Learning Outcomes
This article explains the constitutional "case or controversy" requirement for federal courts and related justiciability doctrines, including:
- defining the Article III case-or-controversy requirement and distinguishing it from subject-matter jurisdiction
- identifying when a request is an impermissible advisory opinion and spotting common MBE fact patterns that test this bar
- breaking down the elements of standing—injury in fact, causation, and redressability—and applying them to individuals, organizations, third parties, and taxpayers
- comparing prudential and constitutional standing limits and recognizing the narrow Establishment Clause taxpayer exception
- evaluating ripeness by assessing fitness of issues for judicial determination and hardship of withholding review in pre-enforcement challenges
- determining when a case becomes moot and systematically checking each major exception, including capable of repetition yet evading review, voluntary cessation, class actions, and collateral consequences
- integrating these doctrines to decide whether a federal court has power to hear a case before reaching the merits, mirroring the sequence you should follow on MBE questions
- practicing exam-style reasoning so you can quickly eliminate distractor answers that confuse standing with mootness or ripeness and that overlook advisory-opinion concerns
MBE Syllabus
For the MBE, you are required to understand the limits on federal judicial power imposed by Article III of the Constitution, with a focus on the following syllabus points:
- The "case or controversy" requirement as a limit on federal court jurisdiction.
- The prohibition on advisory opinions.
- The requirements for standing, including injury, causation, and redressability.
- The doctrines of ripeness and mootness.
- The exceptions to mootness and standing.
- The practical application of these doctrines to MBE-style questions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is NOT a requirement for standing in federal court?
- The plaintiff must allege a concrete injury.
- The plaintiff must show the injury is fairly traceable to the defendant.
- The plaintiff must show the court can redress the injury.
- The plaintiff must show the issue is a political question.
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A federal court may NOT issue a decision if:
- The plaintiff has suffered a concrete injury.
- The case is moot, with no applicable exception.
- The case is ripe for review.
- The parties have adverse legal interests.
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Which scenario is most likely to be dismissed as an advisory opinion?
- A plaintiff sues after being denied a government benefit.
- A court is asked to rule on the constitutionality of a statute before it is enforced.
- A party seeks an injunction to stop ongoing harm.
- A class action is brought by a representative with a live claim.
Introduction
Federal courts are courts of limited jurisdiction. Article III of the U.S. Constitution restricts federal judicial power to actual "cases or controversies." This means federal courts cannot issue advisory opinions or decide abstract legal questions. The doctrines of standing, ripeness, and mootness further limit the types of disputes federal courts may hear. Understanding these doctrines is essential for answering MBE questions on justiciability.
These doctrines are often grouped under the heading justiciability: a dispute is justiciable only if it is the kind of matter federal courts are constitutionally and prudentially permitted to decide. Even when Congress grants subject‑matter jurisdiction by statute, Article III still requires a genuine case or controversy, and justiciability must be satisfied at every stage of the proceeding.
Key Term: Case or Controversy
A real, live dispute between parties with adverse legal interests, required for federal court jurisdiction under Article III.
The "Case or Controversy" Requirement
Article III requires that federal courts only decide actual disputes between parties with adverse legal interests. The court must be able to grant specific relief to a party who has suffered or is imminently threatened with injury. A lawsuit that seeks only to answer a legal question in the abstract, or to vindicate generalized grievances shared equally by all citizens, falls outside Article III power.
Typical MBE patterns that satisfy the case‑or‑controversy requirement include:
- a plaintiff seeking damages for past harm
- a plaintiff seeking an injunction or declaratory judgment to prevent imminent enforcement of a statute against them
- parties disputing concrete rights under a contract, statute, or constitutional provision
Requests from other branches for “legal advice” or for advance rulings untethered to a concrete dispute do not.
Prohibition on Advisory Opinions
Federal courts cannot issue advisory opinions. An advisory opinion is a decision on a hypothetical legal question or a ruling where the parties do not have adverse interests or where the court cannot grant specific relief.
Key Term: Advisory Opinion
A statement by a court on a legal issue where there is no actual dispute or enforceable judgment; prohibited in federal courts.
Two practical requirements flow from this prohibition:
- There must be adverse parties with genuinely conflicting legal interests.
- The decision must be capable of producing a binding, enforceable judgment that resolves the dispute.
Federal courts may issue declaratory judgments—they are not advisory opinions so long as there is a real, immediate dispute and the declaration will govern the parties’ future conduct (for example, a regulated party seeking a declaration that a regulation is unconstitutional before enforcement, where enforcement is genuinely threatened).
On MBE questions, requests from legislators or agencies asking a court “whether a proposed law would be constitutional” almost always fail as requests for advisory opinions.
Standing
Standing is a threshold requirement for any federal lawsuit. The plaintiff must show:
- Injury in Fact: The plaintiff has suffered or is imminently threatened with a concrete, particularized injury.
- Causation: The injury is fairly traceable to the defendant's conduct.
- Redressability: The court can provide relief that will likely remedy the injury.
Key Term: Standing
The requirement that a plaintiff have a personal stake in the outcome, including injury, causation, and redressability.
Injury in Fact
Key Term: Injury in Fact
A concrete and particularized invasion of a legally protected interest that is actual or imminent, not conjectural or hypothetical.
Key points:
- Concrete and particularized: The injury must affect this plaintiff in a personal way, not merely as a member of the public. Emotional, economic, environmental, or aesthetic harms can qualify if individualized.
- Actual or imminent: Past injuries are classic; future injuries must be certainly impending or there must be a substantial risk of harm. Pure speculation is insufficient.
- No generalized grievances: A plaintiff may not sue solely as a citizen or taxpayer alleging the government is violating the Constitution in the abstract.
Causation
Key Term: Causation (Standing)
The requirement that the plaintiff’s injury be fairly traceable to the defendant’s challenged conduct, and not the result of independent actions by third parties or external forces.
On the MBE, causation is usually satisfied if the defendant’s law or policy directly regulates or harms the plaintiff. It becomes an issue where many independent actors stand between the defendant’s conduct and the alleged injury.
Redressability
Key Term: Redressability
The requirement that it is likely, not merely speculative, that a favorable court decision will remedy or lessen the plaintiff’s injury.
If the court’s order would not change anything meaningful for the plaintiff, redressability fails and standing is lacking. For example, challenging one of many independent causes of harm may fail if the harm would persist regardless of the court’s ruling.
Worked Example 1.1
A state passes a law restricting certain speech, but no one has been prosecuted or threatened with prosecution. An advocacy group files suit in federal court, seeking a declaration that the law is unconstitutional.
Answer:
The court will likely dismiss the case as an advisory opinion or for lack of ripeness. There is no actual or imminent injury to the group—no member faces a real threat of enforcement—so there is no injury in fact and any ruling would be hypothetical.
Third‑Party and Taxpayer Standing
Generally, a party cannot assert the rights of others (no third‑party standing), and taxpayers lack standing to challenge government expenditures. These are often called prudential standing limits.
Key Term: Third-Party Standing
An exception that allows a plaintiff to assert the rights of others when the plaintiff has standing, has a close relationship with the third party, and there is some obstacle preventing the third party from asserting their own rights.
Third‑party standing is allowed where:
- the plaintiff has Article III standing in their own right,
- the plaintiff has a close relationship with the person whose rights are at issue (for example, doctor–patient, vendor–customer), and
- there is some hindrance to the third party’s ability to sue (privacy concerns, practical obstacles, chilling effect, etc.).
Organizations may also have associational standing to sue on behalf of their members when:
- members would have standing individually,
- the interests sued upon are germane to the organization’s purpose, and
- neither the claim nor relief requires individual member participation (for example, a trade association seeking an injunction).
Key Term: Taxpayer Standing
The general rule that federal taxpayers may not sue simply as taxpayers to challenge how the government spends or raises money, subject to a narrow Establishment Clause exception.
Federal taxpayers almost never have standing to challenge federal spending or tax schemes merely because they disagree with them. The one narrow exception (often tested) allows taxpayer standing to challenge congressional exercises of the Taxing and Spending Power that allegedly violate the Establishment Clause (for example, a statute appropriating money to pay salaries of clergy). There is no taxpayer standing to challenge executive branch expenditures, tax credits, or regulatory actions.
Worked Example 1.2
A doctor challenges a state abortion consent law on behalf of her current and future patients, alleging it unconstitutionally burdens their rights. Her patients are unlikely to sue individually because of privacy concerns and the short duration of pregnancy.
Answer:
The suit is likely justiciable. The doctor has injury in fact (regulation of her practice), a close relationship with her patients, and there is a real hindrance to patients asserting their own rights. Third‑party standing is proper.
Ripeness
Ripeness prevents courts from hearing cases that are premature. A claim is unripe if it is based on speculative future harm or if the law has not yet been enforced against the plaintiff.
Key Term: Ripeness
The requirement that a claim be sufficiently developed and not premature for judicial review.
Courts often look at two considerations:
- Fitness of the issues for judicial decision: Are the issues mostly legal (favoring review) or do they depend on uncertain future facts? Has the regulation been finalized?
- Hardship to the parties of withholding review: Must the plaintiff now choose between costly compliance and serious penalties? Is there a credible threat of enforcement?
Pre‑enforcement challenges are often ripe where the plaintiff is currently subject to a regulation and faces a real choice: comply at significant cost or risk serious sanctions.
Worked Example 1.3
A federal agency issues binding regulations that will require businesses to install expensive equipment by next year or face fines. A regulated company sues now, alleging the regulations are unconstitutional.
Answer:
The claim is likely ripe. The regulations are final, the company already faces present compliance costs and a real threat of penalties, and the issues are largely legal. The hardship of waiting is substantial.
Mootness
A case is moot if, after filing, events occur that eliminate the plaintiff's personal stake in the outcome. Federal courts require a live controversy at all stages of litigation, not just when the complaint is filed.
Key Term: Mootness
The doctrine that requires a case to present a live controversy at all stages; if the dispute is resolved or becomes academic, the case is dismissed.
For example, if the plaintiff receives all requested relief and there is no remaining effect a court order could have, the case is ordinarily moot. However, several important exceptions frequently appear on the MBE.
Key exceptions include:
- cases capable of repetition yet evading review
- voluntary cessation by the defendant
- class actions where at least one class member retains a live claim
- cases with continuing collateral consequences for the plaintiff (e.g., criminal convictions)
Key Term: Capable of Repetition Yet Evading Review
An exception to mootness for disputes that are inherently short‑lived, likely to recur as to the same plaintiff, and consistently end before full appellate review is possible.
Worked Example 1.4
A plaintiff sues a city, claiming a permit denial violated her rights. After the lawsuit is filed, the city grants the permit and the plaintiff no longer seeks relief.
Answer:
The case is now moot. There is no longer a live controversy, and the court will dismiss unless an exception applies (for example, a pattern of denial that is capable of repetition as to the same plaintiff but consistently evades review).
Worked Example 1.5
A woman challenges a state abortion law while pregnant. By the time her case reaches the Supreme Court, she is no longer pregnant.
Answer:
The case is not moot under the "capable of repetition, yet evading review" exception, because pregnancy is a short‑term condition likely to recur for the same woman but consistently evade full judicial review.
Another important exception is voluntary cessation: if a defendant stops the challenged conduct but is free to resume it at any time, courts usually refuse to dismiss as moot.
Similarly, many criminal cases are not moot even after the sentence has been fully served because of ongoing collateral consequences (such as loss of voting rights or enhanced sentencing in future cases).
Worked Example 1.6
A city enacts an ordinance banning political leafleting in parks. A civil liberties group sues. After the lawsuit is filed, the city repeals the ordinance but publicly states that it might reenact a similar ban in the future.
Answer:
The case is likely not moot. The city’s voluntary cessation of the challenged policy does not guarantee that the injury will not recur; courts typically require the defendant to show it is absolutely clear the conduct cannot reasonably be expected to restart.
Worked Example 1.7
An inmate challenges prison disciplinary procedures and is released while the case is pending. The discipline remains on his record and could harm his parole prospects in another jurisdiction.
Answer:
The case is not moot because of collateral consequences. The challenged action continues to have legal effects on the plaintiff, so a favorable decision could still redress a live injury.
Additional Standing Examples
Worked Example 1.8
Residents who occasionally fish in a river sue a factory hundreds of miles upstream, alleging its discharges violate the Clean Water Act and degrade the river’s aesthetics.
Answer:
The plaintiffs likely have standing. They allege concrete, particularized injury (diminished enjoyment of specific stretches of the river they personally use), causation (pollution from the factory), and redressability (an injunction would likely lessen the harm). This is not a generalized grievance.
Worked Example 1.9
A federal taxpayer sues to challenge a statute directing the Treasury Department to issue regulations easing environmental restrictions on offshore drilling, claiming the statute violates the Commerce Clause and harms future generations.
Answer:
The suit will be dismissed for lack of standing. This is a generalized grievance about federal policy; the plaintiff alleges only taxpayer status and disagreement with how the government exercises its powers. No taxpayer exception applies because the challenge is not to a specific congressional taxing‑and‑spending measure under the Establishment Clause.
How the Doctrines Fit Together
Although often tested separately, these doctrines interact:
- Standing asks: does this plaintiff have a sufficient, personal stake in the dispute?
- Ripeness asks: is the dispute ready now, or is it too early and speculative?
- Mootness asks: does a live controversy still exist, or has it ended?
- The advisory opinion bar asks: will the court’s decision resolve a real dispute and produce an enforceable judgment?
A case can fail at more than one step. For example, a plaintiff challenging a statute that has never been enforced against anyone may lack both injury in fact (standing) and ripeness.
Exam Warning
On the MBE, be careful not to confuse standing (injury, causation, redressability) with mootness (whether the controversy still exists) or ripeness (whether the controversy is ready for review). Each doctrine is tested separately, and different facts usually point to different defects.
Common distractors include:
- saying a plaintiff lacks standing because the interest is a “privilege, not a right” (irrelevant to standing)
- treating any pre‑enforcement challenge as unripe, even where enforcement is clearly threatened
- ignoring mootness exceptions such as “capable of repetition yet evading review” and voluntary cessation
Revision Tip
Always check for standing, ripeness, and mootness before analyzing the merits of a federal case. If any are missing, the court must dismiss for lack of jurisdiction, regardless of how strong the constitutional or statutory arguments might be.
Key Point Checklist
This article has covered the following key knowledge points:
- Article III restricts federal courts to actual cases or controversies.
- Federal courts cannot issue advisory opinions; there must be adverse parties and an enforceable judgment.
- Standing requires injury in fact, causation, and redressability; generalized grievances are insufficient.
- Third‑party standing is exceptional and requires a close relationship and hindrance; federal taxpayer standing exists only in a narrow Establishment Clause context.
- Ripeness bars premature claims based on speculative future harms; courts weigh fitness of issues and hardship of withholding review.
- Mootness bars cases where the controversy has ended, but exceptions include cases capable of repetition yet evading review, voluntary cessation, collateral consequences, and certain class actions.
- Justiciability doctrines must be satisfied at all stages of litigation and are frequently tested on the MBE in subtle ways.
Key Terms and Concepts
- Case or Controversy
- Advisory Opinion
- Standing
- Injury in Fact
- Causation (Standing)
- Redressability
- Third-Party Standing
- Taxpayer Standing
- Ripeness
- Mootness
- Capable of Repetition Yet Evading Review