Ripeness (Update)

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Like the standing and mootness doctrines, the ripeness doctrine has been used to regulate the timing of federal courts' adjudication of challenges to government action. The principal purpose of all three doctrines is to verify that the plaintiff presently suffers the kind of concrete injury that has traditionally been the business of Anglo-American courts to remedy. In a moot case, the plaintiff has sued too late; in an unripe case, the plaintiff has sued too early.

Ripeness questions arise in at least three types of cases. In one group of cases, the plaintiff challenges the validity of administrative agency regulations. In a second group, the plaintiff challenges the constitutionality of legislation. The third category consists of cases in which the plaintiff alleges a pattern and practice of unconstitutional law enforcement.

Frequently the plaintiff sues to have an administrative regulation declared invalid even before the administrative agency seeks to have it enforced. The agency typically argues that the case is unripe for adjudication. In Abbott Laboratories v. Gardner (1967), the Supreme Court set forth a two-part test to determine whether such cases are ripe. First, the court must determine whether the issues presented are "fit" for judicial resolution. That is, are the facts and procedural posture of the case sufficiently developed at this time to support a wise decision? Second, the court must consider how much hardship the parties would suffer if adjudication were deferred. In practice, the Abbott Laboratories test has contributed to the routine adjudication of regulations even before they are administratively enforced. The abundance of preenforcement review, in turn, may have impaired the quality and effectiveness of administrative rulemaking and adjudication.

The Abbott Laboratories test has sometimes been applied to cases posing constitutional challenges to legislation. The Court's record in this area is not a model of consistency. In general, however, the Court has tended to find such cases ripe when the plaintiff must either forgo what he believes is constitutionally protected conduct or engage in it and risk punishment. Steffel v. Thompson (1974) exemplifies the cruel dilemma. The plaintiff wished to distribute antiwar handbills at a private shopping center. He believed the activity was protected by the first amendment. However, his handbilling companion had already been arrested and charged with criminal trespass. Unless the court were to resolve his claim for declaratory judgment, he would be left with a choice between forgoing what he believed was protected conduct and the real possibility of punishment. The Court found the case ripe.

In a number of cases, plaintiffs have sought injunctions against police departments, prosecutors, or even judges who were allegedly engaged in patterns of racially discriminatory law enforcement. The Court has generally found such cases unripe. Individuals must wait until the allegedly discriminatory acts occur, then seek damages or criminal prosecution of the wrongdoers. These opinions manifest the protean quality of the ripeness doctrine. The Court's ripeness analysis in these cases relies heavily on conceptually unrelated notions about the proper relationship between federal courts and state sovereignty. It remains to be seen whether the marriage of these unrelated ideas will form an important part of the genius of American constitutional government or whether it will subvert the very foundations of individual liberty under the rule of law.

Evan Tsen Lee


Fallon, Richard H., Jr. 1984 Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons. New York University Law Review 59:1–75.

Mashaw, Jerry 1994 Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability. Law and Contemporary Problems 57:185–257.

Nichol, Gene 1987 Ripeness and the Constitution. University of Chicago Law Review 54:153–183.