Mootness as a strategy to maintain unconstitutional regulations In the U.S. Supreme Court (SCOTUS) arguments for New York State Rifle &amp; Pistol Association Inc. v. City of New York almost all time seemed to be devoted to the question of mootness. This case is a challenge to New York City's previous regulations preventing people with premise-licenses for guns from traveling outside the city with their guns. The primary challenge was centered on the ability of gun owners to take their guns to second homes or shooting ranges outside the city. In a five-year process, the City of New York continued to defend the law and won at the appellate court level. The plaintiffs appealed to SCOTUS and were granted certiorari. Once SCOTUS granted certiorari, New York City and the State of New York worked together to eliminate the regulations and placed some new regulations at the state level as well as creating state-level preemption of local regulations. The City of New York argued that with the elimination of the regulations, the case was moot and any challenge of the new regulations was a new conflict that would need to work its way through the courts. Plaintiffs argue that the case is not moot and SCOTUS should rule on the merits of the case, including declaring the previous regulations unconstitutional. Defendants argue that the case is moot and there is no need to rule on the merits. My understanding is that if SCOTUS declares the conflict to be moot then it will remand the case to the lower courts to reverse or vacate the judgments. An argument can be made that the State of New York and New York City would not have changed their regulations had SCOTUS refused to review the case. Following that logic, New York City got an extra five years of a seemingly unconstitutional regulation (in the transcript counsel for NYC agreed that some of the reasons for their regulation were not sound). If SCOTUS grants NYC's requests in their argument then this case goes away and a new case has to be started regarding the new regulations. Though the precedent of this particular case may go away, the legal standard established by the second circuit seems to be freely available to any new cases. If SCOTUS ruled the regulations unconstitutional then they would also be setting a new legal standard upon which such regulations would be weighed. What is to prevent municipalities from implementing mootness as a strategy to maintain unconstitutional regulatory structures? EDIT to address comments and a vote to close Gun-related cases, whether second amendment or commerce-clause related, have generated significant circuit splits. Significantly, the Supreme Court has not taken cases designed to end the splits. The second circuit has been seen as friendly to gun-control efforts. That court upheld a ban on large capacity magazines and semiautomatic assasult weapons; a case that SCOTUS declined to review. Additionally, the second circuit also upheld New York's concealed carry law's "proper cause" requirement which SCOTUS declined to review despite a circuit split. It had been 10 years since SCOTUS had agreed to review a second-amendment related case. Because New York is in the second circuit, and the second circuit has been friendly to gun control efforts in past rulings and SCOTUS has not taken a second amendment related case even when circuits have split, it's not completely unreasonable to assume that New York felt confident in it ability to retain their unique regulation. Since the Heller ruling, there has been a strategy by governing bodies to avoid SCOTUS review of second-amendment related cases. For this particular law, there's significant mention of New York City's efforts to avoid SCOTUS review in this case: New York Times: "Fearing Supreme Court Loss, New York Tries to Make Gun Case Vanish" Washington Post: "New York eased gun law hopeful Supreme Court would drop Second Amendment Case..." Slate: "The Supreme Court's Second Amendment Revolution May Have to Wait" And, finally, NYC Rules proposal to amend the Premise Handgun License Rules specifically mentions SCOTUS' acceptance of this particular case in their desire to change the rules. It's not unreasonable to argue that governing bodies located within gun-control-friendly circuits have counted on positive outcomes at the circuit level and lack of review by SCOTUS and governing bodies within circuits that are not gun-control-friendly have withheld appeals to SCOTUS to avoid having laws struck down in a way that would have a nationwide impact. I did not want this to be about gun control, but, perhaps, this is unique to gun control jurisprudence. I'm truly curious about an overall legal strategy of using the judicial system and mootness to implement regulations in a way so as to avoid SCOTUS review as long as possible by using a strategy as follows: 1) Implement regulation in a circuit friendly to the governing body's position so as to avoid preliminary injunctions 2) Allow the regulation to remain through whatever level of appeal remains friendly 3) Once accepted for review by a potentially unfriendly appeals court, rescind the regulation and look for a declaration of mootness 4) Implement a similar enough regulation to satisfy the governing body but different enough to cause a "new conflict" to exist and start again at step 2 Until the circuit splits are resolved by SCOTUS then it is likely that more cases such as this will arise. The question remains: Other than SCOTUS settling the issue, what prevents governing bodies from using mootness as a strategy to maintain unconstitutional regulations?
I guess the meat of your question is: If a city enacts an unconstitutional ordinance, can it evade judicial review by repealing the ordinance and arguing for mootness once the judicial proceeding reaches to a point of potential disadvantage, and reenacting the same or a very similar ordinance once the judicial proceeding is dismissed? I don't know where the bright line is (maybe SCOTUS hasn't drawn a clear line yet), but at least there has been a case in which the SCOTUS rejected the mootness argument by a city that repealed the ordinance at issue during appeal: City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). Two parts of the city's ordinance were at issue: (1) the language of "connections with criminal elements" and (2) "the age restriction." On appeal, the Fifth Circuit declared (1) unconstitutional but upheld (2). The city then repealed (1) and, on appeal to the SCOTUS, argued that the issue of (1) was moot. The mootness argument was rejected. The rejection argument was very short as presented in section I of the majority opinion: It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise, rather than the existence, of judicial power. [Footnote 10] In this case, the city's repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated. [Footnote 11] The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court's judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding. Footnote 11 might be a critical fact in rejecting the mootness argument: Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20. Therefore, I think, if a city repeatedly employs your proposed strategy, the SCOTUS is unlikely to declare the case moot. EDIT: As pointed out by "Just a guy", the mootness part of City of Mesquite is about voluntary cessation, which is a kind of strategy concomitant with mootness arguments. Voluntary cessation does not moot the case unless "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Phosphate Export Assn., 393 U.S. 199 (1968). But the point of this answer is not on voluntary cessation in general. It is in the context of intervening legislation. A voluntary intervening legislation is usually sufficient to moot a case (e.g., Massachusetts v. Oakes, 491 U.S. 576 (1989)), but it was not so in City of Mesquite -- that's why it is different from most similar voluntary cessation cases, and resembles more closely to the NYC gun control case. Perhaps because it is a city (and was thus less burdened to reenact the same or a similar ordinance than a state legislature), perhaps because it had declared its intention to reenact, perhaps both. None of these might be controlling precedents. But, City of Mesquite and the state legislature cases like Oakes (because the NY state legislature also acted), are probably at least close ones in the jurisprudence of the SCOTUS at this point of time.
Whether or not a war between political entities can result from some action is completely political and strategic, and not legal. The specific incident is probably legal, given US and international law regarding military action. Unless the order was self-evidently unlawful there is no possibility of arrest and prosecution under US law, however there might be a framework for legal action by Iran, if e.g. a drone operator were to fall into Iranian hands. The specifics of the order are not generally known, though we know that DoD states that this was due to a presidential order. This article discusses targeted killing from a legal perspective. In the context of war, killing is legal though not entirely unregulated. There was a failed attempt to sue the US in the case Al-Aulaqi v. Panetta, which involved a targeted killing of a US citizen involved in planning terrorist attacks, a suit which was dismissed. One problem is that the suit "failed to state a 4th Amendment claim", and also failed to state a 5th Amendment due process claim since Al–Aulaqi's deaths was unanticipated. The court notes that a Bivens claim allows damage action against a federal officer for violation of clearly-established constitutional rights. However, No case has discussed precisely whether a plaintiff can proceed on a Bivens action that claims deprivation of life without due process based on the overseas killing by United States officials of a U.S. citizen deemed to be an active enemy. In the discussion, the question arises whether special circumstances counsel hesitation (Doe v. Rumsfeld and citations therein), which the Doe court notes would "require a court to delve into the military's policies", and they will not do that lightly. All of this is about US citizens. Soleimani was not a US citizen.
Why do you want to know? I think that the reason this question seems so obscure is because it does not involve sufficient context and specificity. It can't be answered until one knows the reason that it matters to know if a rule is new or not. In a particular context, these questions usually have obvious and clear answers. The murkiness arises only when one tries to overgeneralize. The life of law is not reason, it is experience. In general, it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications. That approach to legal reasoning is a classic rookie mistake that gets a lot of young associate attorneys doing legal research into trouble by overstating the confidence that they should have in their conclusions when there is no case right on point addressing a situation. For example, if a federal government agency publishes something in the federal register that does not exactly restate an existing regulation, then it is a rule change, in the narrow sense that is changes an existing published narrowly defined Code of Federal Regulations rule. The process by which one does so derives from the Administrative Procedures Act and other authorizing legislation passed by Congress and also custom and case law interpreting these, so it isn't self-referential. A completely different context in which the question of whether there is a "new rule" of law is when a court according to the principles of stare decisis makes a ruling interpreting the constitution in a manner different from or expanding upon previously rulings interpreting the constitution in a similar circumstance. In this context, this matters because a "new rule" of constitutional law is generally given only prospective effect, while an interpretation of an existing rule of law that merely expands upon existing precedents in a foreseeable way has retroactive effect. In this situation, as in any case in which one tries to determine the best definition to apply under the law, the best approach is to look for a definition that produces just results given the consequences of a particular definition v. another particular definition. In that context, the determination of whether a rule is a "new rule" should depend upon foreseeability and the amount of reliance that people put on the old rule as opposed to the new rule being in force. There is no good reason to have transsubstantive legal meta-rules that apply to both of these situations. The former mechanistic rule makes sense in its context and makes the status quo clear and the events that constitute a change in the rule clear, while the latter consequence oriented definition makes sense in the completely different context where it is used. Surely, there are other contexts in which the question of what constitutes a "new rule" could have different consequences still. For example, to determine what constitutes a new v. old rule of U.S. Senate procedure, or to determine which statute is newer or older for purposes of determining which statute of two that conflict should be given effect when there was a cosmetic recodification of the section numbers of one of the titles but not the other without changing the substantive meaning of the recodified statute. The determination should generally be made on a case by case basis as there is no important purpose served by having a uniform metarule to answer these questions. If you are getting paradoxes trying to apply your legal theory, you are probably doing it wrong. For what it is worth, I have a dim opinion of Hart as someone who uses lots of words to say nothing of consequence or use, and I am not familiar with Biagoli or Suber. In general, legal theorists are not terribly influential in how the law is applied and interpreted in practice, although, of course, there are always exceptions.
Other Authorities You are missing at least several important sources of authority, which include: (1) The United States Constitution; (2) the set of regulations issued by the U.S. Patent and Trademark Office and codified in the Code of Federal Regulations at Title 37, Chapter I; (3) applicable international treaties; (4) case law with the most important being the U.S. Supreme Court, followed by the U.S. Court of Appeals for the Federal Circuit, followed by U.S. District Court cases on point; and (5) case law from the administrative bodies of the PTO. All of the above and the sources you mention are "primary sources". These are interpreted collectively in "Treatises" on patent law which are often cited on issues where primary authority is either too thin, or so numerous that it is not easily summarized merely by resort to primary authority. A number of them are listed here. Chisum on Patents is the leading treatise in the field and should usually be your first destination. It will mention most of the relevant primary source authority in the subject area you are researching. Priority of Authorities The CFR is superior to the MPEP but inferior to Title 35. Treaties are co-equal with Title 35 with conflicts resolved by the date of enactment. Case law of the U.S. Supreme Court trumps everything (even, in practice, the language of the United States Constitution). Case law from the U.S. Court of Appeals from the Federal Circuit trumps everything except the U.S. Supreme Court. Given the very long string of recent reversals of the U.S. Court of Appeals for the Federal Circuit by the U.S. Supreme Court (almost one or two a year for the last decade or so), however, every Federal Circuit case should be analyzed to determine if it has been implicitly overturned or limited by the applicable U.S. Supreme Court jurisprudence. The United States Constitution trumps everything except U.S. Supreme Court cases and cases from the U.S. Court of Appeals for the Federal Circuit (these cases impliedly provide definitive interpretations of the United States Constitution). Case law from a U.S. District Court is not binding on anyone but the parties to the case, but is highly persuasive and in practice is about on a par with the MPEP, but subordinate to the CFR and administrative case law of PTO bodies. One complicated aspect of case law is that it is only binding when it resolves a question of law necessary to resolve to decide the case before it. Sometimes opinions go off on tangents which discuss other questions of law not before the court and that is called "dicta" which is persuasive on that point of law, but not binding and not as authoritative. It is not always obvious what constitutes the binding portion of a court decision and what constitutes dicta. Another complexity in case law involves concurring or dissenting opinions in cases. Dissenting opinions, obviously, are not binding on anyone but sometimes clarify the scope of the majority opinion. If there is a plurality opinion and a concurring opinion in a case, they have equal weight and neither opinion's rule is definitive except to the extent that they agree. Generally speaking a majority opinion will be binding relative to a concurring opinion in the same case, but that status isn't really definitive and a concurring opinion should be considered even when it accompanies a majority opinion even though the concurring opinion shouldn't be considered binding in that situation. Of course, all case law (and for that matter all other authority) can be made obsolete by subsequent amendments to Title 35 or by the adoption of new treaties. A treatise isn't binding on anyone, but a well reasoned passage from a leading treatise like Chisum will, in practice, be given weight a little below a U.S. Court for the Federal Circuit case, but often greater than any lesser source of authority on a topic. A well reasoned passage in a lesser treatise is typically given a weight comparable to a U.S. District Court case that is on point. Loose Ends One of the important sources for prior art is the compendium of all patents ever issued by the United States (the vast majority of which have expired and entered the public domain). You can get them all for a very reasonable cost in electronic form. The compendium of patents which have not expired is obviously relevant when attempting to determine if a potential patent or technique or process of a client infringes on any existing patent. There are also some patent issues (e.g. jurisdiction and venue in patent disputes) which depend upon other Titles of the United States Code and have the same priority as Title 35 of the United States Code. There are circumstances in which the procedural rules of various courts which issue relevant case law are relevant. Each type of court has its own rules of procedure, and each particular court has its own local rules. (This is not hypothetical, I've had a case involving patent law in which three-quarters of the motion practice in the heavily litigated case depended upon the local rules of practice in the U.S. Court of Appeals for the Federal Circuit.) Precedents of U.S. Bankruptcy Courts, and precedents from U.S. Court of Appeal for Circuits other than the Federal Circuit, are sometimes relevant as well (e.g. interpreting procedural court rules, rules of evidence, or very general principles of law that aren't restricted to patent law such as the ex post facto clause of the U.S. Constitution). But, for the most part, patent case law arises in U.S. District Courts, the U.S. Court of Appeals for the Federal Circuit, the U.S. Supreme Court and the administrative tribunals of the PTO. Issues related to the relationship between an attorney and a client in patent law cases (e.g. attorney malpractice law in patent cases) is a question of state law rather than federal law.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
Volokh commented on this. There is no 2nd Amendment issue, nor does federal law. It may be illegal in some states, depending on whether age is included in public accommodation anti-discrimination laws. For instance, Conn. Gen. Stat. §§46a-64 says (a) It shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, gender identity or expression, marital status, age, lawful source of income, intellectual disability, mental disability or physical disability, including, but not limited to, blindness or deafness of the applicant, subject only to the conditions and limitations established by law and applicable alike to all persons; §46a-63 defines "public accommodation" (1) “Place of public accommodation, resort or amusement” means any establishment which caters or offers its services or facilities or goods to the general public, including, but not limited to, any commercial property or building lot, on which it is intended that a commercial building will be constructed or offered for sale or rent Public accomodation laws are how states deal with discrimination in sales, such as selling wedding cakes Illinois 775 ILCS 5/1-103 likewise prohibits age discrimination in public accomodations, but defines "age" as "the chronological age of a person who is at least 40 years old". Connecticut used to define "age" as "any age between forty and sixty-five, inclusive", but that clause was deleted. Lousiana also prohibits age discrimination (La. Rev. Stat. §51:2247). Their statement about age likewise limits anti-discrimination protection to "individuals who are at least forty years of age". Maryland in MD State Govt Code § 20-304 also bans age discrimination, and does not redefine "age" or limit the scope of those ages that are protected. So while it is generally legal to refuse to sell goods to the young (and sometimes mandatory, e.g. alcohol, firearms, tobacco), there are a few states where such a policy would violate state anti-discrimination laws. There can also be city laws (Seattle has very broad anti-discrimination laws), but they exclude age from the Public Accommodation subset of discrimination.
The question didn't mention marital status, but since states formally recognize that relationship it's helpful to start there. tl;dr: The Supreme Court decided state laws that required a woman to notify her spouse were unconstitutional. Thus it's unlikely there'd be grounds for suit. Background The central mechanism of Roe v. Wade (U.S. 1973) was a balancing act between what it decided was a 14th amendment right to privacy and the state's interest in both the health of the woman and the potentiality of life. Because Roe explicitly recognized a state interest, Pennsylvania passed a statute in 1982 that required informed consent and a 24-hour waiting period. It also mandated parental consent for minors (with some exceptions) and spousal notification. This reached the Supreme Court in Planned Parenthood of SE Penn. v. Casey (U.S. 1992). There, the court upheld most of the Pennsylvania law (reinforcing its statement in Roe that a state does have an interest) but struck down the spousal notification portion. To do that, it determined the appropriate test was whether a state was placing an undue burden---a significant obstacle---in the path of a woman seeking an abortion prior to fetal viability. It reasoned that: state regulation impacts a female's liberty more than male's during pregnancy (by way of biology) if a man and woman disagree, only one can prevail not all women are equally impacted by a notification mandate (for reasons of domestic violence, etc.) Combining this with the notion that women do not lose any constitutionally protected liberty upon marriage, it decided spousal notification would be a significant obstacle and thus an undue burden. In other words, unmarried women don't have spouses to notify, so placing a notification requirement on married women creates an additional burden that the court found undue. To get back to the question, the father certainly has a right to file a suit against the female (...and it happens from time to time). However, it likely wouldn't go far. Since unmarried women were the baseline in Casey, it's unlikely there'd be grounds for either married or unmarried fathers to sue their female partners. This comes up frequently under the moniker of "Father's Rights," which has gained less traction in the U.S. than in other countries. That said, Wisconsin recently introduced a bill that would allow fathers to proceed against abortion providers.
Statutes of limitations (hereinafter "SOL") vary from jurisdiction-to-jurisdiction. If it is only one-year in New York (I've not confirmed this) that would not be surprising. SOLs exist for all civil matters and nearly all criminal matters. I'd just like to point out that your question is not really limited to defamation or to the time frame for which the specific SOL runs for libel/slander ... at least as I've read it. It seems you are asking the broader question pertaining to what the philosophical or practical purpose(s) for SOLs in general are, as well as what effect these limits can have on the ability of a would-be claimant/plaintiff to get relief through the courts. So, to answer whether a person who believes they've been defamed can still bring a cause of action after the SOL has passed: the short answer is no. But, that is only the short answer. SOL is an affirmative defense, meaning that it can only be asserted if it is pled in the answer to a complaint. So, if John Doe feels he's been defamed by a libelous statement in the Times, and he files suit 4 years after the statement was made (and the SOL is 1 year), the court will still accept the filing of the complaint and Times must still be served. You do not lose the right to file your claim, when the SOL has passed, which is a very common misconception of the law. And, Times must still file an Answer to avoid defaulting. However, in that answer Times (no doubt by and through qualified counsel) will most likely assert a variety of affirmative defenses pro forma, which will include the passage of SOL (the claim is stale). If, in fact, the SOL has passed and the affirmative defense is pled, the next thing the Times will do is file a motion to dismiss. The judge will view the complaint in a light most favorable to Doe, the plaintiff, which will lay out all the facts (including when the libelous statement was published). If the cause of action accrued (this just means when the injury was sustained) and the claim was not filed prior to the expiration of the SOL, Doe's case will be dismissed. If the Times does not assert SOL though, it is deemed to have been waived for that and any subsequent related proceedings. There are ways to toll (extend) the statute of limitations. There is a discovery rule (this does not mean Doe didn't read it until after the SOL, even though he was able to). It means that the SOL can be tolled in cases where one could not have discovered the tort occurred. In these instances, the SOL doesn't begin to run until the discovery was either made or should have been made. This is most typically seen in medical malpractice cases (e.g., a surgeon leaves a sponge or instrument in your abdomen, and after years of failed treatments for IBS your doc sends you for an x-ray and an MRI and it's discovered) or in asbestos cases (you don't know you breathed it until you have asbestosis) &ndash; those types of scenarios. In cases like that, the SOL begins to run when you find out the tort occurred. This has also been successful in recovered memory cases where childhood sexual abuse occurred but was suppressed. Incapacitation is another way the SOL can be tolled. So, in Doe's libel case, the SOL can be tolled if he is incapacitated (in a coma and didn't wake for 4 years, in a mental hospital in a break from reality for 5 years) &ndash; in such circumstances you can still file a claim and have it survive a motion to dismiss based on SOL once you are rehabilitated. Also, Absence due to military service is reason to toll in some jurisdictions. Lastly, (at least the last one I can recall) is that minors can often toll the SOL however long the statute is (say 1 year) after they turn 18. As for why there are SOLs: That is more public policy than anything else. It is one of the oldest rules of law known to modern man, dating back all the way to early Greek and Roman law. Statutes of limitations are a fundamental part of EU and US law, as well as most other modern legal systems. They function to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become dubious and unclear due to the progression of time, which can lead to lost or uncertain memories, death of witnesses (for each side), or disappearance/inability to locate witnesses. The policies behind SOLs are also for judicial economy and to protect defendants from having a never-ending potential suit looming over them. Often, the seriousness of the crime or the tort, or some element of it, dictates the time frame of the SOL. It is a means to ensure that plaintiffs pursue their claims with reasonable diligence: I.e., if it matters to you, file it. Also, as I touched on above, time disadvantages defendants. Plaintiffs are the "injured" party, so they tend to retain evidence much longer than a defendant, who might not even realize he has done wrong &ndash; especially in civil matters. So, in a libel case, the whole basis of the claim is the irreparable damage to your reputation. If more than a year has passed and you didn't know about it, one could assume the damage never rose to the level of having sufficed to make a valid claim in the first place. That is why they run fast in those cases. They run fast in medical malpractice claims too, but this is a result of tort reform &ndash; the public policy that litigation against doctors/hospitals causes increased health care costs for everyone. So, policy suggests it's best for society to dispose of these claims quickly (not so much if you're the plaintiff). Whereas most regular negligence claims can have SOLs as long as six years in some jurisdictions where I have practiced. So there are clearly policy determinations going into these legislative acts. The Golden Rule of Law that I tell all of my clients is this: If you think you have a claim, talk to a lawyer right away, because if you don't you can lose the right to pursue relief, much, much quicker than one may ever imagine! I know this is a long answer, but I get asked this (type) of question all the time. Plaintiffs feel the SOLs run too fast, while Defendants cannot believe they can still be on the hook!