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Response or Comment

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Publication Information

86 Tex. L. Rev. See Also 1 (2007-2008)


In A Theory of Justiciability, Professor Jonathan Siegel provides an insightful functional analysis of justiciability doctrines. He well demonstrates that justiciability doctrines are ill suited to serve certain purposes-for example, ensuring that litigants have adverse interests in disputes that federal courts hear. Professor Siegel proceeds to identify what he believes to be one plausible purpose of justiciability doctrines: to enable Congress to decide when individuals with "abstract" (or "undifferentiated") injuries may use federal courts to require that federal law be enforced. Ultimately, he rejects this justification because (1) congressional power to create justiciability where it would not otherwise exist proves that justiciability is not a real limit on federal judicial power, and (2) Congress should not have authority to determine when constitutional provisions are judicially enforceable because Congress could thereby control enforcement of constitutional limitations on its own authority. Thus, he rejects a "private rights" model of federal court adjudication and concludes that federal courts have power to act so long as they are passing on the legality, not the wisdom, of political decisions.

In this brief Comment, I consider Professor Siegel's argument that congressional power to generate justiciability demonstrates the purposelessness of justiciability doctrines. First, I question whether congressional power to generate justiciability demonstrates that justiciability is an ineffective limit on federal power. Insofar as lawmaking procedures limit congressional power to act, congressional rather than judicial power to generate justiciability where it would not otherwise exist may demonstrate the very limits of justiciability. If indeed justiciability is an effective limit on federal power, I question whether Professor Siegel ultimately should dismiss as a justification for justiciability doctrines the one plausible purpose he identifies: justiciability doctrines afford Congress control over judicial enforcement of federal law, the violation of which, absent congressional action, causes only undifferentiated or abstract injury.


Reprinted with permission of Texas Law Review.

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