The "Problem" with the Spending Power [long]

Mark Tushnet tushnet at LAW.GEORGETOWN.EDU
Mon Aug 27 13:23:32 PDT 2001

John Eastman asks:  "when a lower court has already rendered a decision
in an arguably nonjusticiable controversy, what is a higher court to
do?"  The question is complicated by the fact that justiciability is
(usually conceived of as) a doctrine based on Article III -- and
therefore applicable *only* to the federal courts.  State courts decided
cases that would be nonjusticiable in federal court all the time --
advisory opinions, standing that wouldn't satisfy the Article II
requirements, moot cases, etc.  With respect to standing, there's an
argument based on ASARCO that when a state court rejects a defendant's
federal claim in a case brought by a plaintiff who lacks Article III
standing, that decision itself confers standing on the defendant
sufficient to support Supreme Court jurisdiction on appeal.  Do people
know of other cases in which the Supreme Court has said it has (or, even
better, has asserted) jurisdiction in a case brought in state court that
would not have been justiciable had it been brought in federal court?
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