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A “Side Note” About Ripeness
Wednesday, February 10, 2021

The Sixth Circuit recently decided OverDrive Inc. v. Open E-Book Forum, a copyright case with an Article III twist.  Pertinent here, the plaintiff argued that a potential transfer of assets—that might or might not occur in an impermissible way—would (if it occurred in that certain way) “violate the [Copyright] Act in the future.”  That framing was bound to perk up the ears of any federal court, and the panel’s (Boggs, Sutton, Nalbandian) application of the ripeness doctrine to the case at hand was straightforward; it concluded that the plaintiff was asking the federal courts to wade into a hypothetical dispute, riddled with “contingencies and speculation” that “obstruct federal ‘judicial review.’”

Notably, however, the panel offered a “side note” forecasting a different future dispute – this one about ripeness doctrine.  The standard, two-question ripeness inquiry asks (1) “[d]oes the claim arise in a concrete factual context and concern a dispute that is likely to come to pass?” and (2) “[w]hat is the hardship to the parties of withholding court consideration?”  The OverDrive panel notes that just “one negative answer creates a ripeness problem.” But could a court really ever answer “yes” to the first question, but then decline to exercise jurisdiction based on a “no” answer to the second?  The OverDrive panel thinks that’s “doubtful,” pointing to recent Supreme Court precedent reminding federal courts that their “obligation to hear and decide cases within [their] jurisdiction is virtually unflagging.” Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)).  “For now,” the panel says that courts should continue to look at both questions, see Trump v. New York, 141 S. Ct. 530, 536 (2020) (considering both ripeness questions), though “[p]erhaps over time the second inquiry will merge into the first, merely offering a way of establishing concreteness, or its absence[.]”  Of course, that determination will have to wait for a future dispute.

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