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Abstract

My purpose here is to separate out the different conceptual categories whose overlap has led to these mistakes. In brief, the facial/as-applied distinction has nothing to do with the accrual or ripeness of a cause of action challenging the constitutionality of a law. The accrual date of facial and as-applied challenges is identical (with some exceptions, as we shall see), and mere enactment is rarely, if ever, the ripening event or the moment of accrual for a case in which a party mounts a facial challenge to a law. The distinction between facial and as-applied challenges is, so to speak, substantive rather than formal; that distinction only characterizes the merits of a constitutional challenge. But that distinction has no relation to jurisdictional questions such as accrual, ripeness, or statutes of limitations. A plaintiff may challenge a law’s validity at any time within the limitations period after that law has injured her, whether she chooses to argue that the law is facially unconstitutional or only unconstitutional as applied in her case.

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