Justice Jackson Questions Pre-Enforcement Injury Theory in Olivier v. City of Brandon

Pre-Enforcement Theory and Merits Connection

• ❓ Justice Jackson expresses difficulty understanding why the pre-enforcement theory's injury aspect, related to the possibility of being ordered to disclose, isn't bound up with the merits of the challenge.
• 💡 She posits that this potential injury would only occur if the party is wrong on the merits of their challenge.
• ⚖️ This contrasts with the litigation cost theory, which is seen as a potential injury independent of the merits, as those costs would be incurred regardless.

Standing and Threat of Proceedings

• 🎯 The lawyer explains that in pre-enforcement challenges, courts assess a reasonable objective threat that the state or prosecutor will begin proceedings to determine standing.
• ✅ This assessment is the basis for establishing standing, rather than a deep dive into the likelihood of the proceedings succeeding.
• 🗣️ Justice Jackson clarifies if the injury is simply because proceedings have been brought.