This post gets it exactly right. I like how the shows whose ONLY TOPIC is finance preface all discussions of finance with "Hoo boy, this stuff is hard to understand and I don't envy those who are forced to understand it." Imagine if sports radio did that. "Well, there's no need for anyone out there to know this, because you just care if your team scores or not, but there's a thing called a nickel defense, which forces the offense to..."
that standing is an obscure concept that only pointy-headed legal thinkers know much about (I can't remember the precise phrasing but it really was along the lines of "pointy-headed")
I'm guessing the phrase "ivory tower" was used. And "abstruse".
I wonder if there is any concept that might shed light on whether or not you could file suit against NPR for using uselessly complicated openings?
Imagine if sports radio did that. "Well, there's no need for anyone out there to know this, because you just care if your team scores or not, but there's a thing called a nickel defense, which forces the offense to..."
For those who haven't read it before, along those lines....
I'm confused about why you don't think standing is enshrined in the Constitution and how Wikipedia supports this assertion. Is it because you don't think the terms "cases" and "controversies" are sufficient to support current interpretations of the requirement for standing? Similar to how there is nothing specifically about abortion in the constitution and instead it's supported by the right to privacy?
4: You're a lawyer, so I don't think you're confused. You just disagree.
Imagine if sports radio did that. "Well, there's no need for anyone out there to know this, because you just care if your team scores or not, but there's a thing called a nickel defense, which forces the offense to..."
Can you explain that in simpler terms, maybe using a science analogy?
5: I swear I'm not trying to be obnoxious and pretend that I don't know. I'm genuinely curious. I was wondering if this is a common complaint that I was previously unaware of.
4 is right, as is the fact that whether or not you think the requirement for standing is enshrined in the Constitution, it's indisputably true that under current legal doctrine it's treated as being enshrined in the Constitution, which although I haven't heard the NPR program in question, is probably the context in which they were raising that point, since it has certain important implications (e.g., it's not a requirement that can be waived by the other side, nor can a statute or regulation do away with it*).
* Sort of. It's confusing to talk about "standing" generically in many cases b/c the"standing" analysis often actually involves two separate issues: "statutory" standing and "Article III" standing. The latter is the constitutional one.
I'm confused about why you don't think standing is enshrined in the Constitution and how Wikipedia supports this assertion.
Well, the Wikipedia article sez, "In Fairchild, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. Prior to it the doctrine was that all persons had a right to pursue a private prosecution of a public right.", so it seems plausible that a certain amount of reading-into is going on. In any case, I actually don't understand the transition from "cases and controversies" to standing. I am, of course, willing to be enlightened.
I'm still standing, after all these years.
7: Oh, sorry. My guess (confirmed by neb's own comment seen on preview) is that neb doesn't really know anymore about this topic, then what he read in the wikipedia article.
Well, I didn't think you were being obnoxious. I had got the impression recorded in the post elsewhere than from Wikipedia, though I'm not sure where I did get it.
Skipping around on the internet I get the impression that the case-or-controversy -> standing requirement transition is supposed to be something like, if none of the things that would grant you standing pertain to you, it's not really a case at all.
The "cases ... and controversies" language limits the extent of the judicial power. If you don't have a case or a controversy, the federal courts can't help you. What counts as a case or controversy? Well, there's some jurisprudence on that.
11: "than". Otherwise, basically correct. As usual, this has not prevented me from sounding off.
If NPR doesn't emphasize to you how difficult and obscure the knowledge they are about to impart is, how are you supposed to get that feeling of intellectual superiority and overall smugness when you understand the explanation?
if none of the things that would grant you standing pertain to you, it's not really a case at all.
This is pretty much it. To vastly oversimplify, unless your ox was gored, you don't have a 'case'. To have standing, you need to show both that an ox was gored, and that it is in some sense yours.
Currently watching the oral arguments instead of studying. I really don't like how the Mormon judge articulates every syllable of "homosexual."
And, LB comes through with the clear explanation! You should, like, be a lawyer or something.
Quaere, whence this understanding of "case"? Does it derive from a prior common-law tradition?
I mean, I understand the requirements relating oxes, gorings, and standings. But how does the standing get into "case"?
10: I'm still standing, after all these years.
Yeah, nice pillars.
I have to go to lunch now, so please have a thorough explanation, anticipating every point on which I might be confused or have further questions, by 12:45 Pacific. TIA.
The "cases ... and controversies" language limits the extent of the judicial power.
In one sense, yes, definitely. In another sense, though, the effect is less clear, since what it does is let the judiciary avoid taking cases they'd rather not take, independently of whether or not a law was broken. This is a real source of judicial discretion.
Oh, also, arguments liveblogging; more liveblogging.
I'm a tough guy! Look how tough I am! I make anonymous threats I have no ability to back up! Look how scary I am!
Oh, who am I kidding? I'm a pathetic, cringing wimp. Otherwise I wouldn't hide like a little bitch behind proxy servers. But you guys are the best.
And, while Neb's complaints about NPR are generally valid, standing does get pretty abstruse around the edges. There are some weird anomalies around affirmative action cases, where generally you can't sue an entity for doing something against the law unless you can establish clearly that you personally were actually injured by it, but that gets relaxed for white people suing over affirmative action. And Bush v. Gore.
It's the sort of doctrine where critical legal theory gets appealing-- it's hard to reconcile all the cases unless you include "What the judge wanted to do" as a major factor.
So do people think that it's too much of a stretch to say standing is supported by the "cases and controversies" doctrine?
21: Fairchild is not helpful for this question. I read the Fairchild case and it seems to stand for the general proposition that the plaintiff has no standing because he suffered no harm and it's therefore not a case. There isn't any interpretation of how to define a "case."
To clarify a bit: if you're developing doctrine, and you know that you've got a fair amount of wiggle-room about which disputes you're going to settle based on that doctrine, this actually gives you more flexibility about achieving your preferred outcomes than if you know you'll have to adjudicate any claim that the doctrinal rules were broken, no matter who makes it. So the effects on 'judicial power' are a bit murky.
20: although there are arguably good reasons for the doctrine (see 17), there's no sense in which it isn't a judicial fiction. The words "case" and "controversy" could just as easily (in fact, far more easily) be read to allow, as a constitutional matter, courts to hear any "case" that came before them, and courts could just be vested with discretion to choose not to hear cases if they thought no one involved had a sufficiently close relationship to any ox that had allegedly been gored. That's not how it's done, obviously, but there's nothing in the language of the constitution that demands this be a constitutional issue. Of course, it *is* treated as a constituional issue in our system, so MPR wasn't wrong to assert it as such.
Wikipedia sends me to Muskrat v. United States, which cites Chisholm v. Georgia, which I'm not going to read right now.
That sounds like a loser for Muskrat.
12 is basically right, though the reasoning is obviously circular -- there is a "case or controversy" in a situation where a party has a specific enough interest for there to be a case or controversy.
The basic theory is that you don't want courts issuing purely advisory opinions in situations where the party that brought the suit doesn't have something directly at stake in the outcome. In other words, courts shouldn't just be opining on the law without something immediate at stake. That's certainly a valid concern. It's certainly not clear, though, that this rule needs to be a matter of constitutional law or that the "cases and controversies" language in Article III actually requires anything like the current standing rules, which are fairly convoluted.
There's also just the broader point that our system is and has been for a long time an adversarial system. Courts don't just go around declaring judgments when nobody asks them to; given that constraint, it makes sense to say they can't go around declaring judgments that affect some people when other people (whose oxen are gore-free) ask them to.
30 is pretty much right. If you wanted to defend the standing doctrine as flowing naturally from "case or controversy", I think the way to do it is to say that unless all parties have genuine interests at stake, there's no real 'controversy' -- the fact that an uninvolved third party has an opinion on a legal matter doesn't make it a controversy. But standing doctrine isn't at all inevitable.
whose oxen are gore-free
Technically, I believe this should be "whose withers are unwrung."
Pwnd, obviously. Many US states, e.g., California, have much more relaxed standing rules.
In practice, the doctrine is used in a fairly discretionary manner to allow courts to avoid addressing things they don't want to address. Which is of course what's going on in the Prop 8 case.
And that, in turn, was pwn'd by Trapnel.
In practice, the doctrine is used in a fairly discretionary manner to allow courts to avoid addressing things they don't want to address.
This isn't exactly how I'd describe my experience with it -- you make it sound too merits-oriented, not not enough 'we hate to have to do our jobs no matter what your stupid case is about' oriented. But then you're not litigating in the DC Circuit. Just as the clerks at the Maryland Court of Special Appeals have a macro that can spit out a whole opinion affirming for (a) failure to preserve at trial; (b) harmless error; or (c) both -- and I'm sure they do -- DC Circuit clerks are ready with the lack of standing opinion.
(Of course, I argue lack of standing every time I've got a colorable argument, and so do the other lawyers here. So there's that . . .)
20: Quaere, whence this understanding of "case"? Does it derive from a prior common-law tradition?
Yes, at least in theory.
Limitation on "the judicial Power of the United States" is expressed by the requirement that a litigant must have "standing to sue" or, more comprehensively, that a federal court may entertain a controversy only if it is "justiciable." Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed.
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 150 (1951) (Frankfurter, J., concurring) (link).
To be frank, though, I don't think many people, if anyone, have any real idea of how the colonial courts or the courts of Westminister would have felt about modern standing doctrine.
'we hate to have to do our jobs no matter what your stupid case is about'
Yes, I agree that this is ordinarily the impulse, rather than "we don't want to hear your case because we care about who wins or loses." But sometimes the impulse is IMO more merits-based -- e.g., Scalia's opinion in Lujan.
40: This isn't exactly how I'd describe my experience with it -- you make it sound too merits-oriented, not not enough 'we hate to have to do our jobs no matter what your stupid case is about' oriented. But then you're not litigating in the DC Circuit.
Fair point, but I think perhaps you get the merits-oriented idea more if you focus on the Supreme Court opinions (see, e.g., Newdow) and the general attempt to reduce caseload more at the circuit and/or district level. Tough to quantify, though.
So, less "enshrined in the Constitution" (though, to be fair, neb was pretty clear that he was paraphrasing) than "implicit in the legal culture informing the constitution and subsequently established in the corpus of constitutional interpretation"?
45 is right, although now, as a matter of doctrine, the standing rules are officially enshrined in the Constitution and are a matter of constitutional law.
Well, yeah, prudential standing isn't exactly written in.
At the Sup Ct it's completely ridiculous to act as if anything is other than discretionary -- the metaphor of an umpire calling balls and strikes especially -- because they pick which half percent (or whatever the number is) of cases to take. And they pick them because they want to advance the law in a particular way, and emphatically not because some great injustice has been done, or the answer is obvious, or whatever a true umpire would use as a criterion.
Or, I should say, constitutional standing is a constitutional doctrine -- there are plenty of other non-Article III standing issues that can come up.
(I don't know the current cert granted stat, but in any case, it way understates selectivity, because plenty of litigants who've merely suffered a great injustice or a loss where a win is obvious, don't bother with wasting their time on a petition that's not going to be granted.)
If you draw a distinction between "the Constitution" (meaning, presumably, its express words) and "the corpus of constitutional interpretation" then I think 45 is about right.
Most lawyers don't draw that distinction -- it leads to things like arguments about whether the right to choose whether to carry a child to term is "in" the Constitution, and life's too short for that kind of thing. But a lot of nonlawyers think the distinction makes sense.
On preview, it's certainly right that there are also branches of doctrine that are called "standing" that, even in doctrinal terms, are nonconstitutional (statutory, or confessedly judge-made).
To Prop 8 proponents, I'd be asking what is their injury, really, and how they think a court order would redress it. I perceive their actual injury to be the existence (or public acknowledgment) of homosexuality. Court can't fix that.
Ah. I sense that I have misunderstood this concept of enshrinement. (I had noticed a lack of visible incensce or chicken blood, but I figured that was just in some back room.)
You didn't see 8 until you were previewing 60?
Oops. No, I didn't see 47 and 48 until I was previewing. Certainly pwned by 8.
56: Not for me you weren't. The translation to non-Lawyerese was helpful.
56: Not for me you weren't. The translation to non-Lawyerese was helpful.
'we hate to have to do our jobs no matter what your stupid case is about'
Hey, it's a lawyering thread. Can I just say how sick I am of having my arm twisted by judges to settle? I'm defending an absolutely frivolous, bullshit case, that plaintiffs brought purely to delay enforcement against them. And the judge keeps on giving them goddamn adjournments, and now, instead of hearing oral argument on my motion to dismiss, spent all morning making us conference in hopes of getting to a settlement.
And you know what? If he'd let us argue the motion six weeks ago? I'll bet a dollar the case would have settled by now. His role is to be the implacable machinery of the law. If he operates, I can settle my own goddamn cases without his help.
(Actually, I generally think highly of this judge, but this morning's appearance annoyed me. As does opposing counsel.)
That's a pain. You could try telling him that's not the kind of thing they did in the courts of Westminster and see how it goes.
I'm a big fan of requiring early mediations and mandatory settlement conferences, because there really are a lot of bullshit cases that should settle before the lawyers bill the hell out of them. But endlessly deferring rulings on dispositive motions is not cool.
62 -- It is often very important for institutional clients to establish to employees, customers, etc that they are not an ATM, willing to write a check no matter how bogus a claim is presented to them. It turns out that if one gets a reputation for giving out free money, people form a line to get some. It takes a while, and spending some real money defending against bullshit claims, but this really does work, IME.
All this legal stuff sure is interesting!
63: To further that point, it isn't just employees and customers. There are companies where the business plan is merely a pretext toward getting grounds to sue somebody.
(Especially useful, and one of the things they didn't teach me in law school, is that you can argue the significance of a particular ruling with the people at West.)
I don't disagree with that, either, and obviously some litigation needs to proceed all the way judgment or trial. But there's an enormous amount of civil litigation that could reasonably be settled earlier -- claims that aren't frivolous, but where the parties differ on the value of the claim and the probabilities of success -- where MSCs and early mediation is useful, and where the lawyers have an incentive to bill the case so as to delay an inevitable settlement. Nobody's forcing anyone to settle, but a lot of encouragement to do so and to do so early makes a lot of sense.
(This comment not in my own economic self-interest).
63: Yeah, my clients have a very "millions for defense, but not one cent for tribute" attitude, and while it may not be cost effective for each individual case, I think it pays off globally. (They will fold fast and easily if convinced they're wrong, and they're not impossible to convince. But they really don't want to settle anything for nuisance value.)
The City of New York, who I don't work for, on the other hand: anyone who really needs a quick ten grand, trip over something and sprain an ankle, and then sue the city for it. They're notoriously easy.
There are companies where the business plan is merely a pretext toward getting grounds to sue somebody.
Like what? Do you mean patent trolls?
66: Like, altering whether it counts as distinguishing or disagreeing with a cited case? Or what exactly?
I honestly have never seen lawyer incentive, on my side of the v anyway, delay settlement. IME, the lawyers are usually trying to get the client to see the vulnerabilities, etc. And there's always the question whether particular rulings, or disclosures (not just of documents, but of how shitty some of the witnesses are on the stand) are going to move settlement value up or down.
I don't have any problem with mandatory mediation, none at all. It should come after motions on the pleadings, though, and in a lot of cases, after dispositive motions.
Oh come on, Carp. Are you willfully blind? You've never seen defense counsel overbill the crap out of a case early?
I agree that it's sometimes more useful after motions on the pleadings. On the other hand, as a general matter, most motions on the pleadings are pretty frivolous, especially when leave to amend comes into play.
69: Yes and I've also heard of related ideas that are much less grounded in actual merit.
And I can state with 100% honesty that I've never done that myself. But it's pretty common practice on the part of counsel who are paid by the hour, for very obvious reasons. It would be shocking if overbilling before settlement didn't happen.
And "it's" there meant "pressure by the judge to have settlement talks."
71: You know, generally I'm Miss "Oh, it's all about incentives, if something's in your economic interest you're more likely to do it." But I'm with you on this one -- I've never been in a situation where I thought a case should settle and the lawyers were the stumbling block.
anyone who really needs a quick ten grand, trip over something and sprain an ankle, and then sue the city for it. They're notoriously easy.
Do I need to be in the City of New York at the time?
70: I call them from time to time to ask them to add, e.g., an order that they hadn't picked up for their database, when having it in there stands a good chance of being useful down the road.
72, 74: Running up the bill is one thing, but not settling when it's a live option is another. I'm sort of surprised to say this -- my instincts on how things work are with you -- but it's not what I've seen.
IME, it's not so much lawyers telling clients "you shouldn't settle," when they should -- that's both unethical and likely to backfire, although I believe I've been on the other side of situations where that was what was going on. But lawyers can do an awful lot of not very important work at high billing rates before settlement occurs, and have an incentive to push that settlement date off for quite a while.
72 -- Really, never. My clients now, and previously, watched bills carefully. And at my old place a hint of intentional overbilling would have you right out the door, don't bother to clean your desk, we'll send you your stuff.
This is completely different from preparing for settlement by getting a complete handle on the applicable facts and law, obviously, and pressing advantage against the other side to move settlement value in the right direction.
I believe that 72 either reflects the practice of an unusually saintly law firm, or a fairly self-deluded concept of "a complete handle on the applicable facts and law, obviously, and pressing advantage against the other side to move settlement value in the right direction."
I mean, not to be mean about it, but come on.
Halford: have an incentive to push that settlement date off for quite a while.
It's funny, while this seems perfectly plausible to me, I just haven't seen it. Eh, I've only been practicing for a decade, and there's plenty of things I haven't seen.
Charley: And at my old place a hint of intentional overbilling would have you right out the door, don't bother to clean your desk, we'll send you your stuff.
This, we've talked about before. You've clearly practiced law in a better and happier place than I ever have.
It's not about being saintly, but, as you know, cultures are different.
I don't think I know what you're talking about. Delaying settlement talks until after the plaintiff has been deposed? Seeking plaintiff's documents before the deposition? Looking at the key documents before talking to the opponent?
I never commissioned a memo on a point of law other than for use in a brief that was being written, in real time, for a motion that was going to be filed, if that's what you're talking about.
Getting into unncecessary discovery fights, and spending unnecessary time producing or developing discovery. Unnecessary and excessive legal research. Preparing memos to file on essentially meaningless questions. Preparing needless deposition summaries. Having associates do the work that a first year parallegal could perform. Filing motions on the pleadings that are clear losers. Etc. etc. I've been fortunate enough to only work at places that focus on extremely efficient service, but most law firms do not and it's somewhat insane, in my view, to think otherwise. I do think clients are getting much smarter about this, by the way.
The lawyer's ability to delay settling mostly comes from when you have the "now is a decent time to think about scheduling the mediation." I don't think most judges are crazy to think that this should come at a somewhat earlier moment than lawyers often do. There is very little reason why cases should need to settle on the eve of trial, as opposed to earlier, but many of them do.
"Hint" is an overstatement. [I'm redacting several anecdotes. Sorry]
|| My friend the patent lawyer just got a willful infringement decision on a kabillion dollar case. Treble damages! Neato. |>
85 -- Ok, still no. Most of my cases have been one or two lawyer affairs. And usually with pretty sophisticated clients. Or parsimonious. Or both.
I think this might also be largely cultural, Halford, and have to do with my venues. One of my favorite district judges used to lay down his rule for discovery disputes at the outset: before you could file a motion, you had to have a conference call with the opponent, and then both sides had to have a call with the judge. He said he'd found, over the years, that if a motion was still filed after that, one side was usually so unreasonable that fees were awarded.
There is very little reason why cases should need to settle on the eve of trial, as opposed to earlier, but many of them do.
Very little reason?? Both sides are hoping the other will blink first. It's the same reason the cars often get quite close to one another before someone swerves in a game of chicken. And I'm not a litigator, but I sometimes talk to them, and my overwhelming sense is that this behavior is completely driven by clients, not their lawyers.
The procedure in 87.2 is very smart, particularly the call-with-the-judge part.
87 to 84. And, to 84(b), the judge doesn't care what the settlement value is. He or she would be happy to see the case settle on the first day. I, however, want to see the plaintiff's deposition, want to see the client's documents (and I'm not likely to get them all -- especially the unfortunate ones -- until I get discovery requests) before I'm ready to put a real value on the thing.
88 - Well, right, it's a game of chicken, but that's exactly why judges are smart to try and push up the moment for pushing settlement.
Agree with 89 -- mandatory telephonic meet-and-confer with opposing counsel alone is pretty common now and I think it's impact is limited. Though probably there would be even more motions filed without it.
The line about usually awarding fees makes me a little nervous, though. From some judges, that would be a veiled threat. I assume that's not what CC's favorite judge meant, though.
88 -- You also get rulings on a bunch of issues as trial approaches. Your expert gets excluded, some documents get admitted, the outstanding motions listed in your final pretrial statement get decided. The client realizes that he's going to be stuck in a courtroom for 3 weeks, looking benevolent and engaged in front of the jury.
better and happier place than I ever have
Hey, now! I am offended. My experience, notwithstanding LizardBreath's libel, is mostly consistent with CharleyCarp's. I understand what Robert is talking about, but I think that this, like overbilling in general, is something that is actually pleasingly rare, although they must happen.
On the incentives point, I think incentives to pad go both ways. You can say that I have an incentive to do unnecessary work before the case settles so that I can make money on it, but if I make the client unhappy, the client will not come back for the next case, won't refer a colleague to me if they need a lawyer and maybe won't even pay my bill. I have a strong incentive to awvoid those outcomes. And, of course, it's unethical. Which is an independently sufficient reason why I don't do it.
88, 90, 91: I'm with Charley that you can't really talk settlement until the key facts are out, and that's usually after discovery's complete.
94: Oh, I've been thinking about my two BigLaw jobs. There was certainly some wasted effort at our mutual employer, but nothing that seemed systematic to me.
92 -- That's how everyone took it! At the initial scheduling conference, no one knows who's going to getting the wrong end of the lash, and no one wants to find out.
I think, though, that if you concluded the call with a properly respectful disagreement with the position the judge has taken, and reminder that the point is important enough to be preserved for appeal, that he'd probably relent. No case I ever had with him got that far. This obviously sorts out discovery disputes of the kind identified by Halford above.
Ah. Well, that'll keep discovery disputes down, yes, and I've certainly heard of judges who do it that way. I don't really think that's what sanctions are for, but for some reason they haven't delivered my commission yet, so what do I know?
I really hope the next comment is about Stanley, as I deeply admire him. But, really, all of you are the best.
I really hope the next comment is about Stanley
Stanle
And also, you have criticized NPR for eets snootyness by hauling out zee franch word for what you Eengleesh call "domain."
You make Scott Simon to eat zee merde sandweech!
Demense is a good English (well, law French) word. I don't think it exists in modern French, where it has been known as "Domaine" for centuries. So there, comically stereotypical accent!
The court not only rejected the lawsuit on the grounds that Mr. Awlaki's father had no standing to file it on behalf of his son, but held that decisions to mount targeted killings overseas are a "political question" for executive officials to make -- not judges.