FEDERAL JURISDICTION
by James E. Viator*
I.
II.
INTRODUCTION....................................
NATIONAL JUDICIAL POWER . . . . . . . . . . . . . . . . . . . . . . . .
A.
B.
Supplemental Jurisdiction .....................
Standing-Of Cases and Controversies. . . . . . . . . .
I.
521
522
522
526
INTRODUCTION
During the eleven-month survey period,l the United States Court
of Appeals for the Fifth Circuit faced a docket so crowded as to be
almost a paradigm of the modern litigation explosion. Given the
staggering array of cases touching on federal jurisdiction, the author
has not attempted to clean the Augean stables. Rather, he has
eliminated both the cases dealing with issues consistently appearing
not only on the pages of Fifth Circuit opinions, but also in law
review survey articles (e.g., the overworked question of "absolute
diversity' ') and also the cases usually decided in essentially the same
way and on essentially the same grounds year after year. The cases
treated in the survey were selected to provide an overview of troublesome areas of the law of federal jurisdiction, especially cases in
the currently contested area of access to the federal courts-viz, cases
on such threshold issues as standing and mootness. 2
* Assistant Professor of Law, Texas Tech University School of Law. B.A., University
of New Orleans, 1971; J.D., Louisiana State University Law Center, 1985. Former Law Clerk
to the Honorable Henry A. Politz, United States Fifth Circuit Court of Appeals (June 1985June 1986). The author wishes to acknowledge the apt counsel and incomparable pedagogy,
as well as the uncommonly down-to-earth good sense and good humor, of Judge Politz.
Without all these traits, not only would the abundance of justice in the Fifth Circuit be
somewhat less abundant, but also would the learning, understanding, and maturation of this
writer be less availing than they are today.
1. The survey period for this volume's Fifth Circuit Symposium runs from July I, 1985
through May 31, 1986.
2. Operating on the "if it ain't broke, don't fix it" principle, the author wishes to
acknowledge the wisdom of his immediate predecessor in this survey in recognizing the sound
organizational guide provided by Professor Thomas E. Baker'·s 1985 Symposium article. Shank,
Fifth Circuit Symposium-Federal Jurisdiction, 17 TEX. TECH L. REV. 603, 603 n.1 (1986);
Baker, Fifth Circuit Symposium-Federal Jurisdiction, 16 TEX. TECH L. REV. 145 passim
(1985).
521
HeinOnline -- 18 Tex. Tech L. Rev. 521 1987
522
TEXAS TECH LA W REVIEW
II.
[Vol. 18:521
NATIONAL JUDICIAL POWER
A. Supplemental Jurisdiction
As the regular readers of these pages are well aware,3 ancillary
and pendent jurisdiction are different species of the same jurisdictional genus, recently denominated "supplemental jurisdiction" by
one commentator. 4 As regular readers are also aware, the Supreme
Court has been casual in its treatment of supplemental jurisdiction
by not differentiating between the ancillary and pendent species. 5 In
a recent authoritative pronouncement, the Supreme Court described
the pendent and ancillary doctrines as "two species of the same
generic problem: Under what circumstances maya federal court hear
and decide a state law claim arising between citizens of the same
State?"6
3. Baker, supra note 2, at 148-49; Shank, supra note 2, at 603.
4. Matasar, A Pendent and Ancillary Jurisdiction Primer: The Scope and Limits oj
Supplemental Jurisdiction, 17 U.C.D. L. REv. 103 (1983) [hereinafter cited as Matasar,
Supplemental Jurisdiction Primer); Matasar, Rediscovering "One Constitutional Case": Procedural Rules and the Rejection oj the Gibbs Test Jor Supplemental Jurisdiction, 71 CALIF.
L. REv. 1401 (1983) [hereinafter cited as Matasar, Procedural Rules and Supplemental Jurisdiction). Pendent and ancillary jurisdiction have also been denominated "incidental jurisdiction." Note, A Closer Look at Pendent and Ancillary Jurisdiction: Toward a Theory oj
Incidental Jurisdiction, 95 HARV. L. REv. 1935 (1982).
5. Baker, supra note 2, at 148.
6. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370, 98 S. Ct. 2396, 2401, 57
L. Ed. 2d 274, 280 (1978); see also Aldinger v. Howard, 427 U.S. I, 13, 96 S. Ct. 2413,
2420, 49 L. Ed. 2d 276, 285 (1976) (stating that "there is little profit in attempting to decide
... whether there are any 'principled' differences between pendent and ancillary jurisdiction").
The pendent and ancillary species trace back to the same opinion of Chief Justice Marshall
in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 846-59, 6 L. Ed. 204, 22933 (1824)-that fountainhead of federal jurisdictional manifest destiny, which may be one
reason that its author, Chief Justice John Marshall, became the beloved subject of expansionist
Senator Albert J. Beveridge's definitive biography. 1-4 A. BEVERIDGE, THE LIFE OF JOHN
MARSHALL (1916-1919). The Marshall opinion in Osborn contains the seeds of such "expansionist" federal jurisdictional doctrines as-in addition to supplemental jurisdiction-protective
jurisdiction and liberally-read "arising under" original jurisdiction. Osborn, 22 U.S. (9 Wheat.)
at 846-59, 6 L. Ed. at 229-33. If it can fairly be said that Chief Justice Marshall made the
federal courts the "trustees" of lawsuits containing a kernel of "federalness," then perhaps
we can see Senator Beveridge's affinity for his biographical subject: at around the turn of this
century, Senator Beveridge summed up the lessons of America's decade of mild infatuation
with imperialism (1890 to 1900) with the declaration that, like it or not, the American people
had become the trustees "under God" of world civilization, for "He has made us the master
organizers of the world to establish system where chaos reigns." B. BAll.YN. D. DAVIS, D.
DONALD, J. THOMAS, R. WIEBE & G. WOOD, THE GREAT REPUBLIC 981 (1977).
HeinOnline -- 18 Tex. Tech L. Rev. 522 1987
1987]
FEDERAL JURISDICTION
523
The generic problem addressed by these two species of supplemental jurisdiction is another one of the many problems created by
the American system of federalism, whereby the judicial power is
divided between two systems of courts, state and federal. "Supplemental problems" naturally attend the inevitable intermingling of
federal parties and claims with non federal parties and claims. The
problem, then, concerns the joining of parties and claims normally
outside of federal jurisdictional power to those normally considered
within federal jurisdiction. 7 This exercise might appear to be analogous to the fabled conundrum of "squaring the circle," which
fascinated ancient Greek philosophers for centuries; it has prompted
learned commentators to describe the notion of supplemental jurisdiction as both "curious"8 and strictly necessary.9
In order to keep the two varieties of this extraordinary doctrine
both separate and memorable, a schoolboy's mnemonic device can
be helpful: "P" is for "pendent" and "plaintiff" -pendent jurisdiction concerns the addition of claims and parties by plaintiffs in
their initial or amended complaints; "A" is for "ancillary" and
"answer" or "afterwards" -ancillary jurisdiction deals with nonfederal claims and parties that are added to the case "after" it has been
filed by the plaintiff, either through defendants' "answers" or intervenors' petitions of intervention. To make this differentiation is not
to engage in an idle exercise, since "at least for the purposes of
joining new parties ordinarily outside federal jurisdiction, ancillary
jurisdiction is broader than pendent jurisdiction."10
As noted above, pendent jurisdiction normally involves the plaintiff's addition of state (non federal) claims to federal claims. During
7. The governing rubric for the exercise of supplemental jurisdiction was announced in
United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), which
set forth a tripartite inquiry now known as the Gibbs test: (I) the federal claim must be
substantial enough to confer subject matter jurisdiction on the court; (2) the nonfederal and
the federal claims must arise from a common nucleus of operative fact; and (3) the nonfederal
and the federal claims must be such that, disregarding their nonfederal or federal character,
they would ordinarily be expected to be tried together in one judicial proceeding. Id. at 725,
86 S. Ct. at 1138, 16 L. Ed. 2d at 227-28.
8. Baker, supra note 2, at 148.
9. C. WRIGHT, THE LAW OF FEDERAL COURTS 103 (4th ed. 1983) (describing the supplemental-jurisdiction rule of the Osborn case and stating that "[t)here could hardly be any other
rule"); Matasar, Supplemental Jurisdiction Primer, supra note 4, at 189 (describing supplemental jurisdiction as a method to insure "fair and efficient litigation of federal claims").
10. Matasar, Procedural Rules and Supplemental Jurisdiction, supra note 4, at 1401-02
n.2.
HeinOnline -- 18 Tex. Tech L. Rev. 523 1987
524
TEXAS TECH LA W REVIEW
[Vol. 18:521
this survey period, however, the Fifth Circuit was faced with the
creative argument of a Texas State Bar member facing disciplinary
proceedings, who argued that his federal constitutional claims should
be appended to his dismissed federal antitrust claim. In Hefner v.
Alexander, II the plaintiff filed a suit in federal district court seeking
declaratory and injunctive relief from disciplinary proceedings that
had been filed against him by the Texas State Bar. 12 Hefner alleged
that the bar grievance procedures violated his fifth and fourteenth
amendment rights and constituted restraints of trade under the Sherman Antitrust Act. 13 The district court dismissed the plaintiff's antitrust claims because of the state antitrust immunity doctrine, and
it abstained from hearing his constitutional claims because of the
Younger v. Harrisl4 abstention doctrine. IS
In order to salvage his constitutional claims, the plaintiff alleged
that even though his federal antitrust claim had been dismissed, the
district court should proceed to the merits of his constitutional
allegations under its pendent jurisdiction. 16 In his Order of Dismissal
and Memorandum Opinion, the district judge rejected the plaintiff's
novel argument on the grounds that " 'it would effectively defeat the
precise purpose of the abstention doctrine' " and thereby permit
federal courts to interfere with pending state cases. 17
In making his odd argument, Hefner relied on Silva v. Vowell,18
which Judge Garza, speaking for the Hefner court, rejected as
distinguishable. 19 Judge Garza was correct to reject the applicability
of Silva in the present context, for the earlier case can be distinguished
on its facts and the concomitant law. Silva involved a constitutional
challenge to a Texas statute for its collision with the federal Aid to
II.
779 F.2d 277 (5th Cir. Dec. 1985).
[d. at 278.
[d.
14. 401 U.S. 37, 91 S. Ct. 760,27 L. Ed. 2d 669 (1971). For an exhaustive analysis of
the development of federal abstention doctrines, see Theis, Younger v. Harris: Federalism in
Context, 33 HASTINGS L.J. !03 (1981); see also Redish, Abstention, Separation of Powers,
and the Limits of the Judicial Function, 94 YALE L.J. 71, 90-98 (1984) (comparing Younger
abstention to other forms of partial abstention). For further discussion of abstention, see infra
text accompanying notes 18-28.
15. 779 F.2d at 278-79.
16. [d. at 281.
17. [d. (quoting district court Memorandum Opinion).
18. 621 F.2d 640 (5th Cir. 1980), cert. denied, 449 U.S. 1125 (1981).
19. 779 F.2d at 281-82.
12.
13.
HeinOnline -- 18 Tex. Tech L. Rev. 524 1987
1987]
FEDERAL JURISDICTION
525
Families with Dependent Children (AFDC) program. 20 The plaintiffs
had attacked the Texas statute on both due process and equal
protection grounds, and also on the basis of the federal constitution's
supremacy clause. 21 At the time of the litigation leading to Silva, the
$10,000 jurisdictional amount was still contained in the general
federal question jurisdictional statute, 28 V.S.C. § 1331. 22 Therefore,
on account of Chapman v. Houston Welfare Rights Organization,23
in which the Supreme Court held that a federal court has no
jurisdiction under 28 V.S.c. § 1343 to hear a federal claim based
entirely on a supremacy clause conflict,24 the Silva panel was faced
with a case that had no obvious federal jurisdictional peg from which
to hang, for the federal due process and equal protection claims had
been mooted prior to entry of judgment in the federal district courU5
Thus, the Silva case, in addition to its unusual factual and jurisdictional circumstances, did not contain any of the federalism and
comity concerns underlying the abstention doctrine, for there was no
countervailing state action pending before any state tribunal. Hence,
paying proper obeisance to federalism, Judge Garza wisely refused
to sidestep the abstention doctrine applied in Hefner by declining to
recognize the broad statements about pendent jurisdiction in Silva:
Hefner relies on language in Silva . .. to urge that when a pendent
claim is federal, but not otherwise justiciable by a federal court,
the court may exercise jurisdiction over the pendent federal
claim. . . . But in view of the policies underlying the abstention
doctrine the district court was compelled to reject this argument.
We agree ... , especially when we consider the subject matter of
this lawsuit, attorney disciplinary proceedings, and the deference
federal courts have afforded to the states in the regulation of
their respective Bars.26
The Fifth Circuit properly regarded the federalism and comity
principles in the absention doctrine as a paramount concern in this
case and therefore rejected the plaintiff's unusual argument for
appending an "abstained" federal claim to a dismissed federal an-
20.
21.
22.
23.
24.
25.
26.
621 F.2d at 643.
Id. at 645-47.
28 U .S.c. § 1331 (1976).
441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).
Id. at 615, 99 S. Ct. at 1915, 60 L. Ed. 2d at 521.
621 F.2d at 643-44, 647-50.
779 F.2d at 281-82 (citations omitted).
HeinOnline -- 18 Tex. Tech L. Rev. 525 1987
TEXAS TECH LA W REVIEW
526
[Vol. 18:521
titrust claimY Moreover, the court cannot be criticized for exalting
the abstention doctrine over the pendent doctrine, since in the exercise
of its discretion to append or not to append, the federal courts must
keep in mind, as a matter of comity, the policy of avoiding needless
decisions of state law. 28 Although in this case the claim hoped to be
appended was federal, not state, the same respect for state proceedings should, mutatis mutandis, be applied.
B.
Standing-Of Cases and Controversies
The judicial power [of the United States] shall extend to
all Cases, in Law and Equity, arising under this Constitution, the
Laws of the United States, and Treaties made . . . under their
Authority ... [and] to Controversies to which the United States
shall be a party;-to Controversies between two or more States;between a' State and Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects. 29
Contrary to the stasis suggested by the name of the doctrine,
"standing" seems always to be in a state of flux, never standing
still. Through article Ill's requirement that federal jurisdiction extend
only to valid "cases" or "controversies," the doctrine of justiciability
has been made a part of American constitutional law. The requirement that a "case" or "controversy" be justiciable in order to be
cognizable in federal court has traditionally limited the authority of
the federal judiciary "to questions presented in an adversary context
and in a form historically viewed as capable of resolution through
the judicial process" and has also helped define the place of "the
judiciary in a tripartite allocation of powers. "30 The doctrine prescribes four absolute prerequisites to federal jurisdiction: (l) the
litigant must have "standing;"31 (2) the case must satisfy the general
27. [d.
28. Laird v. Board of Trustees, 721 F.2d 529, 534 (5th Cir. 1983).
29. U.S. CONST. art. III, § 2, d. I.
30. Fiast v. Cohen, 392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-50, 20 L. Ed. 2d 947, 95859 (1968).
31. See, e.g., Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700,708-09 (1982)
(stating that the Supreme Court "has always required that a litigant have 'standing' to challenge
the action sought to be adjudicated in the lawsuit").
HeinOnline -- 18 Tex. Tech L. Rev. 526 1987
1987J
FEDERAL JURISDICTION
527
"ripeness" principle32-that is, the issue must not be abstract or
brought prematurely; (3) an active controversy must exist at every
stage of the litigation, including the appellate stage, in order that it
not be dismissed as "moot;"33 and (4) the case must be dismissed as
nonjusticiable if it touches on a "political question. "34
As originally formulated, the requirement of standing excluded
from the court's jurisdiction strangers to the controversy by barring
parties with no legal right aggrieved in the matter. This traditional
view of standing developed from the model of common-law adjudication with its focused attention on the private rights and duties of
litigants-parties often appellated Hohfeldian plaintiffs. 35 This tra-
32. See Adler v. Board of Educ., 342 U.S. 485, 496, 72 S. Ct. 380, 386-87, 96 L. Ed.
517, 526 (1952); United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S. Ct. 556, 564,
91 L. Ed. 754, 766-67 (1947); J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITUTIONAL LAW
72-74 (2d ed. 1983).
33. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481-82, 102 S. Ct. 1181, 1183,71 L. Ed.
2d 353, 356-57 (1982) (per curiam) (holding that a constitutional claim to pretrial bail becomes
moot once the accused is convicted, where the accused has made no claim to bail pending
appeal); De Funis v. Odegaard, 416 U.S. 312, 316, 94 S. Ct. 1704, 1705-06, 40 L. Ed. 2d
164, 168-69 (1974) (per curiam) (stating that on account of the case-or-controversy limitation
on federal judicial power, moot case could not be reviewed). Space limitations prevent analysis
of several interesting Fifth Circuit mootness opinions of this survey period. See, e.g., Eitel v.
Holland, 787 F.2d 995, 997 (5th Cir. Apr. 1986) (declaring moot a prayer for an injunction
to recuse the trial judge where trial already completed), aff'd on reh 'g, 798 F .2d 815 (5th Cir.
Aug. 1986); Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. Feb. 1986) (holding that on
account of possible "adverse collateral consequences" arising from his deportation, an alien's
habeas corpus petition was not moot, even though it had been filed with the district court
after the Immigration and Naturalization Service had relinquished petitioner to the custody of
the airline company and after his flight had taken off); Smith v. Winter, 782 F.2d 508, 51011 (5th Cir. Feb. 1986) (stating that where members of the county board of education sought
to enjoin their recall election and they later prevailed in that election, their claim for injunctive
relief had been mooted by their victory at the polls); United States v. Schuster, 77fi, F.2d 1132,
1133 (5th Cir. Dec. 1985) (holding that "the death of a defendant pending conclusion of the
direct criminal appeal abates, ab initio, not only the appeal, but the entire criminal proceeding"
and that the security for the criminal fine deposited with the district court should therefore
be delivered over to the estate of the deceased); United States v. O'Shaughnessy, 772 F.2d
112, 113 (5th Cir. Sept. 1985) (applying doctrine of Murphy v. Hunt, 455 U.S. 478, 102 S.
Ct. 1181, 71 L. Ed. 2d 353 (1982) (per curiam), to dismiss, as mooted by his subsequent
conviction and sentence, the defendant's appeal of judicial orders concerning his pretrial
detention and bail). See generally Greenbaum, Mootness on Appeal in Federal Courts: A
Reexamination of the Consequences of Appellate Disposition, 17 U.C.D. L. REV. 7 (1983)
(the best recent study of mootness on appeal).
34. See, e.g., Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491
(1969); Baker v. Carr, 369 U.S. 186,82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Luther v. Borden,
48 U.S. (7 How.) I, 12 L. Ed. 581 (1849).
35. See Jaffe, The Citizen as Litigant in Public Actions: The Non-Hohfeldian or /deo-
HeinOnline -- 18 Tex. Tech L. Rev. 527 1987
528
TEXAS TECH LA W REVIEW
[Vol. 18:521
ditional view of standing was described by Justice Antonin Scalia as
a theoretical rephrasing of the average person's "rudely asked [question] when one person complains of another's action's: 'What's it to
you?' "36 The dominance of common-law patterns of adjudication
explains why, yet today, standing hardly ever becomes an issue in
private lawsuits, for in such cases it is clear that the litigants are
aggrieved holders of "tort" or "contract" or "property" rightsY
Traditionally, therefore, the requirement of standing was both defined
and thus automatically satisfied by the traditional common-law suit
in which the plaintiff went to court to vindicate his personal commonlaw rights. 38 Moreover, in the typical common-law private law suit,
"the issue of standing usually merges with the issue of whether the
plaintiff is entitled to a judgment on the merits. "39 That modern
"standing" jurisprudence totters in a state of major intellectual
disarray has been widely proclaimed by constitutional scholars, "liberal" and "conservative."4O
logical Plaintiff, 116 V. PA. L. REV. 1033 (1968); see also W. HOHFELD, FUNDAMENTAL LEGAL
CONCEPTIONS As APPLIED IN JUDICIAL REASONING, AND OTHER LEGAL ESSAYS (1919); Radin,
A Restatement of Hohfeld, 51 HARV. L. REv. 1141 (1938). Historically, the dominance of
common·law litigation models and of Hohfeld's fundamental legal conceptions based on
common-law patterns of adjudication "discouraged any judicial concern for the rights of
strangers to the litigation." Monaghan, Third Party Standing, 84 COLUM. L. REV. 277, 279
(1984) (footnote omitted).
36. Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers,
17 SUFFOLK V.L. REv. 881, 882 (1983).
37. See C. WRIGHT, supra note 9, at 60; Baker, Thinking About Federal JurisdictionOf Serpents and Swallows, 17 ST. MARY'S L.J. 239, 241 (1986).
38. See Tennessee Elec. Power Co. v. TVA, 306 V.S. 118, 137·38, 59 S. Ct. 366, 369,
83 L. Ed. 2d 543, 549 (1939) (noting that "[t)he principle [of standing) is without application
unless the right invaded is a legal right,-one of property, one arising out of contracts, one
protected against tortious invasion, or one founded on a statute which confers a privilege")
(footnote omitted).
39. The Supreme Courl, 1983 Term, 98 HARV. L. REv. 87, 236 (1984) (citing Chayes,
The Supreme Court, 1981 Term-Foreword: Public Law Litigation and the Burger Court, 96
HARV. L. REV. 4, 8-9 (1982». Cj. Currie, Misunderstanding Standing, 1981 SuP. CT. REV.
41, 43 ("Whether the answer [to the question of whether plaintiff can litigate in federal court]
is labeled 'standing' or 'cause of action,' the question is whether the statute or Constitution
implicitly authorizes the plaintiff to sue. ").
40. Compare K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 22.00-22.20 (Supp. 1982); L.
TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 3-17 to 3-29 (1978); J. VINL'IG, LEGAL IDENTITY:
THE COMING OF AGE IN PUBLIC LAW 1-2 (1978); Chayes, The Supreme Court, 1981 TermForeword: Public Law Litigation and the Burger Court, 96 HARV. L. REv. 4, 8-10 (1982);
Davis, Standing, 1976, 72 Nw. V.L. REV. 69, 69-70 (1977); Doernberg, "We the People":
John Locke, Collective Constitutional Rights, and Standing to Challenge Government Action,
HeinOnline -- 18 Tex. Tech L. Rev. 528 1987
1987]
FEDERAL JURISDICTION
529
In the 1960's the Warren Court took the first tentative steps
toward "liberalizing" the standing doctrine for both taxpayers 41 and
ordinary litigants. 42 But it was not until the accession of the supposedly "conservative" Burger Court that the modern "liberalized" standing doctrine achieved its fully developed form. The steadily increasing
number of lawsuits seeking to restrain or challenge governmental
activity prompted the Burger Court to revise radically traditional
standing doctrine by moving away from the requirement of an injury
to a legal interest toward the reduced requirement of injury in fact,
under which the plaintiff need only show that he has suffered some
"distinct and palpable injury"43-thus implying that the injury need
be only physical, economic, or intellectual, and not necessarily an
injury to a legal right or interest. 44 Whether the Court has, as some
73 CALIF. L. REV. 52, 54 (1985); Neuborne, The Procedural Assault on the Warren Legacy:
A Study in Repeal by Indirection, 5 HOFSTRA L. REV. 545, 551-55 (1977); Nichol, Rethinking
Standing, 72 CALIF. L. REV. 68, 69 (1984) [hereinafter cited as Nichol, Rethinking Standing];
Nichol, Standing on the Constitution: The Supreme Court and Valley Forge, 61 N.C.L. REV.
798, 803 (1983); Nichol, Backing into the Future: The Burger Court and the Federal Forum,
30 KAN. L. REV. 341, 345 (1982); Nichol, Causation As a Standing Requirement: The
Unprincipled Use of Judicial Restraint, 69 Ky. L.J. 185, 188 (1981) [hereinafter cited as
Nichol, Causation]; Rohr, Fighting for the Rights of Others: The Troubled Law of ThirdParty Standing and Mootness in the Federal Courts, 35 U. MIAMI L. REV. 393, 395 (1981);
Sedler, Standing and the Burger Court: An Analysis and Some Proposals for Legislative
Reform, 30 RUTGERS L. REV. 863 (1977); Tushnet, The New Law of Standing: A Plea for
Abandonment, 62 CORNELL L. REV. 663, 663-64 (1977) (liberal) with Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 HARV.
L. REV. 297, 298 (1979); Currie, supra note 39; Floyd, The Justiciability Decisions of the
Burger Court, 69 NOTRE DAME L. REV. 862 (1985); McDowell, Whither the Case or Controversy
Requirement?, in 1 K. FEINBERG, J. KRESS & G. McDOWELL, THE LEGAL SYSTEM: ASSAULT ON
THE ECONOMy-THE HIGH COST AND EFFECT OF LITIGATION 33 (1986); Marshall & Flood,
Establishment Clause Standing: The Not Very Revolutionary Decision at Valley Forge, 11
HOFSTRA L. REV. 63, 65-66 (1982); Scott, Standing in the Supreme Court-A Functional
Analysis, 86 HARV. L. REV. 645, 646 (1973) (conservative).
41. Flast v. Cohen, 392 U.S. 83, 101-02, 88 S. Ct. 1942, 1952-54, 20 L. Ed. 2d 947, 96263 (1968).
42. Baker v. Carr, 369 U.S. 186,204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663, 678 (1962)
(stating that a plaintiff must simply have such a "personal stake" in the issue that the litigation
will achieve the "concrete adverseness" required by article Ill's case-or-controversy requirement).
43. Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343, 356
(1975).
44. See Nichol, Rethinking Standing, supra note 40, at 73-75. The revolution in standing
doctrine began with the advent of the injury-in-fact test in Association of Data Processing
Servo Orgs. v. Camp, 397 U.S. 150, 152, 90 S. Ct. 827, 829, 25 L. Ed. 2d 184, 187 (1970).
The Data Processing standard replaced the legal-interest test, which had required that the
HeinOnline -- 18 Tex. Tech L. Rev. 529 1987
530
TEXAS TECH LA W REVIEW
[Vol. 18:521
have alleged,45 retreated from its early 1970's view of standing, it has
become clear by now that there are three constitutional essentials to
the standing doctrine and three court-fashioned prudential considerations as well. 46
The chief distinguishing characteristic of modern standing doctrine-namely, the injury in fact test-represents the core concept of
the Burger Court's standing doctrine. This is the threshold requisite
that all claims to standing must first satisfy. As noted, this test was
developed in the Data Processing case,47 and numerous commentators
have asserted that injury in fact-whether economic or othercomposes the fundamental constitutional minimum that stands athwart
every litigant's access to the federal courts. 48 The remaining two
plaintiff establish an injury to a legally protected right or interest in order to gain entry to
federal court. Perkins v. Lukens Steel Co., 310 U.S. 113, 129, 60 S. Ct. 869, 875-76, 84 L.
Ed. 1108, 1113 (1940); Tennessee Elec. Power Co. v. TVA, 306 U.S 118, 137,59 S. Ct. 366,
369, 83 L. Ed. 543, 549 (1939). This legal-interest inquiry had been the traditional test for
judicial cognizance of one's claim, see Monaghan, supra note 35, at 279, and it had also
constituted an essential component of traditional standing doctrine, see McDowell, supra note
40, at 39-40. "Standing" scholars have regarded the Burger Court opinions that replaced the
legal-right test with more relaxed inquiries, such as Data Processing and United States v.
Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686-87, 93 S.
Ct. 2405, 2415, 37 L. Ed. 2d 254, 269 (1972), as significant factors in the rise of public-law
litigation. See J. VINING, supra note 40, at 26-27, 39-40; Chayes, supra note 40, at 10-11;
Monaghan, supra note 35, at 280.
45. See Doernberg, supra note 40, at 92-95; The Supreme Court, /98/ Term, 96 HARV.
L. REv. 62, 199-201 (1982) [hereinafter cited as /98/ Term]; Note, The Burger Court's Unified
Approach to Standing and Its Impact on Congressional Plaintiffs, 60 NOTRE DAME L. REv. 1187,
1191-94 (1985).
46. The Supreme Court clearly distinguished the "constitutional" and the "prudential"
components of standing in Warth v. Seldin: the prudential considerations are "closely related
to Article III concerns but [are] essentially matters of judicial self-governance." 422 U.S. at
500, 95 S. Ct. at 2205-06, 45 L. Ed. 2d at 355. The three prudential aspects of standing are
the prohibition against the assertion of "generalized grievances," the requirement that the
plaintiff must claim protection for his own interests, not those of someone else (i.e., no thirdparty standing), and the requirement that the "constitutional or statutory provision on which
the claim rests properly can be understood as granting persons in the plaintiff's position a
right to judicial relief." Id. at 499-500, 95 S. Ct. at 2205, 45 L. Ed. 2d at 355.
47. See supra notes 43-44 and accompanying text.
48. See, e.g., Baker, supra note 2, at 152 (stating that "the injury in fact criterion has
become the sine qua non of standing, which, once satisfied, usually preempts further concern
for causation and redressability"); Nichol, Rethinking Standing, supra note 40, at 73 (stating
that the "entire body of modern standing law has its roots in the concept of injury in fact");
/98/ Term, supra note 45, at 201 (stating that injury in fact, "and not infringement of a legal
interest, is the fundamental constitutional prerequisite for access to the federal courts"); see
also Valley Forge Christian College, 454 U.S. at 472, 102 S. Ct. at 758, 70 L. Ed. 2d at 709
(stating that article III requires, "at an irreducible minimum," that the litigant has himself
HeinOnline -- 18 Tex. Tech L. Rev. 530 1987
1987]
FEDERAL JURISDICTION
531
constitutional aspects of standing are found in the bifold causation
requirement, which was first appended to the injury-in-fact test in
the case of Linda R.S. v. Richard D.49 in 1973. To satisfy this dual
causal requirement, the plaintiff must demonstrate both that his
injury in fact is "fairly traceable" to the reprobated conduct and
that his harm will be alleviated by the requested relief. 50
suffered some actual or threatened injury); Gladstone, Realtors v. Village of Bellwood, 441
U.S. 91, 99, 99 S. Ct. 1601, 1607-08, 60 L. Ed. 2d 66, 76 (1979) (same); Warth v. Seldin,
422 U.S. at 498-99, 95 S. Ct. at 2204-05, 45 L. Ed. 2d at 354 (same).
Although article III, perhaps for want of a more available source, has always been considered
the textual fountainhead of standing theory, standing itself has over the years been a doctrine
of shifting and variable content. As recently as 1973, for example, a leading constitutional
scholar confidently declared that it is "no longer possible to conclude that injury is in fact a
constitutional prerequisite." Monaghan, Constitutional Adjudication: The Who and When, 82
YALE L.J. 1363, 1375 (1973); cf. Berger, Standing to Sue in Public Actions: Is It a Constitutional
Requirement?, 78 YALE L.J. 816, 840 (1969) (discussing the lack of long-standing historical
precedent for the standing doctrine); J. VINING, supra note 40, at 55-56 (noting the comparatively recent development in public-law litigation of the "standing" concept). Within a few
years of Professor Monaghan's declaration, however, the Supreme Court made it clear that
one of the minimum article III standing requirements was a palpable injury in fact. See, e.g.,
Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343, 354 (1975);
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37-39, 96 S. Ct. 1917, 1923-25, 48
L. Ed. 2d 450, 459-61 (1976).
49. 410 U.S. 614, 618, 93 S. Ct. 1146, 1149, 35 L. Ed. 2d 536, 541 (1973) (denying
standing because plaintiff mother could not demonstrate that her failure to receive childsupport payments was caused by state's refusal to prosecute father for nonpayment and because
enforcement of the state penal statute against father would not necessarily prompt him to
make the payments).
50. See, e.g., Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75
n.20, 80-81, 98 S. Ct. 2620, 2631 n.20, 2634-35, 57 L. Ed. 2d 595, 612 n.20, 615-16 (1978);
Simon, 426 U.S. at 41-43, 96 S. Ct. at 1925-26, 48 L. Ed. 2d at 462-63; Warth, 422 U.S. at
508, 95 S. Ct. at 2210, 45 L. Ed. 2d at 360; Linda R.S., 410 U.S. at 617-18, 93 S. Ct. at
1148-49, 35 L. Ed. 2d at 540-41. Although one eminent scholar has recently argued that the
redressability requirement mentioned, inter alia, in Duke Power Co. is actually "implicit" in
the general cause-in-fact requirement, see Currie, supra note 39, at 41 n.2, most jurisdictional
commentators have declared that redressability should be treated as the third distinct constitutional requirement and should not be subsumed within the general causation test, see, e.g.,
Baker, supra note 37, at 242 n.14; Nichol, Causation, supra note 40, at 199 (stating that
"[d)espite an occasional confusion of the [cause-in-fact and redressability) doctrines in judicial
opinions, both their aims and modes of analysis are distinct") (footnote omitted). On the
bifold causality requirement, see Allen v. Wright, 468 U.S. 737, 757-59, 104 S. Ct. 3315, 332829, 82 L. Ed. 2d 556, 573-75 (1984) (denying plaintiffs standing because their alleged injury
was not "fairly traceable" to the challenged regulation and because it was "entirely speculative"
that the requested remedy would alleviate the harm); Simon, 426 U.S. at 42-43, % S. Ct. at
1925-26, 48 L. Ed. 2d at 462-63 (finding injury in fact but denying standing because twopronged causality test not satisfied).
In noting the policy justifications for the Burger Court's constitutional standing doctrine,
HeinOnline -- 18 Tex. Tech L. Rev. 531 1987
532
TEXAS TECH LA W REVIEW
[Vol. 18:521
The Burger Court has consistently held to a strict reading of the
redressability requirement, thereby intimating that government actions
do not automatically and always affect public or private conduct. 51
The Fifth Circuit adhered to the Supreme Court's "strict redressability" precedents in Stewart v. Bernstein. 52 Stella Stewart, a medicaid
recipient, lived for about six months at the Kilgore Nursing Center,
a private nursing home located in Kilgore, Texas. 53 Then, in November of 1980, the administrator of the nursing home wrote to Stewart,
telling her that she would have to vacate the home within three
days.54 She alleged that she was forceably removed on the third day
and taken to a local hospital. 55
Stewart then filed suit in federal district court under the Medicaid
Act,56 the Civil Rights Act of 1871,57 and various state laws, seeking
damages and declaratory and injunctive relief against the Kilgore
Nursing Home, its administrator, and the commissioners of the Texas
Department of Human Resources and the Texas Department of
Health. 58 Stewart alleged that she had been involuntarily discharged
and evicted from the nursing home in violation of her federal
several commentators have implicitly suggested other reasons for the two separate parts to the
causation requirement. It has been argued, for example, that "[w)hat may be described crudely
as the conservative wing of the Court" has assimilated the injury-in-fact and cause-in-fact
requirements to the Baker v. Carr "personal stake" formula. Note, Article III Problems in
Enforcing the Balanced Budget Amendment, 83 COLUM. L. REV. 1065, 1074 n.36 (1983) (citing
Duke Power Co., 438 U.S. at 72, 98 S. Ct. at 2630, 57 L. Ed. 2d at 610) [hereinafter cited
as Note, Balanced Budget Amendment). For a description of the Baker v. Carr personal-stake
formula, see supra note 42. Other commentators have noted that the redressability factor of
the causation reqqirement would be superfluous if it merely required that judicial action must
be able to alleviate the plaintiff's harm. Hence the demand that the injury be judicially
redressable suggests not only that a court must be capable of dispensing relief, but also that
the court in dispensing the suggested relief must not transgress within the domain of the other
branches of government in violation of the principle of separation of powers. See Floyd, supra
note 40, at 864-66; Note, Balanced Budget Amendment, supra, at 1082. See also generally
Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 WIS. L. REV. 37
(analyzing the doctrine of standing from a separation of powers perspective).
51. See, e.g., Simon, 426 U.S. at 42-43, 96 S. Ct. at 1926, 48 L. Ed. 2d at 462-63;
Warth, 422 U.S. at 506, 95 S. Ct. at 2208-09, 45 L. Ed. 2d at 358-59; Linda R.S., 410 U.S.
at 618, 93 S. Ct. at 1148-49, 35 L. Ed. 2d at 541.
52. 769 F .2d 1088 (5th Cir. Sept. 1985).
53. Id. at 1089.
54. Id.
55. /d.
56. 42 U.S.C. § 1396 (1982).
57. 42 U.S.C. § 1983 (1982).
58. 769 F.2d at 1089.
HeinOnline -- 18 Tex. Tech L. Rev. 532 1987
1987]
FEDERAL JURISDICTION
533
statutory rights and her federal constitutional equal protection and
due process rights. 59 The district court eventually dismissed all of her
claims for failure to state a claim upon which relief could be granted,
the dreaded Federal Rule of Civil Procedure 12(b)(6) dismissal. 60
After first ruling that there had been no state action upon which
to ground a section 1983 civil rights action,61 the court addressed the
issue of article III standing. 62 Judge Goldberg commenced his analysis
with the standard invocation of the current tripartite constitutional
standard of injury in fact, cause in fact, and redressability.63 Judge
Goldberg then disposed of the claims against the state def(!ndants on
the redressability aspect of the constitutional standing doctrine.64 He
noted that as the district court had observed in its written order, the
plaintiff had conceded that even if the federal courts were to order
the state defendants to adopt all of the proposed procedures, " 'future
illegal discharges would still occur if the private nursing home ignored
these procedures, just as ... [Kilgore Nursing Center had] ignored
its existing responsibilities under [the current federal Medicaid regulations].' "65
The district court's order next cited the causation requirement
of Linda R.S. v. Richard D. as support for its conclusion that
plaintiff Stewart had no constitutional standing. 66 It would have been
more accurate for the district court to have quoted from Linda R.S.
a little farther along in that opinion, for given Judge Goldberg's
extensive discussion of the futility of Stewart's proposed remedies as
a prophylaxis for future misbehavior by nursing homes, the redressability factor of the Linda R.S. tripartite standing doctrine would
59. [d. In particular, the appellant contended that her involuntary discharge had been
based on "impermissible grounds as set forth in the federal Medicaid regulations ... and that
the state agencies had faciliated her discharge by failing to promulgate regulations requiring
private nursing homes ... to comply with the Medicaid Act and its implementing regulations."
[d. (citations omitted).
60 . [d. at 1089-90.
61. [d. at 1090-91.
62. [d. at 1091.
63. [d. (citing Valley Forge Christian College, 454 U.S. at 472, 102 S. Ct. at 758, 70 L.
Ed. 2d at 709).
64. [d.
65. [d. at 1091-92 (quoting district court order upon plaintiff's motion for reconsideration).
66. [d. at 1092 (cittng Linda R.S., 410 U.S. at 617-18, 93 S. Ct. at 1148-49, 35 L. Ed.
2d at 540-41).
HeinOnline -- 18 Tex. Tech L. Rev. 533 1987
534
TEXAS TECH LA W REVIEW
[Vol. 18:521
have been more apposite. 67 Nonetheless, given the understanding of
such scholars as Professor David Currie that the redressability factor
is at least implicit in the causation requirement, the district court
and the Fifth Circuit did not stray far in disposing of the standing
issue by finding a lack of sufficient causal nexus between the injury
and the government action. 68
The second important "standing" decision of this Survey period,
Star Satellite, Inc. v. City of Biloxi,69 concerns the much-confused
topics of "overbreadth" and third-party standing. On August 7,
1984, the city of Biloxi, Mississippi, passed a zoning ordinance that
restricted the operation of certain businesses characterized as "regulated uses. "70 The ordinance declared that "regulated use" establishments could not locate within one hundred feet of a residential
district or within five hundred feet of any other regulated use. 71 Also,
a "regulated use" establishment was forbidden to remain open past
twelve midnight and was forbidden to open before 10 A.M. Monday
67. See Linda R.S., 410 U.S. at 618, 93 S. Ct. at 1149, 35 L. Ed. 2d at 541 (describing
as "only speculative" the mother's claim that prosecution of the child's father for nonsupport
would prompt him to make support payments to mother for child's benefit).
68. For a discussion of Professor Currie's interpretation of the causation requirement,
see supra note 50. Also, without clear allusion, Judge Goldberg's opinion suggests some of
the same interrelations between "cause of action" and "standing" discussed by Professor
Currie. See supra note 39. Judge Goldberg, before noting that the Medicaid Act did not
contain an implied cause of action for persons in the plaintiff's situation, 769 F.2d at 1092·
93, stated that Stewart's "inability to demonstrate state action thus reflects a similar absence
of standing to assert her claims against the state appellees." [d. at 1092 (footnote omitted).
In his seminal discussion of staIiding, Professor Currie alleged that in addition to the article
III standing doctrines, the essence of the question of standing to sue was whether any
constitutional or statutory provision could be read as granting the aggrieved party a cause of
action. Currie, supra note 39, at 41-43. After noting that 42 U.S.C. § 1983 incorporated some
of the Supreme Court's "prudential" standing considerations (such as the prohibition of third·
party standing) and that section 1983 provides a federal remedy, or cause of action, to vindicate
federal rights, Professor Currie observed that such cases as Warth v. Seldin can best be
understood, since the plaintiffs in such cases did not possess any federal rights to be vindicated,
as denying standing because the plaintiffs had not been granted any cause of action by federal
statutory or constitutional provision. [d. at 45. Judge Goldberg's remark about Stewart's
lacking standing and a section 1983 cause of action is suggestive of the same sort of intertwining
between cause of action and standing treated by Currie in his seminal essay. Close attention
by all federal practitioners to the insightful observations in Professor Currie's brief essay
would be well rewarded in the production of clearer, more satisfactory "standing" decisions.
69. 779 F.2d 1074 (5th Cir. Jan. 1986).
70. [d. at 1077 & n.2. The ordinance-defined "regulated use" at issue was, predictably,
an adult book and movie store. [d.
71. [d. at 1077.
HeinOnline -- 18 Tex. Tech L. Rev. 534 1987
FEDERAL JURISDICTION
1987]
535
through Saturday and not at all on Sundays.72 Finally, no certificate
of zoning compliance or certificate of occupancy would be issued to
a "regulated use" establishment after a three-year period commencing
on the effective date of the ordinance. 73 This last detail not only
prohibited the establishment of new "regulated use" businesses in
residential or limited commercial zones but also prevented the sale
of existing establishments after the three-year period. 74
Star Satellite, an adult book and movie store, challenged the
constitutionality of the Biloxi ordinance in federal district court,
requesting declaratory and injunctive relief and damages. 75 The dis" trict judge found that Star Satellite only had standing to challenge
the restriction on opening-closing hours and the resale limitation. 76
On the merits, the district court denied Star Satellite's application
for a preliminary injunction. 77 Star Satellite appealed this denial. 78
The Fifth Circuit affirmed the district court. 79 Judge Williams,
for a unanimous panel, first declared that the ordinance affected
Star Satellite only with respect to the restriction on the hours· and
days of operation. 80 The court therefore found that Star Satellite had
standing to pray for the issuance of a preliminary injunction against
the time-and-day limitations. 81 Clearly, then, the Fifth Circuit felt
that there was an actual or threatened injury in fact to Star Satellite
from the enforcement of these time restrictions. 82 The district court
had found that Star Satellite had standing to challenge the resale
restrictions of the ordinance, but the Fifth Circuit pretermitted the
standing issue vis-a.-vis the resale prohibition, finding "no need to
resolve that issue at this preliminary injunction phase of the case;"83
but Star Satellite made a facial challenge to the entire zoning ordinance, thereby hoping to sidestep the "partial" standing found by
the district court. 84
72.
73.
74.
75.
76.
77.
78.
79.
SO.
S!.
82.
83.
S4.
Id.
Id.
Id.
Id. at 1078.
Id.
Id.
Id.
Id. at 108!.
Id. at 1078.
Id.
Id.
Id.
See id.
10
HeinOnline -- 18 Tex. Tech L. Rev. 535 1987
536
TEXAS TECH LA W REVIEW
[Vol. 18:521
The Fifth Circuit interpreted the challenge to the facial constitutionality of the ordinance as an attempt "to assert the rights of
third parties who may be affected by the ordinance but who are not
parties to this action. "85 Although it is certainly objectionable as a
matter of clear analysis, the Fifth Circuit probably had no choice
but to treat the question of jus tertii86 as a question involving some
special standing doctrine, for that has been the modern approach of
the Supreme CourtY Actually, however, jus tertii (like its subset
overbreadth) does not address article III standing (the question of
who has access to the courts-the issue of first-party standing), but
the quite different question of the range of issues open to adjudication
once the litigant gains access to the court (the question of "overbreadth facial challenge," or "constitutional jus tertii ").88
85. Id.
86. These Latin words provide "a convenient short-term expression" to describe the
constitutional rights of third parties. Sedler, Standing to Assert Constitutional Jus Tertii in
the Supreme Court, 71 YALE L.J. 599, 600 (1962). The "term [third-party standing) has begun
to take hold in the case law and academic commentary as a synonym for jus tertii standing."
Monaghan, supra note 35, at 278 n.6.
87. See, e.g., Singleton v. Wulff, 428 U.S. 106, 112-13, 96 S. Ct. 2868, 2873-74, 49 L.
Ed. 2d 826, 832-33 (1976); United States v. Raines, 362 U.S. 17,25-26, 80 S. Ct. 519, 52425,4 L. Ed. 2d 524, 531-32 (1960). As one eminent standing scholar has observed, the Supreme
Court's jus tertii doctrine "is analytically unsound because it considers the Question of
constitutional jus tertii in terms of 'standing.' " Sedler, The Assertion of Constitutional Jus
Tertii: A Substantive Approach, 70 CALIF. L. REV. 1308, 1309 (1982). Professor Henry
Monaghan essentially concurs with Professor Sedler's conclusion. See, e.g., Monaghan, supra
note 35, at 304 ·I).148.
88. See, e.g., Sedler, supra note 87, at 1315 & n.31, 1316-19; Monaghan, Overbreadth,
1981 SUP. CT. REV. I, 1 n.1 (stating that "[w)hat is at stake in overbreadth challenges is the
scope of the issues open to ... litigants"). Concerning the intersection of jus tertii and
overbreadth standing, distinctions can be made. In a true jus tertii case, actual third parties
are "related to the [litigant) and to the litigation in specific ways." P. BATOR, P. MISHKIN,
D. SHAPIRO & H. WECHSLER, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 191 (2d ed. 1973) [hereinafter cited as HART & WECHSLER); see also Monaghan, supra
note 35, at 278 n.5, 307 n.163; Rohr, supra note 40, at 437-42; Sedler, supra note 86, at 63345. In what are more loosely and generally considered cases of third-party standing, however,
only "hypothetical" third persons can be said to be "related" to the litigant. In other words,
there is no specific relationship between actual person,s-as there is, for example, between a
doctor and his patients-in a general jus tertii case; instead of an actual relationship, the
operative consideration in general jus tertii is that the litigant is °allowed to assert the rights
of "hypothetical" third parties who are not before the court and have no actual relation to
the litigant or the litigation. See Sedler, supra note 86, at 600-01; Rohr, supra note 40, at
398-99; Note, Standing to Assert Constitutional Jus Tertii, 88 HARV. L. REV. 423, 438-43
(1974). The similar concern of general jus tertii and overbreadth cases for the rights of strangerto-the-litigation third persons permits some commentators, this writer included, to taxonomize
overbreadth standing as simply one variety of "hypothetical" third-party standing. See, e.g.,
Sedler, supra note 86, at 612-16; Monaghan, supra note 35, at 282-86 & n.48, 316.
HeinOnline -- 18 Tex. Tech L. Rev. 536 1987
1987]
FEDERAL JURISDICTION
537
In the next paragraph of the opinion, Judge Williams entered
another champ clos of standing analysis by linking jus tertii standing
with the concept of overbreadth:
Because an overbroad statute may deter people from engaging in
constitutionally protected activity, courts have been willing to relax
to some extent traditional standing restrictions .... The exception
is limited, however. A statute's overbreadth "must not only be real,
but substantial as well, judged in relation to the statute's plainly
legitimate sweep." 89
To be fair, however, Judge Williams merely addresses, he does not
create, the difficulty, for it is the vastly confused and confusing jurisprudence of the Supreme Court that has both fostered the difficulties
surrounding overbreadth and jus tertii standing 90 and has mistakenly
treated these two types of standing as essentially distinct concepts.
First, Judge Williams's citation of Broadrick is pertinent; but
the Broadrick case itself may not be sound, for it posits a perhaps
untenable distinction between expression and conduct. 91 The full
passage of the Broadrick opinion partially quoted in Star Satellite
89. 779 F.2d at 1078 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908,
2918, 37 L. Ed. 2d 830, 842 (1973» (citation omitted).
90. See, e.g., Monaghan, supra note 88, at 23 (arguing that the Court is "apparently
confused about the [true) nature of the overbreadth doctrine"); Monaghan, supra note 35, at
316 ("Third party standing doctrine has developed largely without examination .... The Court's
invocation of prudential or discretionary limits, with a wavering overlay of special exceptions,
obscures troublesome questions deserving of closer attention.").
91. For criticisms of this arguably specious distinction between speech and conduct, see
generally Ely, Flag Desecration: A Case Study in "the Roles of Categorization and Balancing
in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975) (providing a doctrinal framework
for judicial resolution of free expression questions generally, while commenting on flag
desecration problems specifically); Emerson, First Amendment Doctrine and the Burger Court,
68 Calif. L. Rev. 422, 430-40 (1980) (discussing problems created by court-fashioned iests used
to help discriminate between conduct worthy of first amendment protection because it is
"expressive" and conduct not entitled to such protection because it is simply "action"); Farber
& Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First
Amendment Adjudication, 70 VA. L. REV. 1219 passim (1984) (analyzing the Court's great
difficulties in handling cases involving "hybrid regulations" and the public forum doctrine);
Hunter, Problems in Search of Principles: The First Amendment in the Supreme Court from
1791-1930, 35 EMORY L.J. 59, 92-93, 101-03 (1986) (discussing and criticizing the development
of a "speech vs. conduct" distinction in the early twentieth-century case law); Kalven, The
Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REv. I (reflecting on problems
arising when the distinction between speech and conduct is used to determine the scope of
protected speech when a public forum is involved).
HeinOnline -- 18 Tex. Tech L. Rev. 537 1987
538
TEXAS TECH LA W REVIEW
[Vol. 18:521
attempted to make a distinction between pure speech and conduct
(both "expressive conduct" and "nonexpressive conduct"). In Broadrick the Supreme Court declared that "overbreadth" and "chilling
effect" concerns have little application
as the otherwise protected behavior ... moves from "pure speech"
toward conduct and that conduct~even if expressive-falls within
the scope of otherwise valid criminal laws. . .. [P]articularly
where conduct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but substantial
as well, judged in relation to the statute's plainly legitimate
sweep.92
As the court observed in the Star Satellite case, the conventional
rationale for overbreadth standing is that laws which touch free
expression should be accorded different treatment because of the
potential "chilling effect" on the exercise of first amendment rights. 93
The Supreme Court has also been careful, however, to distinguish
between laws that by their own terms regulate expression and those
that merely have an incidental impact on expression. 94 The zoning
ordinance at issue in Star Satellite, of course, is of the latter sortviz., a regulatory act with incidental effects on free expression.
Whether considered in terms of overbreadth or jus tertii standing,
however, facial challenges to statutes, as Professor Henry Monaghan
has convincingly demonstrated, really entail not some sort of special
"fundamental rights" standing doctrine but two substantive principles
92. Broadrick, 413 U.S. at 615, 93 S. Ct. at 2917, 37 L. Ed. 2d at 842.
93. Star Satellite, 779 F.2d at 1078; see also Lewis v. New Orleans, 415 U.S. 130, 133·
34, 94 S. Ct. 970, 972·73, 39 L. Ed. 2d 214, 219·20 (1974) (holding that a state criminal
statute punishing abusive language violates the first amendment unless it is limited in application
to "fighting words," which by their very utterance tend to incite a breach of the peace);
Broadrick, 413 U.S. at 611-12,93 S. Ct. at 2915, 37 L. Ed. 2d at 839-40 (holding an Oklahoma
statute that prohibited state employees from actively engaging in partisan political activity,
except to express an opinion or vote, did not violate freedom of expression); Thornhill v.
Alabama, 310 U.S. 88, 97-98, 60 S. Ct. 736, 741-42, 84 L. Ed. 2d 1093, 1099-1100 (1940)
(holding that an Alabama statute banning without exception all picketing in a labor dispute
unconstitutionally invaded freedom of speech).
94. Compare Terminiello v. Chicago, 337 U.S. I, 69 S. Ct. 894, 93 L. Ed. 1131 (1949)
(declaring that state court had so broadly interpreted a disorderly conduct ordinance that the
ordinance thereby had a direct restrictive effect on freedom of expression); United States v.
Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947) (concerning the direct effect of
the Communications Act of 1934 on the free expression contained in picketing activities) with
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949)
(discounting the incidental effects of an antitrust statute that had been applied to picketing).
HeinOnline -- 18 Tex. Tech L. Rev. 538 1987
1987]
FEDERAL JURISDICTION
539
of constitutional litigation. 95 These two principles do not express any
special "standing" doctrine to be used in free expression cases but
merely build on traditional first-party standing in the first amendment
or fundamental rights context. 96 That is to say, once a party has
established that he has article III standing, the principal concern is
the scope of issues open to challenge by the litigant. 97 To answer this
concern, the two traditional principles of constitutional litigation
detected in the case law and expounded by Professors Monaghan
and Sedler are conscripted to demark the scope of inquiry.
The first of these principles may be denominated the "rule of
validity": the substantive constitutional right to be regulated by a
constitutionally valid rule; this operates as the right to make a facial
95. For a brief treatment of Professor Monaghan's views on overbreadth standing, see
infra note 10 1.
96. In his two seminal articles, Professor Monaghan has cogently examined the received
view of the overbreadth doctrine espoused by contemporary theorists:
The conventional account of overbreadth cases-in which litigants whose own conduct
is not constitutionally protected are nonetheless permitted to mount a constitutional
attack premised on the [free-expression) rights of parties not before the court-was
that a special third party standing rule had been established for first amendment
cases. In contrast to other rights, the first amendment was thought to free litigants
from the general limitations of as-applied challenges in permitting them to challenge
the "facial" validity of a statute by raising the "rights" of "hypothetical" third
parties.
Monaghan, supra note 35, at 282 (footnote omitted); see also Monaghan, supra note 88, at
1-2 (commenting on the overbreadth doctrine as used in the context of free-expression cases).
As Professor Monaghan further observed, however,
the special standing doctrine asserted by overbreadth theorists has only fragmentary
support in Supreme Court practice and is analytically unsound. [O)verbreadth
challenges can best be understood within the framework of conventional first party
standing theory. The special status of first amendment claims reflects the high degree
of means-end congruence required under substantive first amendment law, and not
any distinctive standing concept.
Monaghan, supra note 35, at 283; see also id. at 285 (concluding that the result would be
the same outside of the first amendment area whenever a close means-end fit is required by
the applicable substantive constitutional law); Monaghan, supra note 88, at 37-38 (commenting
that the overbreadth doctrine simply reflects the orthodox notion that any litigant can insist
on not being burdened by a constitutionally invalid rule).
General jus tertii challenges can also best be viewed as first-party standing claims operating
in tandem with a litigant's "own right to be regulated in accordance with a constitutionally
valid rule." Monaghan, supra note 35, at 282; see also supra note 88. As will become clear,
hypothetical third-party standing, properly conceived, is nothing other than conventional firstparty standing linked with the two principles of validity and severability. which together delimit
the scope of issues available to be argued by the litigant. See infra text accompanying notes
100-05.
97. Monaghan, supra note 35, at 278 & n.6.
HeinOnline -- 18 Tex. Tech L. Rev. 539 1987
540
TEXAS TECH LA W REVIEW
[Vol. 18:521
challenge, and this operation discloses its close kinship with hypothetical third-party and overbreadth standing. 98 Under the influence
of Professor Monaghan's scholarship, the Supreme Court has recently
underscored the importance of this traditional principle of constitutional adjudication that one can never be regulated by an invalid
rule: "Overbreadth challenges are only one type of facial attack. A
person whose activity may be constitutionally regulated nevertheless
[can] argue that the statute under which he is convicted or regulated
is invalid on its face."99
In keeping with the traditional notions of article III first-party
standing,IOO the rule of validity should not be seen as a general
98. See HART & WECHSLER, supra note 88, at 88 (Supp. 1981) (linking the possibility of
facial challenges with the rule that "a defendant in a coercive proceeding (cj. a plaintiff
in an anticipatory one) always has standing to challenge the validity of a statute in the terms
in which it was applied to him"); see also Smith v. Cahoon, 283 U.S. 553, 562-63, 51 S. Ct.
582, 585, 75 L. Ed. 1264, 1272 (1931) (holding that where statute is invalid on its face and
unconstitutional attempt is made to enforce penalties, one failing to make required application
may complain of an anticipated improper or invalid action in administration of statute requiring
a license); Montana Co. v. St. Louis Mining & Milling Co., 152 U.S. 160, 169-70, 14 S. Ct.
506, 508-09, 38 L. Ed. 398, 400 (1894) (holding that a statute authorizing court to order
inspection of mine to protect petitioner's rights not invalid as a taking of property without
due process of law).
99. New York v. Ferber, 458 U.S. 747, 768 n.21, 102 S. Ct. 3348, 3360 n.21, 73 L. Ed.
2d liD, 1130 n.21 (1982) (citing Terminiello v. City of Chicago, 337 U.S. 1,5,69 S. Ct.
884, 896, 93 L. Ed. 1131, 1137 (1949); Monaghan, Overbreadth, 1981 SUP. CT. REv. I, 1014). For thorough discussions of the rule of validity, see Monaghan, supra note 35, at 28283, 285-86, 290; Monaghan, supra note 88, at 3-4, 8, 9-12.
100. The long-standing constitutional orthodoxy, until comparatively recent times, has been
that the "prime object of all litigation is to establish a right asserted by the plaintiff . . . .
[Hje is bound to show an interest in the suit personal to himself, and . . . he must generally
aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens."
Tyler v. Judges of the Court of Registration, 179 U.S. 405, 406, 21 S. Ct. 206, 207, 45 L. Ed.
252, 252 (1900). Hence, the traditional first-party standing rule, which also served to set the
scope of issues open to the litigant, mandated that a party could only advance his own personal
rights in a lawsuit, not the rights of strangers to the litigation. See Yazoo & M.V. R.R. v. Jackson
Vinegar Co., 226 U.S. 217, 219-20, 33 S. Ct. 40, 41, 57 L. Ed. 193, 195 (1912) (declaring that
"this court must deal with the case in hand, and not with imaginary ones"); United States ex
rei. Turner v. Williams, 194 U.S. 279, 292, 24 S. Ct. 719, 723, 18 L. Ed. 979, 984-85 (1904)
(rejecting appellant's first amendment argument against constitutionality of the Immigration Act
of 1903 because by that statute he had been excluded from entry to United States and thus
he had not become "one of the people to whom these [rights] are secured by our Constitution");
California v. San Pablo & T.R.R., 149 U.S. 308,314, 13 S. Ct. 876, 878, 37 L. Ed. 747, 748-49
(1883) (stating that the "duty of ... every judicial tribunal [ ] is limited to determining rights
of persons or of property which are actually controversed in the particular case before it");
Mississippi & M.R.R. v. Ward, 67 U.S. (2 Black) 485,492,17 L. Ed. 311, 314 (1863) (asserting
HeinOnline -- 18 Tex. Tech L. Rev. 540 1987
1987]
FEDERAL JURISDICTION
541
"anything goes" standard by which a litigant can challenge any and
every statute throughout its length and breadth. Rather, the rule of
validity merely demands that the statute or regulation actually applied
be valid; \01 and in order to determine what rule or statute is actually
applied, one must understand and invoke the second constitutional
principle: the doctrine of separability in the application. \02 The rule
of separability is merely the accepted judicial technique of narrowing
the literal scope of a statute so that in its application it will not cross
constitutional bounds. \03
that a plaintiff cannot maintain a case "unless he shows that he has sustained, and is still sustaining, individual damages"). Clearly, then, the traditional understanding of constitutionallitigation stands athwart the seldom court-approved, but generally lauded by the liberal academic
community, notion of pure third-party standing. The first case clearly to approve a distincitve
legal theory of jus tertii standing was the Supreme Court's opinion in Barrows v. Jackson, 346
U.S. 249, 255-59, 73 S. Ct. 1031, 1034-37,97 L. Ed. 1587, 1595-97 (1953). Scholars have been
much more eager to embrace expansive notions of standing than has the Supreme Court and
have generally displayed little diffidence in so doing. See, e.g., authorities cited supra note 40.
101. As Professor Monaghan has perceptively observed, "overbreadth challenges are best
understood as invoking the conventional principle that a litigant's conduct may be regulated
only in accordance with a [constitutionally] valid rule." Monaghan, supra note 35, at 285; see
also Note, The First Amendment Overbreadth Doctrine, 83 HARv. L. REV. 844, 848 (1970)
("[Overbreadth] must be distinguished from the claim that the same application of a statute
which burdens the complainant also burdens third parties not before the Court, and that as
to them the statute works an unconstitutional result. ... As a theoretical matter the claimant
is asserting his own right not to be burdened by an unconstitutional rule of law, though
naturally the claim is not one which depends on the privileged character of his own conduct. ")
(footnotes omitted). In short, overbreadth standing provides nothing more than a restatement
of the orthodox notion that one always has the right to be judged by a constitutional law;
and the only new twist to this traditional rule in the overbreadth context is that provided by
substantive first amendment law. See id. (declaring that "[w]hat differentiates a first amendment
case from other cases is not a special standing principle but the substantive content of the
applicable constitutional law"). Moreover, if one has article III standing, then the litigant
should always be able to assert this general claim to be judged by a constitutional regulation
or statute-i.e., under traditional constitutional theory (pre-Barrows v. Jackson), the rule of
validity is never beyond the range of issues a litigant can assert. See, e.g., Sedler, supra note
87, at 1322-23 (arguing that cases appearing to involve the assertion of third-party rights or
overbreadth actually involved the rule of validity).
102. For an authoritative general treatment of separability, see Stern, Separability and
Separability Clauses in the Supreme Court, 51 HARv. L. REV. 76 (1937).
103. See, e.g., Ulster County Court v. Allen, 442 U.S. 140, 155,99 S. Ct. 2213, 2223, 60
L. Ed. 2d 777, 790 (1979); United States v. Raines, 362 U.S. 17, 23 n.4, 805 S. Ct. 519, 525
n.4, 4 L. Ed. 2d 524, 531 n.4 (1960); Heald v. District of Columbia, 259 U.S. 114, 122-23,
42 S. Ct. 434, 435, 66 L. Ed. 852, 854-55 (1922). See generally Monaghan, supra note 88, at
5 (addressing the litigant's right to challenge rules as facially unconstitutional); Rohr, supra
note 40, at 401-04 (discussing causation and separability). Professor Monaghan has provided
the most illuminating description of the process of inseparability, which, by definition, is the
HeinOnline -- 18 Tex. Tech L. Rev. 541 1987
542
TEXAS TECH LA W REVIEW
[Vol. 18:521
The validity and inseparability rules are intimately connected,
for it is the narrowed statute that is examined for validity in its
application to the litigant. 104 Not surprisingly, therefore, when a
statute is held to be inseparable, the litigant will most often succeed
in his claim that he is being judged by an invalid rule. 105 Moreover,
there is an important subrule to the rule of separability, which,
because of the scholarly attention to the case of Yazoo & Mississippi
Valley Railroad v. Jackson Vinegar CO.,I06 may appropriately be
styled the" Yazoo presumption. "107 In making an "as applied" or a
facial challenge to a statute or regulation, the litigant in each instance
is merely challenging the constitutionality of the regulation actually
levied against him; lOS and the rule construed in either an "as applied"
or facial challenge is the rule as it comes to the federal court
appropriately narrowed. 109 The Yazoo presumption obtains, in a
certain limited class of cases, when the rule comes to the court devoid
obverse of separability: the premise inherent in any judicial conclusion that a statute can be
narrowed in its application.
The root idea of inseparability is clear enough. Many statutes are susceptible to both
valid and invalid applications. Sometimes, as a matter of construction, the statute
is held to be "inseparable" -that is, a nullity unless good in all of its reasonable
and foreseeable applications. In these circumstances the litigant is permitted to attack
the statute without regard to the quality of his own conduct. A holding of inseparability occurs most typically when the court concludes that, given the nature or
range of the act's invalid applications, the legislature would not want the statute to
stand at all, and, less frequently, when the court is simply unable to restructure the
statute so as to sever the valid from invalid applications.
Monaghan, supra note 35, at 290 n.75.
104. Monaghan, supra note 88, at 9-10.
105. See, e.g., Bachellar v. Maryland, 397 U.S. 564, 571, 90 S. Ct. 1312, 1316,25 L. Ed.
2d 570, 576 (1970); Williams v. North Carolina, 317 U.S. 287, 291-92, 63 S. Ct. 207, 209-10,
87 L. Ed. 2d 279, 282 (1942); Trade-Mark Cases, 100 U.S. 82, 98-99, 25 L. Ed. 550, 553
(1880); United States v. Reese, 92 U.S. 214, 221, 23 L. Ed. 563, 565-66 (1875).
106. 226 U.S. 217, 33 S. Ct. 40, 57 L. Ed. 193 (1912).
107. For scholarly commentary on the Yazoo case and its explication of the proper
methodology to be used in constitutional litigation, see HART & WECHSLER, supra note 88, at
191-92, 196; Monaghan, supra note 35, at 277-78, 283-84, 288-89; Monaghan, supra note 88,
at 6-7; see also id. at 12 n.49 (referring to the federal indulgence of a state statute as separable
as the" 'Yazoo' presumption"); Sedler, supra note 86, at 602 (discussion of Yazoo case).
108. For discussions of the similarity, if not coextensiveness, of "as applied" and "facial"
challenges, see HART & WECHSLER, supra note 88, at 590-94; Monaghan, supra note 35, at
283; Sedler, supra note 87, at 1323.
109. See Monaghan, supra note 35, at 283 (noting that in a facial challenge, "the 'face'
of the rule is itself the product of interpretation"); Monaghan, supra note 88, at 3 (stating
that "the litigant's [facial) challenge is to the statute in operation, including the interpretive
gloss placed on it; and in general the interpretive process can operate to narrow the statute").
HeinOnline -- 18 Tex. Tech L. Rev. 542 1987
1987]
FEDERAL JURISDICTION
543
of any narrowing or "severed" construction. Hence, in certain cases,
the Yazoo presumption can make the difference between success or
failure for the litigant.
Because so many scholars have treated the Yazoo case as the
paradigmatic instance of "presumed narrowing,"IJO the case warrants
repeating here. A claimant brought an action in a Mississippi state
court against the Yazoo Railroad Company pursuant to a state statute
that required a shipping company" 'to settle all claims for lost or
damaged freight . . . within sixty days from the filing of written
notice of the loss or damage with the [company's] agent.' "111 The
plaintiff won his judgment in the state court of first instance and
prevailed on the appeal taken by the railroad to the highest court
for such actions in Mississippi, the county circuit court. 112 On appeal
to the United States Supreme Court, the railroad company alleged
that because the literal sweep of the statute's language penalized the
failure to settle even unjustifiable claims, the statute comprehended
conduct protected by the due process and equal protection clauses
of the fourteenth amendment. ll3 Neither the state court of first
instance nor the Hinds County Circuit Court had attempted to delimit
or define the statute's ambit, thereby lending some plausibility to the
railroad company's complaint. 114 In response, however, the Supreme
Court declared:
[I]t is not open to the railroad company to complain on that
score. It has not been penalized for failing to accede to an excessive
or extravagant claim, but for failing to make reasonably prompt
settlement of a claim which upon due inquiry has been pronounced
just in every respect. Of course, the argument to sustain the
contention is that, if the statute embraces cases such as are
supposed, it is void as to them, and, if so void, is void in toto.
But this court must deal with the case in hand, and not with
imaginary ones. [A]s applied to cases like the present, the statute
is valid. How the state court may apply it to other cases, whether
its general words may be treated as more or less restrained, and
110. See authorities cited supra note 107.
III. 226 U.S. at 218, 33 S. Ct. at 40, 57 L. Ed. at 194. (quoting 1908 Miss. Laws, No.
205, ch. 196).
112. [d.
113. [d. at 219, 33 S. Ct. at 41, 57 L. Ed. at 194-95.
114. [d. at 219-20, 33 S. Ct. at 41, 57 L. Ed. at 194-95.
HeinOnline -- 18 Tex. Tech L. Rev. 543 1987
544
TEXAS TECH LA W REVIEW
[Vol. 18:521
how far parts of it may be sustained if others fail, are matters
upon which we need not speculate now. 115
Since the state statute had come to the Supreme Court innocent
of any saving construction by the Mississippi courts, the Supreme
Court, in applying the traditional rule that a court has broad power
to construe a statute in order to avoid constitutional difficulties,
must have presumed that the statute could have been narrowed in
the necessary case, i.e., a case in which the claimant, not the statute,
demanded the swift settlement even of an unjustifiable or frivolous
claim. This, then, is the Yazoo presumption: the Supreme Court's
willingness to "presume that the state statute is separable; that is,
that the state court has fixed the statute's boundary ... within a ...
line separating legitimate from illegitimate exercises of state power." 116
The rules of validity and separability and the Yazoo presumption
were important to the Star Satellite case and were deftly applied,
even though not recognized by name, in Judge Williams's opinion.
Although the Fifth Circuit opinion in Star Satellite manifests an
apparent unawareness that overbreadth standing is merely a subset
of hypothetical third-party standing, and although it also manifests
an equal incognizance of the substantive nature of hypothetical thirdparty standing and overbreadth standing,117 the court is at pains to
face both overbreadth and third-party standing issues as they relate
to free-expression concerns. The court therefore points out that
whether conceived in terms of overbreadth or third-party standing,
a statute can be saved by the appropriately narrowed application of
the statutory prohibition. liS
First, the Fifth Circuit recognized through its citation of Broadrick that the Supreme Court has generally made distinctions between
laws that regulate the content of speech and ordinary criminal or
regulatory laws that may have incidental effects on free expression
interests: 119 "The ordinance before us does not present in its overall
115. [d. at 219-20, 33 S. Ct. at 41, 57 L. Ed. at 195.
116. Monaghan, supra note 88, at 7 (footnote omitted).
117. For the constitutionally substantive judgments inherent in what federal courts often
describe as merely standing issues of the overbreadth or third-party variety, see Monaghan,
supra note 35, at 285; Monaghan, supra note 88, at 4-5, 30; Sedler, supra note 87, at 132627.
118. 779 F.2d at 1078-79.
119. [d. at 1078; see Sedler, supra note 86, at 612-26 (citing and analyzing cases that make
HeinOnline -- 18 Tex. Tech L. Rev. 544 1987
1987]
FEDERAL JURISDICTION
545
application substantial restraints upon First Amendment liberty. The
ordinance, indeed, does not even implicate First Amendment rights
for some regulated uses."120 The Fifth Circuit is here maintaining,
correctly, that if a rule does not implicate a broad range of impermissibly inhibitory applications to first amendment interests, then the
litigant should not be able to maintain a constitutional challenge to
the statute predicated on overbreadth standing. 121 In short, that the
this distinction); Sedler, supra note 87, at 1310 (noting that "the Court has found the substance
of the challenged law important, and has distinguished between ordinary criminal and regulatory
laws and laws that 'by their terms restrict expression' "); Monaghan, supra note 88, at 28-29.
"Equally important, overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct." Broadrick,
413 U.S. at 613, 93 S. Ct. at 2917, 37 L. Ed. 2d at 841; see also supra note 94 and
accompanying text.
120. 779 F.2d at 1078; see New York v. Ferber, 458 U.S. 747, 771, 102 S. Ct. 3348, 3362,
73 L. Ed. 2d 1113, 1132 (1982) (declaring that state courts are not required to hear overbreadth
claims unless the rule or regulation "reaches a substantial number of impermissible applications"); Monaghan, supra note 88, at 28 (stating that despite distinctions between speech and
conduct, "the core point remains-the Court will be hostile to facial condemnation of statutes
whose central focus is prohibition of ... harms unrelated to the content of ... expression ....
This hostility, moreover, is not mitigated merely because such statutes can be applied to a
rather disparate variety of constitutionally protected expression")"(footnote omitted); see also Sedler,
supra note 86, at 615-16 (examining the rule of validity, the Tyler rule on asserting one's own
personal rights, and third-party standing analysis-all as properly understood in light of the
separability doctrine; all these concepts are applied to rules and regulations of the nonexpression variety); Sedler, supra note 87, at 1323-24 (same).
121. Monaghan states:
Broadrick illustrates that simply because one or several provisions of a complex act
... are involved in litigation ... cannot mean that every ... subsection of the act
... is thereby implicated on some constitutionally based inseparability premise ....
[O)verbreadth simply cannot be sensibly understood to denote a special rule against
restructuring complex regulatory provisions to accord with applicable constitutional
rules ....
Monaghan, supra note 88, at 36. To be sure, the Broadrick rule, concerning the inapplicability
of overbreadth to conduct-focused statutes not touching a broad spectrum of constitutionally
protected activity, can be read as a product of the Supreme Court's confusion concerning the
true nature of the overbreadth doctrine. See id. at 23-24 (explaining that, apparently "confused
about the nature of the overbreadth doctrine," the Supreme Court "has formulated various
limiting devices," one of which is the idea that overbreadth analysis has no role to play where
the litigants are "challenging conduct-focused statutes unlikely to generate an appreciable range
of invalid applications to expressive conduct"). But it can just as easily be explained as a
correct understanding of the overbreadth doctrine as applied in light of the rule of separability,
that is, as a recognition that separability is possible in the application of a statute unless the
statute suggests so many invalid applications that attempting to narrow it would be a vain
and fruitless task. If the statute does, under the Ferber rubric, potentially entail "a substantial
number of impermissible ap·plications," then the "substantial number" suggests actual nonseverability or the Sisyphean hopelessness of even attempting to sever.
HeinOnline -- 18 Tex. Tech L. Rev. 545 1987
546
TEXAS TECH LA W REVIEW
[Vol. 18:521
Biloxi zoning ordinance does not restrain a substantial spectrum of
expressive activities connotes that the zoning scheme is directed at
regulatory activities clearly within the state police power and also is
a separable or "narrowable" ordinance.
This recognition leads naturally to the next point in the opinion,
where Judge Williams, to be both precise and safe, also addresses
the standing issue from the vantage of jus tertii standing: "Third
party standing is also not permitted when a potentially overbroad
statute is subject to a narrowing construction. "122 Thus, the court
recognized that the assertion of hypothetical jus tertii is not permitted
for a separable statute, for as explained earlier, the traditional Tyler
approach to constitutional litigation mandates that one has standing
to raise only his own first-party rights,l23 unless there has been a
determination of inseparability, which determination then mandates
application of the rule of validity to the literal reach of the act. l24
Judge Williams then moved to the next logical step in the analysis
by applying the "Yazoo presumption," though not by name, when
he declared that the "sweep of this ordinance is subject to state
interpretation." 125 Star Satellite objected on appeal, however, that
the Mississippi Supreme Court could not be relied upon to provide
a constitutionally narrowed application of the statute, arguing that
the "Mississippi courts will choose, instead, to place this responsibility on the [state] legislature."I26 As noted earlier, this case arose
in federal district court; therefore, it was proper for Judge Williams
implicitly to indulge the Yazoo presumption by observing that the
Mississippi Supreme Court "can ascertain the intent of the legislature
and impose a reasonable construction upon a statute to save it from
unconstitutionality."127 As the Yazoo case itself makes clear, when
the statute comes from the highest court of the state bare of any
limiting construction, the reviewing federal court should indulge the
presumption that the state court, in the proper case, will separate
the goats from the sheep by excising, in the application, the offending
122. 779 F.2d at 1078.
123. See supra note 100.
124. See supra notes 101-05 and accompanying text; Sedler, supra note 86, at 608; Sedler,
supra note 87, at 1322-24.
125. 779 F.2d at 1078.
126. [d. at 1079.
127. [d.
HeinOnline -- 18 Tex. Tech L. Rev. 546 1987
1987]
FEDERAL JURISDICTION
547
provlSlons of the regulation. 128 By cognate reasoning, the same presumption should apply when the case has arisen in federal district
court, for in that case, the state courts have clearly had no chance
to narrow the statute in the case at bar since it came to the federal
reviewing court not from the state judicial system but from the lower
federal courts. 129
In conclusion, then, one may justly praise this Fifth Circuit
panel for implicitly applying the true understanding of third-party
and overbreadth standing analysis to the Biloxi zoning ordinance.
The court properly upheld the district court's denial of standing to
challenge the resale provisions and other provisions in the ordinance
that did not directly affect Star Satellite's own first-party rights
through its use of the "Yazoo presumption," thereby recognizing
that when a statute is potentially separable, a litigant is confined to
challenging only those portions of the regulation that "pinch" him
personally.130 Although standing has become a polychromatic term,
128. See Yazoo, 226 U.S. at 219-20, 33 S. Ct. at 41, 57 L. Ed. at 195; see also Monaghan,
supra note 35, at 283-84 & n.31; Monaghan, supra note 88, at 6-8.
129. Cf. Monaghan, supra note 88, at 26. The Yazoo presumption is usually not necessary
when a case comes to the Supreme Court from the highest state court, for in such cases the
state court most often has construed and narrowed the potentially objectionable state rule in
applying it to the litigant at bar, and the Supreme Court is thus restricted only to a consideration
of that state court's construction of the state rule and whether it satisfies relevant constitutional
standards. [d. at 26, 29. Indeed, the state courts have the primary responsibility of demonstrating
that a constitutionally unobjectionable interpretation of the statute can be devised through the
narrowing-in-the-application process. See Monaghan, supra note 35, at 290 n.78 (stating that
"[w)hether a state statute is separable is a matter for the state courts") (citing Exxon Corp.
v. Eagerton, 462 U.S. 162, 196-97, 103 S. Ct. 2296, 2309, 76 L. Ed. 2d 497, 514 (1983);
Metromedia, Inc. v. San Diego, 453 U.S. 490, 521 n.26, 101 S. Ct. 2882, 2889 n.26, 69 L.
Ed. 2d BOO, 823 n.26 (1981»; Monaghan, supra note 88, at 21-22, 29-30; Rohr, supra note
40, at 403 n.41; Sedler, supra note 86, at 601 n.6, 608; Sedler, supra note 87, at 1327-28
nn.62 & 63.
One proviso to the application of the" Yazoo presumption" has been noted by Professor
Monaghan; that is, the presumption should only be applied "so long as a valid and plausible
construction of the statute is apparent in the case at bar," Monaghan, supra note 35, at 284
n.31, and not when" 'the possibility of a limiting construction appears remote,' " Monaghan,
supra note 88, at 26 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S. Ct.
2268, 2276, 45 L. Ed. 2d 125, 135 (1975»; see also Sedler, supra note 87, at 1327 n.62.
130. Although Judge Williams did not expressly declare that the Biloxi zoning ordinance
lent itself to a plausible limiting construction, he had earlier in the opinion stated that the
ordinance did "not even implicate First Amendment rights for some regulated uses." 779 F.2d
at 1078. He also observed that there were "many locations in Biloxi unaffected by the
ordinance." [d. This implicitly suggests that the proviso to the proper application of the Yazoo
presumption was met in the case at bar, i.e., that the statute did not reach an inordinately
HeinOnline -- 18 Tex. Tech L. Rev. 547 1987
548
TEXAS TECH LA W REVIEW
[Vol. 18:521
the Fifth Circuit has wisely pierced the fashions in standing analysis, 131
for such current notions cannot disguise the cogent reasons for
regarding overbreadth and jus tertii not as unique or special standing
doctrines, but merely as a rephrasing of the traditional legal rule
that a litigant has a right to be judged under a valid law, which law
is to be narrowed in the application, if at all possible.
impermissible range of applications and therefore was subject to a possible and plausible
narrowing construction. See Monaghan, supra note 88, at 34 (arguing that a state court cannot
"be expected to invalidate the entire act on inseparability grounds simply because of a few
marginal invalid applications" and that therefore the federal reviewing court "was right in
not permitting the offending aspects of the statutory scheme to condemn the statute in its
entirety") (citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830
(1973».
131. See Monaghan, supra note 88, at 13 (noting that modern academicians tend to believe
that the essence of overbreadth analysis "inheres in an assertion of constitutionally imposed
limits on the power of courts to narrow statutes in the process of applying them"). For
examples of this erroneous modern theory of standing, see L. TRIBE, supra note 40, § 12-26;
Shaman, The First Amendment Rule Against Overbreadth, 52 TEMPLE L.Q. 259 (1979);
Wormuth & Mirkin, The Doctrine of the Reasonable Alternative, 9 UTAH L. REV. 254 (1964).
HeinOnline -- 18 Tex. Tech L. Rev. 548 1987