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Monday, March 12, 2012

Does this explain or justify standing doctrine?

The news that Mary Brown, one of the lead plaintiffs in the ACA litigation, declared bankruptcy with about $ 4500 in unpaid medical bills is one for the Irony Can Be Pretty Ironic file. But it also might either justify or demonstrate the silliness of standing doctrine in constitutional litigation, such as the challenges to ACA, that are really driven by the ideological and advocacy groups litigating the cases.

The best justification for requiring standing in this type of constitutional litigation is that it ensures factual concreteness will inform judicial decision making. Facts matter and narrative matters. Thus, we don't want the National Federation of Independent Business to litigate in its own name; we want it to litigate on behalf of an individual with a real story. And in this case, that story may end up helping both sides.

On the other hand, does this story also show why it's not worth the bother? The LA Times story says the NFIB was pressed for time in bringing its lawsuit and thus did not have time to fully vet the plaintiff; Brown volunteered and was very vocal on the issue, so the Federation went with her. But does she really add anything to the legal arguments that need to be made or resolved? The NFIB is driving this litigation and the details about Mary Brown are secondary and, ultimately, not very important to the constitutional issues in the case. So would we be better off if we just let the NFIB litigate in its own name without going through the charade of making it find (often without full information) what is, effectively, a front?

Update: Mike Dorf argues that many significant SCOTUS cases--including Lawrence and Wickard v. Filburn--rested on an inaccurate understanding of the real facts by the Court, an understanding that their movement lawyers did not seek to correct. And, Dorf insists, it should not matter.

Posted by Howard Wasserman on March 12, 2012 at 09:47 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Funny -- when I was typing in the comment, I thought to myself "you know, I bet this has been addressed at length in the literature, and I'm going to look totally uninformed." I was right!

But thanks. I hadn't seen this before. It looks very interesting.

Posted by: Joe (not that one) | Mar 14, 2012 12:02:12 PM

Joe: If you haven't already seen it, see Heather Elliott, Congress’s Power to Solve Standing Problems, 91 B. U. L. REV. 159 (2011).

Posted by: Howard Wasserman | Mar 14, 2012 11:54:34 AM

* I won't bore anyone with the details unprompted. But feel free to ask.

Posted by: Joe (not that one) | Mar 14, 2012 11:22:29 AM

What Orin said (congrats, by the way). Because of the C&C language, federal courts CAN'T engage in abstract policymaking, even if Congress wanted to delegate that power.

Though the one thing that has always perplexed me is that while Congress can't grant standing to a non-Hohfeldian plaintiff (dammit, now I'm doing it), it seems fairly plausible that it could basically create a statutory injury that would then be actionable. Say -- to use an example that comes up frequently in the literature, including (tangentially) my current submission* -- the Constitution is amended to include a BBA. Say Congress completely disregards that provision. Say that the first group of plaintiffs that sue are held not to have the requisite AIII injury-in-fact. Say Congress tries to rectify that by passing a statute giving any citizen a reward (or even better, a tax credit) for identifying and successfully prosecuting a violation of the BBA. Couldn't a plaintiff claim injury at that point? They have a direct financial interest in enforcing the BBA. Indeed, if the tax credit model is used, they could even claim that they will have to pay more unless the lawsuit is resolved in their favor. Anyway, I'm going on too long, but you catch my drift.

Posted by: Joe (not that one) | Mar 14, 2012 11:21:00 AM

Howard, I think the separation of powers concern is not that courts will do what Congress doesn't want, but rather that courts will take on too much power generally. Of course, different people will have different views of when courts are exercising "too much" power.

Posted by: Orin Kerr | Mar 14, 2012 4:09:38 AM

I've always had a problem with the Sep/Powers argument, because the Court has stepped in even when Congress has granted standing and determined that it was OK for certain suits to be brought.

Posted by: Howard Wasserman | Mar 13, 2012 1:33:02 PM

"Standing hangs on two ideas: concreteness and adversariness"

This is really too abstract of a formulation. I think the best view of current federal standing doctrine is that it is really based on separation of powers concerns. In other words, when federal courts engage in policymaking, they really should only do so in the context of an actual case involving actual litigants. Otherwise, there is a risk that they might intervene in abstract policy matters more properly reserved to the legislature. So yes, "concreteness" is the basis for federal standing limitations, but the "why" is that otherwise Article III might start to merge into Article I.

Posted by: Joe (not that one) | Mar 13, 2012 12:36:49 PM

Perhaps this is a unique case, although it seems only a small difference of degree.

Standing hangs on two ideas: concreteness and adversariness; the latter is what Andrew brings up. But adversariness is just as present if the ACLU or NFIB litigates in its own name without concern for any individual plaintiff; the NFIB has the same incentive to present its case strongly and completely, as well as expertly. So we don't need standing to ensure adversariness, which means it must be about something else--namely, concreteness.

Posted by: Howard Wasserman | Mar 12, 2012 10:47:33 PM

The argument for standing requirements that I've always understood in constitutional cases is that they provide at least a first guarantee that the parties will present their cases strongly and completely. It's one step, that is, in preventing a group from filing a lawsuit that it doesn't intend to win, in order to establish friendly precedent for their real aims.

It's obviously not perfect for that purpose, but it's at least decent. And Orin is right that this is a rather exceptional case.

Posted by: Andrew MacKie-Mason | Mar 12, 2012 4:08:06 PM

The ACA litigation is very unusual in that it is a facial challenge to a statute that effects millions of people. I'm not sure why the irrelevance of standing and factual concreteness in that one very unusual case suggests the irrelevance of standing and factual concreteness in general.

Posted by: Orin Kerr | Mar 12, 2012 2:03:16 PM

If only there was some way for an interest group like the NFIB to pool its members' resources and use them to try to influence legislative policy. Maybe some sort of scenario where those members can give money (we'll call them "donations") and hire people with access to legislators ("lobbyists") and have them give money to the legislators ("donations").

(Sorry for the snippy tone. I spent all day yesterday cutting about 3,000 words from my state court standing article. Did you know that by 1988, the rationales for standing limitations had become so well-rehearsed that at least one commentator called them "numbingly familiar"? At least you didn't use the term "Hohfeldian" in the post!)

Posted by: Joe (not that one) | Mar 12, 2012 10:05:21 AM

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