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Thursday, May 06, 2021

Judge Newsom goes Full Fletcher

The Eleventh Circuit held Thursday that a hearing-impaired individual has standing to bring ADA and Rehabilitation Act claims for damages against a municipality for failing to make videos on its web site accessible to the hearing impaired. (H/T: Longtime reader Asher Steinberg).

The notable part is the 50+-page concurrence from Judge Newsom, who goes Full William Fletcher to argue that there is no distinct Article III standing inquiry distinct from the merits, using examples from Fletcher's foundational article. What gets called standing is about the existence of a cause of action and the violation of a legal right and remedy, going to the merits of the claim and not to the court's jurisdiction. Congress' power to create causes of action is not unlimited. But the limitation comes not from Article III, but Article II and the power of the President to execute the laws. The requirement of a particularized injury is a way to distinguish public from private rights or actions to vindicate the rights of the individual--which Congress can enable--from actions, such as criminal prosecutions, to vindicate the rights of the general public--which reside with the executive and cannot be delegated to private individuals. Newsom acknowledges that his approach does not eliminate difficult line-drawing and hard questions to divide public from private rights. But there is value in focusing on Article II rather than Article and thus "seeking answers in the right place." And, I would add, value to analyzing it as a matter of merits rather than jurisdiction.

I could not have said this better myself. And I have tried in this space, a lot.

Posted by Howard Wasserman on May 6, 2021 at 07:28 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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