to be the harm caused by the limitation of liability in the event of a nuclear accident. The standing injury had occurred, the ripeness injury was conjectural and speculative and might never occur. See id. at 102 (Justice Stevens concurring in the result). It is evident on the face of the opinion and expressly stated by the objecting Justices that the Court utilized its standing/ripeness analyses in order to reach the merits, so as to remove the constitutional cloud cast upon the federal law by the district court decision. Id. at 95, 103 (Justices Rehnquist and Stevens concurring in the result).

Mootness.—It may be that a case presenting all the attributes necessary for federal court litigation will at some point lose some attribute of justiciability, will, in other words, become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated.492 “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.... Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed, or when review was obtained in the Court of Appeals.... The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”493 Since, with the advent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,494 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than some additional older concepts.495

492 E.g., United States v. Munsingwear, 340 U.S. 36 (1950); Golden v. Zwickler, 394 U.S. 103, 108 (1969); SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972); Roe v. Wade, 410 U.S. 113, 125 (1973); Sosna v. Iowa, 419 U.S. 393, 398-399 (1975); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980), and id. at 411 (Justice Powell dissenting); Burke v. Barnes, 479 U.S. 361, 363 (1987); Honig v. Doe, 484 U.S. 305, 317 (1988); Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990). Munsingwear had long stood for the proposition that the appropriate practice of the Court in a civil case that had become moot while on the way to the Court or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. But, in U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), the Court held that when mootness occurs because the parties have reached a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would be served by vacatur.

493 Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990) (internal citations omitted). The Court’s emphasis upon mootness as a constitutional rule mandated by Article III is long stated in the cases. E.g., Liner v. Jafco, 375 U.S. 301, 306 n.3 (1964); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974); Sibron v. New York, 392 U.S. 40, 57 (1968). See Honig v. Doe, 484 U.S. 305, 317 (1988), and id. at 332 (Justice Scalia dissenting). But compare Franks v. Bowman Transp. Co., 424 U.S. 747, 756 n.8 (1976) (referring to mootness as presenting policy rather than constitutional considerations). If this foundation exists, it is hard to explain the exceptions, which partake of practical reasoning. In any event, Chief Justice Rehnquist has argued that the mootness doctrine is not constitutionally based, or not sufficiently based only on Article III, so that the Court should not dismiss cases that have become moot after the Court has taken them for review. Id. at 329 (concurring). Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993).

494 But see Steffel v. Thompson, 415 U.S. 452, 470-72 (1974); id. at 477 (Justice White concurring), 482 n.3 (Justice Rehnquist concurring) (on res judicata effect in state court in subsequent prosecution). In any event, the statute authorizes the federal court to grant “[f]urther necessary or proper relief” which could include enjoining state prosecutions.

495 Award of process and execution are no longer essential to the concept of judicial power. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

Cases may become moot because of a change in the law,496 or in the status of the parties,497 or because of some act of one of the parties which dissolves the controversy.498 But the Court has developed several exceptions, which operate to prevent many of the cases in which mootness is alleged from being in law moot. Thus, in criminal cases, although the sentence of the convicted appellant has been served, the case “is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.”499 The “mere possibility” of such a consequence, even a “remote” one, is enough to find that one who has served his sentence has retained the requisite personal stake giving his case “an adversary cast and making it justiciable.”500 This exception has its counterpart in civil litigation in which a lower court judgment may still have certain present or future adverse effects on the challenging party.501

496 E.g., Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1852); United States v. Alaska Steamship Co., 253 U.S. 113 (1920); Hall v. Beals, 396 U.S. 45 (1969); Sanks v. Georgia, 401 U.S. 144 (1971); Richardson v. Wright, 405 U.S. 208 (1972); Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972); Lewis v. Continental Bank Corp., 494 U.S. 481 (1990). But compare City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-289 (1982) (case not mooted by repeal of ordinance, since City made clear its intention to reenact it if free from lower court judgment). Following Aladdin’s Castle, the Court in Northeastern Fla. Ch. of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 660-63 (1993), held that when a municipal ordinance is repealed but replaced by one sufficiently similar so that the challenged action in effect continues, the case is not moot. But see id. at 669 (Justice O’Connor dissenting) (modification of ordinance more significant and case is mooted).

497 Atherton Mills v. Johnston, 259 U.S. 13 (1922) (in challenge to laws regulating labor of youths 14 to 16, Court held case two-and-one-half years after argument and dismissed as moot since certainly none of the challengers was now in the age bracket); Golden v. Zwickler, 394 U.S. 103 (1969); DeFunis v. Odegaard, 416 U.S. 312 (1974); Dove v. United States, 423 U.S. 325 (1976); Lane v. Williams, 455 U.S. 624 (1982). Compare County of Los Angeles v. Davis, 440 U.S. 625 (1979), with Vitek v. Jones, 445 U.S. 480 (1980). In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), a state employee attacking an English-only work requirement had standing at the time she brought the suit, but she resigned following a decision in the trial court, thus mooting the case before it was taken to the appellate court, which should not have acted to hear and decide it.

498 E.g., Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919); Oil Workers Local 8-6 v. Missouri, 361 U.S. 363 (1960); A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961); Preiser v. Newkirk, 422 U.S. 395 (1975); County of Los Angeles v. Davis, 440 U.S. 625 (1979); Alvarez v. Smith, 130 S. Ct. 576 (2009).

499 Sibron v. New York, 395 U.S. 40, 50-58 (1968). But compare Spencer v. Kemna, 523 U.S. 1 (1998).

500 Benton v. Maryland, 395 U.S. 784, 790-791 (1969). The cases have progressed from leaning toward mootness to leaning strongly against. E.g., St. Pierre v. United States, 319 U.S. 41 (1943); Fiswick v. United States, 329 U.S. 211 (1946); United States v. Morgan, 346 U.S. 502 (1954); Pollard v. United States, 352 U.S. 354 (1957); Ginsberg v. New York, 390 U.S. 629, 633-634 n. 2 (1968); Sibron v. New York, 392 U.S. 40, 49-58 (1968); but see Lane v. Williams, 455 U.S. 624 (1982). The exception permits review at the instance of the prosecution as well as defendant. Pennsylvania v. Mimms, 434 U.S. 106 (1977). When a convicted defendant dies while his case is on direct review, the Court’s present practice is to dismiss the petition for certiorari. Dove v. United States, 423 U.S. 325 (1976), overruling Durham v. United States, 401 U.S. 481 (1971).

501 Southern Pacific Terminal Co. v. ICC, 219 U.S. 433, 452 (1911); Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115 (1974) (holding that expiration of strike did not moot employer challenge to state regulations entitling strikers to state welfare assistance since the consequences of the regulations would continue).

A second exception, the “voluntary cessation” doctrine, focuses on whether challenged conduct which has lapsed or the utilization of a statute which has been superseded is likely to recur.502 Thus, cessation of the challenged activity by the voluntary choice of the person engaging in it, especially if he contends that he was properly engaging in it, will moot the case only if it can be said with assurance “that ‘there is no reasonable expectation that the wrong will be repeated.”’503 Otherwise, “[t]he defendant is free to return to his old ways” and this fact would be enough to prevent mootness because of the “public interest in having the legality of the practices settled.”504

502 United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 (1897); Walling v. Helmerich & Payne, 323 U.S. 37 (1944); Porter v. Lee, 328 U.S. 246 (1946); United States v. W.T. Grant Co., 345 U.S. 629 (1953); Gray v. Sanders, 372 U.S. 368 (1963); United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 202-04 (1969); DeFunis v. Odegaard, 416 U.S. 312, 318 (1974); County of Los Angeles v. Davis, 440 U.S. 625, 631-34 (1979), and id. at 641-46 (Justice Powell dissenting); Vitek v. Jones, 445 U.S. 480, 486-487 (1980), and id. at 500-01 (Justice Stewart dissenting); Princeton University v. Schmidt, 455 U.S. 100 (1982); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 288-289 (1982).

503 United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (quoting United States v. Aluminum Co. of America, 148 F.2d 416, 448 (2d. Cir. 1945)).

504 United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But see A.L. Mechling Barge Lines v. United States, 368 U.S. 324 (1961).

Still a third exception concerns the ability to challenge short-term conduct which may recur in the future, which has been denominated as disputes “capable of repetition, yet evading review.”505 Thus, in cases in which (1) the challenged action is too short in its duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again, mootness will not be found when the complained-of conduct ends.506 The imposition of short sentences in criminal cases,507 the issuance of injunctions to expire in a brief period,508 and the short-term factual context of certain events, such as elections509 or pregnancies,510 are all instances in which this exception is frequently invoked.

An interesting and potentially significant liberalization of the law of mootness, perhaps as part of a continuing circumstances exception, is occurring in the context of class action litigation. It is now clearly established that, when the controversy becomes moot as to the plaintiff in a certified class action, it still remains alive for the class he represents so long as an adversary relationship sufficient to constitute a live controversy between the class members and the other party exists.511 The Court was closely divided, however, with respect to the right of the named party, when the substantive controversy became moot as to him, to appeal as error the denial of a motion to certify the class which he sought to represent and which he still sought to represent. The Court held that in the class action setting there are two aspects of the Article III mootness question, the existence of a live controversy and the existence of a personal stake in the outcome for the named class representative.512 Finding a live controversy, the Court determined that the named plaintiff retained a sufficient interest, “a personal stake,” in his claimed right to represent the class in order to satisfy the “imperatives of a dispute capable of judicial resolution;” that is, his continuing interest adequately assures that “sharply presented issues” are placed before the court “in a concrete factual setting” with “self-interested parties vigorously advocating opposing positions.”513

505 Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

506 Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Murphy v. Hunt, 455 U.S. 478, 482 (1982). See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-26 (1974), and id. at 130-32 (Justice Stewart dissenting), Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167, 189-91 (2000),. The degree of expectation or likelihood that the issue will recur has frequently divided the Court. Compare Murphy v. Hunt, with Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); compare Honig v. Doe, 484 U.S. 305, 318-23 (1988), with id. at 332 (Justice Scalia dissenting).

507 Sibron v. New York, 392 U.S. 40, 49-58 (1968). See Gerstein v. Pugh, 420 U.S. 103 (1975).

508 Carroll v. President & Commr’s of Princess Anne, 393 U.S. 175 (1968). See Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976) (short-term court order restricting press coverage).

509 E.g., Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5 (1973); Storer v. Brown, 415 U.S. 724, 737 n.8 (1974). Compare Mills v. Green, 159 U.S. 651 (1895); Ray v. Blair, 343 U.S. 154 (1952).

510 Roe v. Wade, 410 U.S. 113, 124-125 (1973).

511 Sosna v. Iowa, 419 U.S. 393 (1975); Franks v. Bowman Transp. Co., 424 U.S. 747, 752-757 (1976). A suit which proceeds as a class action but without formal certification may not receive the benefits of this rule. Board of School Commr’s v. Jacobs, 420 U.S. 128 (1975). See also Weinstein v. Bradford, 423 U.S. 147 (1975); Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 430 (1976). But see the characterization of these cases in United States Parole Comm’n v. Geraghty, 445 U.S. 388, 400 n. 7 (1980). Mootness is not necessarily avoided in properly certified cases, but the standards of determination are unclear. See Kremens v. Bartley, 431 U.S. 119 (1977).

512 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980).

513 445 U.S. at 403. Justices Powell, Stewart, Rehnquist, and Chief Justice Burger dissented, id. at 409, arguing there could be no Article III personal stake in a procedural decision separate from the outcome of the case. In Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1980), in an opinion by Chief Justice Burger, the Court held that a class action was not mooted when defendant tendered to the named plaintiffs the full amount of recovery they had individually asked for and could hope to retain. Plaintiffs’ interest in shifting part of the share of costs of litigation to those who would share in its benefits if the class were certified was deemed to be a sufficient “personal stake”, although the value of this interest was at best speculative.

The immediate effect of the decision is that litigation in which class actions are properly certified or in which they should have been certified will rarely ever be mooted if the named plaintiff (or in effect his attorney) chooses to pursue the matter, even though the named plaintiff can no longer obtain any personal relief from the decision sought.514 Of much greater potential significance is the possible extension of the weakening of the “personal stake” requirement in other areas, such as the representation of third-party claims in non-class actions and the initiation of some litigation in the form of a “private attorneys general” pursuit of adjudication.515 It may be that the evolution in this area will be confined to the class action context, but cabining of a “flexible” doctrine of standing may be difficult.516

514 The named plaintiff must still satisfy the class action requirement of adequacy of representation. United States Parole Comm’n v. Geraghty, 445 U.S. 388, 405-407 (1980). On the implications of Geraghty, which the Court has not returned to, see Hart & Wechsler, supra at 225-230.

515 Geraghty, 445 U.S. at 404 & n.11.

Retroactivity Versus Prospectivity.—One of the distinguishing features of an advisory opinion is that it lays down a rule to be applied to future cases, much as does legislation generally. It should therefore follow that an Article III court could not decide purely prospective cases, cases which do not govern the rights and disabilities of the parties to the cases.517 The Court asserted that this principle is true, while applying it only to give retroactive effect to the parties to the immediate case.518 Yet, occasionally, the Court did not apply its holding to the parties before it,519 and in a series of cases beginning in the mid-1960s it became embroiled in attempts to limit the retroactive effect of its—primarily but not exclusively520 —constitutional-criminal law decisions. The results have been confusing and unpredictable.521

Prior to 1965, “both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this Court . . . subject to [certain] limited exceptions.”522 Statutory and judge-made law have consequences, at least to the extent that people must rely on them in making decisions and shaping their conduct. Therefore, the Court was moved to recognize that there should be a reconciling of constitutional interests reflected in a new rule of law with reliance interests founded upon the old.523 In both criminal and civil cases, however, the Court’s discretion to do so has been constrained by later decisions.

516 445 U.S. at 419-24 (Justice Powell dissenting).

517 For a masterful discussion of the issue in both criminal and civil contexts, see Fallon & Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731 (1991).

518 Stovall v. Denno, 388 U.S. 293, 301 (1967).

519 England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 422 (1964); James v. United States, 366 U.S. 213 (1961). See also Morrissey v. Brewer, 408 U.S. 471, 490 (1972).

520 Noncriminal constitutional cases included Lemon v. Kurtzman, 411 U.S. 192 (1973); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); Cipriano v. City of Houma, 395 U.S. 701 (1969). Indeed, in Buckley v. Valeo, 424 U.S. 1 (1976), and Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982), the Court postponed the effectiveness of its decision for a period during which Congress could repair the flaws in the statute. Noncriminal, nonconstitutional cases include Chevron Oil Co. v. Huson, 404 U.S. 97 (1971); Allen v. State Board of Elections, 393 U.S. 544 (1969); Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481 (1968); Simpson v. Union Oil Co., 377 U.S. 13 (1964).

521 Because of shifting coalitions of Justices, Justice Harlan complained, the course of retroactivity decisions “became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” Mackey v. United States, 401 U.S. 667, 676 (1971) (separate opinion).

522 Robinson v. Neil, 409 U.S. 505, 507 (1973). The older rule of retroactivity derived from the Blackstonian notion “that the duty of the court was not to ‘pronounce a new law, but to maintain and expound the old one.”’ Linkletter v. Walker, 381 U.S. 618, 622-623 (1965) (quoting 1 W. Blackstone, Commentaries *69).

523 Lemon v. Kurtzman, 411 U.S. 192, 198-199 (1973).

When in the 1960s the Court began its expansion of the Bill of Rights and applied the rulings to the States, a necessity arose to determine the application of the rulings to criminal defendants who had exhausted all direct appeals but could still resort to habeas corpus, to those who had been convicted but still were on direct appeal, and to those who had allegedly engaged in conduct but who had not gone to trial. At first, the Court drew the line at cases in which judgments of conviction were not yet final, so that all persons in those situations obtained retrospective use of decisions,524 but the Court then promulgated standards for a balancing process that resulted in different degrees of retroactivity in different cases.525 Generally, in cases in which the Court declared a rule which was “a clear break with the past,” it denied retroactivity to all defendants, with the sometime exception of the appellant himself.526 With respect to certain cases in which a new rule was intended to overcome an impairment of the truth-finding function of a criminal trial527 or to cases in which the Court found that a constitutional doctrine barred the conviction or punishment of someone,528 full retroactivity, even to habeas claimants, was the rule. Justice Harlan strongly argued that the Court should sweep away its confusing balancing rules and hold that all defendants whose cases are still pending on direct appeal at the time of a law-changing decision should be entitled to invoke the new rule, but that no habeas claimant should be entitled to benefit.529

The Court has now drawn a sharp distinction between criminal cases pending on direct review and cases pending on collateral review. For cases on direct review, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”530 Justice Harlan’s habeas approach was then adopted by a plurality in Teague v. Lane531 and then by the Court in Penry v. Lynaugh.532 Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that “new rules” of constitutional interpretation, those that break new ground or impose a new obligation on the States or the Federal Government, announced after a defendant’s conviction has become final, will not be applied.* “A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”32 For such habeas cases, a “new rule” is defined very broadly to include interpretations that are a logical outgrowth or application of an earlier rule unless the result was “dictated” by that precedent.533 The only exceptions are for decisions placing certain conduct or defendants beyond the reach of the criminal law, and for decisions recognizing a fundamental procedural right “without which the likelihood of an accurate conviction is seriously diminished.”534

524 Linkletter v. Walker, 381 U.S. 618 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966).

525 Johnson v. New Jersey, 384 U.S. 719 (1966); Stovall v. Denno, 388 U.S. 293 (1967); Adams v. Illinois, 405 U.S. 278 (1972). Stovall, 388 U.S. at 297.

526 Desist v. United States, 394 U.S. 224, 248 (1969); United States v. Peltier, 422 U.S. 531 (1975); Brown v. Louisiana, 447 U.S. 323, 335-336 (1980) (plurality opinion); Michigan v. Payne, 412 U.S. 47, 55 (1973); United States v. Johnson, 457 U.S. 537, 549-550, 551-552 (1982).

527 Williams v. United States, 401 U.S. 646, 653 (1971) (plurality opinion); Brown v. Louisiana, 447 U.S. 323, 328-330 (1980) (plurality opinion); Hankerson v. North Carolina, 432 U.S. 233, 243 (1977).

528 United States v. United States Coin & Currency, 401 U.S. 715, 724 (1971); Moore v. Illinois, 408 U.S. 786, 800 (1972); Robinson v. Neil, 409 U.S. 505, 509 (1973).

529 Mackey v. United States, 401 U.S. 667, 675 (1971) (separate opinion); Desist v. United States, 394 U.S. 244, 256 (1969) (dissenting). Justice Powell has also strongly supported the proposed rule. Hankerson v. North Carolina, 432 U.S. 233, 246-248 (1977) (concurring in judgment); Brown v. Louisiana, 447 U.S. 323, 337 (1980) (concurring in judgment).

* The approach in state collateral review proceedings, however, may be different. The Court has indicated that the general rule regarding denial of retroactive application of “new rules” in federal collateral proceeding was principally based on an interpretation of federal statutory law. State collateral review of cases brought under state law may be more generous to the defendant. Danforth v. Minnesota, 128 S. Ct. 1029 (2008).

32 Whorton v. Bockting, 549 U.S. 406, 416 (2007).

530 Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (cited with approval in Whorton v. Bockting, 549 U.S. 406, 416 (2007)).

531 489 U.S. 288 (1989).

532 492 U.S. 302 (1989).

533 Penry, 492 U.S. at 314; Whorton v. Bockting, 549 U.S. 406, 416 (2007). Put another way, it is not enough that a decision is “within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a prior decision.” A decision announces a “new rule” if its result “was susceptible to debate among reasonable minds” and if it was not “an illogical or even a grudging application” of the prior decision. Butler v. McKellar, 494 U.S. 407, 412-415 (1990). For additional elaboration on “new law,” see O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).

534 Teague v. Lane, 489 U.S. 288, 307, 311-313 (1989) (plurality opinion); Butler v. McKellar, 494 U.S. 407, 415-416 (1990). Under the second exception it is “not enough that a new rule is aimed at improving the accuracy of a trial… A rule that qualifies under this exception must not only improve accuracy, but also ‘alter our understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 (1990) (emphasis in original). For recent application of the principles, see Schriro v. Summerlin, 124 S. Ct. 2519 (2004) (requirement that aggravating factors justifying death penalty be found by the jury was a new procedural rule that does not apply retroactively). For recent application of the principles, see Schriro v. Summerlin, 542 U.S. 348 (2004) (requirement that aggravating factors justifying death penalty be found by the jury was a new procedural rule that does not apply retroactively).

What the rule is to be in civil cases, and indeed if there is to be a rule, has been disputed to a rough draw in recent cases. As was noted above, there is a line of civil cases, constitutional and nonconstitutional, in which the Court has declined to apply new rules, the result often of overruling older cases, retrospectively, sometimes even to the prevailing party in the case.535 As in criminal cases, the creation of new law, through overrulings or otherwise, may result in retroactivity in all instances, in pure prospectivity, or in partial prospectivity in which the prevailing party obtains the results of the new rule but no one else does. In two cases raising the question when States are required to refund taxes collected under a statute that is subsequently ruled to be unconstitutional, the Court revealed itself to be deeply divided.536 The question in Beam was whether the company could claim a tax re-fund under an earlier ruling holding unconstitutional the imposition of certain taxes upon its products. The holding of a fractionated Court was that it could seek a refund, because in the earlier ruling the Court had applied the holding to the contesting company, and once a new rule has been applied retroactively to the litigants in a civil case considerations of equality and stare decisis compel application to all.537 While partial or selective prospectivity is thus ruled out, neither pure retroactivity nor pure prospectivity is either required or forbidden.

535 The standard that has been applied was enunciated in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Briefly, the question of retroactivity or prospectivity was to be determined by a balancing of the equities. To be limited to prospectivity, a decision must have established a new principle of law, either by overruling clear past precedent on which reliance has been had or by deciding an issue of first impression whose resolution was not clearly foreshadowed. The courts must look to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. Then, the courts must look to see whether a decision to apply retroactively a decision will produce substantial inequitable results. Id. at 106-07. American Trucking Assn’s v. Smith, 496 U.S. 167, 179-86 (1990) (plurality opinion).

Four Justices adhered to the principle that new law, new rules, as defined above, may be applied purely prospectively, without violating any tenet of Article III or any other constitutional value.538 Three Justices argued that all prospectivity, whether partial or total, violates Article III by expanding the jurisdiction of the federal courts beyond true cases and controversies.539 Apparently, the Court now has resolved this dispute, although the principal decision is a close five-to-four result. In Harper v. Virginia Dep’t of Taxation,540 the Court adopted the principle of the Griffith decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: “When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”541 Four Justices continued to adhere to Chevron Oil, however,542 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.543 Future cases must, therefore, be awaited for resolution of this issue.

536 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991); American Trucking Assn’s, Inc. v. Smith, 496 U.S. 167 (1990). And, of course, the retirements since the decisions were handed down further complicates discerning the likely Court position.

537 Beam. The holding described in the text is expressly that of only a two-Justice plurality. 501 U.S. at 534-44 (Justices Souter and Stevens). Justice White, Justice Blackmun, and Justice Scalia (with Justice Marshall joining the latter Justices) concurred, id. at 544, 547, 548 (respectively), but on other, and in the instance of the three latter Justices, and broader justifications. Justices O’Connor and Kennedy and Chief Justice Rehnquist dissented. Id. at 549.

538 Beam, 501 U.S. at 549 (dissenting opinion of Justices O’Connor and Kennedy and Chief Justice Rehnquist), and id. at 544 (Justice White concurring). And see Smith, 496 U.S. at 171 (plurality opinion of Justices O’Connor, White, Kennedy, and Chief Justice Rehnquist).

539 Beam, 501 U.S. at 547, 548 (Justices Blackmun, Scalia, and Marshall concurring). These three Justices, in Smith, 496 U.S. at 205, had joined the dissenting opinion of Justice Stevens arguing that constitutional decisions must be given retroactive effect.

540 509 U.S. 86 (1993).

541 509 U.S. at 97. While the conditional language in this passage might suggest that the Court was leaving open the possibility that in some cases it might rule purely prospectively, not even applying its decision to the parties before it, other language belies that possibility. “This rule extends Griffith’s ban against ‘selective application of new rules.”’ [Citing 479 U.S. at 323]. Inasmuch as Griffith rested in part on the principle that “the nature of judicial review requires that [the Court] adjudicate specific cases,” 479 U.S. at 322, deriving from Article III’s case or controversy requirement for federal courts and forbidding federal courts from acting legislatively, the “Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.” 509 U.S. at 97 (quoting American Trucking, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which he denounces all forms of nonretroactivity as “the handmaid of judicial activism.” Id. at 105.

542 509 U.S. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil.

543 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside a state court refusal to give retroactive effect to a U. S. Supreme Court invalidation of that State’s statute of limitations in certain suits, in an opinion by Justice Breyer, Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184-85 (1995) (“whatever the continuing validity of Chevron Oil after” Harper and Reynoldsville Casket).

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