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Administrative Law and Habeas

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The U.S. Supreme Court decided two cases today, and on the surface neither would seem to be of interest to practitioners of criminal law. However, Summers v. Earth Island Institute may have some value:

We must determine whether respondents have standing to challenge the regulations in the absence of a live dispute over a concrete application of those regulations.

From the fact Justice Scalia is writing the opinion, most SCOTUS-watchers would guess right there the answer is "no," and so it is.

Meanwhile, back on the Left Coast, the California Habeas Corpus Resource Center, a government entity created for the express purpose of qualifying the state for the federal habeas fast track under Chapter 154 of 28 U.S.C., has an injunction against USDoJ's implementation of regulations under that chapter. Does HCRC have standing to bring this suit? It's hard to see how, after Summers. Surely there is no "concrete application" until a state actually applies for certification. When a state does apply, Congress has specified the venue for judicial review, and it is the Court of Appeals for the D.C. Circuit, not out here.

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But "death is different" . . . .

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