Thursday, August 19, 2010
Excellent post on standing from Ilya Somin at The Volokh Conspiracy.
"The real purpose of 'standing' doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on 'generalized' grievances that affect a large number of people."
I'm not so sure that Professor Somin is correct when he says "Traditionally, conservative scholars and judges have advocated narrow views of constitutional 'standing': the level of 'interest' litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on these sorts of technicalities." I think that is a bit too broad brush, and that it is probably more accurate to say that how one feels about standing depends on what ox is being gored. Of course, my views on the question are the views of a litigator rather than a theorist-- I'm in this biz to make arguments, not pronouncements. As an abstract proposition I'm fine with the idea that federal courts are limited in what they can do, and in what cases they can accept. It's a federal system, after all, and the state courts, in my experience, are reasonably well equipped to handle most judicial business. I guess that makes me a conservative in Professor Somin's view, but I don't feel conservative.
"The real purpose of 'standing' doctrine is not to keep out frivolous cases, but to make it more difficult to bring meritorious ones, and thereby insulate potentially unconstitutional practices from legal challenge. This is the agenda underlying claims that standing doctrine is needed to prevent plaintiffs from bringing cases based on 'generalized' grievances that affect a large number of people."
I'm not so sure that Professor Somin is correct when he says "Traditionally, conservative scholars and judges have advocated narrow views of constitutional 'standing': the level of 'interest' litigants must have at stake in the outcome of a case in order to give them a legal right to sue. For their part, liberals have usually promoted the opposite view: constitutional rights should not be denied based on these sorts of technicalities." I think that is a bit too broad brush, and that it is probably more accurate to say that how one feels about standing depends on what ox is being gored. Of course, my views on the question are the views of a litigator rather than a theorist-- I'm in this biz to make arguments, not pronouncements. As an abstract proposition I'm fine with the idea that federal courts are limited in what they can do, and in what cases they can accept. It's a federal system, after all, and the state courts, in my experience, are reasonably well equipped to handle most judicial business. I guess that makes me a conservative in Professor Somin's view, but I don't feel conservative.
// posted by Bill @ 10:05 AM 
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