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Thursday, May 10, 2012

Why standing is nonsense: Exhibit # 128

I have been waiting for two weeks to write about this case, which I used for part of my Civ Pro exam that my students are taking as you read this (hence the delay). Five Orcas currently housed at Sea World sued (through Next Friends) Sea World, claiming that they were being subjected to slavery and involuntary servitude in violation of the Thirteenth Amendment. I spun two Civ Pro questions out of this--one on 12(b)(6) dismissals with prejudice and one on Rule 11.

But the actual decision reveals, once again, jurisdiction/merits confusion, as well as the utter nonsense that is Article III standing. The magistrate reviewing the complaint held  that the Thirteenth Amendment only protects persons/humans, not non-human animals, which seems correct to me. And that should have lead to a 12(b)(6) dismissal (which is how I tested it); because the plaintiffs' rights were not violated on the conduct at issue in light of substantive law, their claim fails on the merits.

Yet the court dismissed under 12(b)(1) for lack of subject matter jurisdiction, treating this as a matter of Article III standing; because the plaintiffs have no rights under the substantive law, they lack standing. This makes absolutely no sense, even beyond the too-easy joke that a whale cannot have standing since a whale does not have any legs on which to stand.

One of the great breakthroughs in SCOTUS's recent turn away from drive-by jurisdiction rulings, particularly on the merits/jurisdiction axis, was establishing a sharp definition of merits. Merits aks whether a particular legal rule "reaches" some conduct, which asks whether it "prohibits" that conduct; the same idea can be expressed in terms of a legal rule binding, constraining, or controlling some conduct. This is a defense-oriented definition. But we easily can flip the orientation; asking what conduct is reached or prohibited logically considers not only who is engaging in the conduct but also who the conduct is directed at or who the conduct injures. Flipping the perspective should not alter the inquiry from one of merits into one of subject matter jurisdiction. If it is merits to ask whether the defendant is subject to suit under some legal rule or whether a defendant can be said to regulated by a legal rule (which is the fundamental point of Arbaugh and Footnote 4 in Hosanna), then it should be merits to ask whether the plaintiff is able to sue under that same legal rule or whether that legal rule protects him.

Better still, the fullest expression of merits asks "who can sue whom for what conduct and what remedy." This definition takes every element into account--the plaintiff, the defendant, the real-world behavior, and the appropriate legal rule--but recognizes they all go to the fundamental issue of whether a claim for relief has been stated in the particular case. The issue here is the first element, whether whales can sue under the Thirteenth Amendment, but that element is one part of a full question about the merits.

Think of it this way: Suppose in moving to dismiss, Sea World had tried to argue that it was not subject to liability under the Thirteenth Amendment because it is not a state actor (a legally incorrect argument, but still). Had the court agreed, it would have dismissed under 12(b)(6) (again, see Arbaugh, Morrison, and Hosanna). It makes no sense not to do the same when the motion to dismiss focuses on the plaintiff-based side of the question. Either goes to the same point of whether the defendant can be liable to the plaintiff in court over his conduct.

This should have been an easy case, not only to resolve (obviously), but to analyze and categorize procedurally. But courts keep missing the point and the opportunity.

Posted by Howard Wasserman on May 10, 2012 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Thank you, Professor, for the interesting post. I was just thinking and writing about a similar issue today -- a court's discussion of whether a defendant had "standing" to challenge a third-party subpoena. In a recent Twitter/OWS-related case, the NYS Court held that a defendant didn't have standing to challenge the subpoena because he had no Fourth Amendment interest in the requested information (his tweets). That seems to me to be a pure merits question: He has Article III standing, but he loses.

Anyway, if you're interested in that example, the link to my discussion is here: http://ziffblog.wordpress.com/2012/05/10/twitter-standing-and-standing/

I also use a hypothetical example of a simple battery action, where the plaintiff alleges that the defendant hit him in the head with a rock. If the defendant later proves (either at trial or on MSJ) that the plaintiff is lying and was never actually hit with the rock, it makes no sense to consider that a lack of "standing" because the plaintiff suffered no injury in fact. That's a pure merits determination. But courts do seem to put the cart before the horse in that way in other circumstances, such as the subpoena case or your Orca example.

Posted by: David Ziff | May 10, 2012 6:00:33 PM

Thanks -- it's probably in the stack of articles I'm working through. I'd be interested to see how it differs from Sunstein's work in the late 80s/early 90s. Steven Winters also has a great-because-it's-so-tedious article in SLR from around that time.

Posted by: Josh | May 10, 2012 2:36:18 PM

Josh: There was an article about a year ago (I forget by whom) that traced the history of standing back to these early ad law cases.

Clerk: Interesting point about inertia, both for career clerks and for judges. You are seeing the reality that what happens on the grounds is very different than what the higher-ups (or the professors who teach and write about this stuff) say.

Posted by: Howard Wasserman | May 10, 2012 1:53:34 PM

Howard, this is a really interesting post. I would add, that, as a practical and anecdotal matter, I see lots of institutional inertia at the District Court level, especially among career clerks. If they've always handled certain types of motions as 12(b)(1) motions, they are loathe to abandon that M.O.--Arbaugh be darned!

Posted by: D. Ct. Clerk | May 10, 2012 12:06:55 PM

Yeah, the district court blew it.

I've been reading a lot about this lately. I think the confusion really stems from the fact that federal court standing derives from common law concepts that are being used for a purpose that they were never intended to serve. In other words, prior to the 1920s, a plaintiff would lack "standing" to bring a particular claim if the common law did not vest him with that cause of action, either substantively or procedurally. To use a couple of more modern (and thus imprecise) metaphors, a third-party beneficiary to a contract does not have "standing" to sue for breach unless he or she is an intended beneficiary, or (in some states) a policyholder will not have "standing" to bring a declaratory action seeking to construe the terms of his or her policy by statute or rule of civil procedure.

The problem is that Brandeis and Frankfurter initially grabbed on to these sorts of common law doctrines and tried to mutate them to serve as a gatekeeping mechanism to limit the plaintiffs who can come into federal court (in order to protect the New Deal, if you believe the mainstream version of the story). Scalia and O'Connor and that ilk have subsequently taken that bastardized precedent itself and morphed it into a doctrine that primarily is intended to serve separation-of-powers interests. But, of course, a doctrine that started out basically defining one the elements of a particular cause of action (i.e., who can bring it) is hugely ill-suited to be used as a constitutional bar to federal court access in the first place.

(Incidentally, my own pet working theory is that when you really dig into the recent public injury decisions [Akins, Massachusetts, AEP], what you see is a fight over whether federal court standing doctrine has any remaining connection to its common law roots, at least in that specific context. But the idea is still germinating.)

Posted by: Josh | May 10, 2012 11:47:26 AM

So, it sounds like one way to think about standing is this: assume the conduct alleged violates the rule being cited. Can the plaintiff sue for that violation? Here, if confining whales violates the 13th Amendment, the answer has to be yes.

Posted by: Bruce Boyden | May 10, 2012 11:19:06 AM

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