Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Thursday, November 30, 2006

Global Warming, Standing and Stem Cell Research

Yesterday's oral argument in the global warming case, Massachusetts v. EPA (transcript here) included considerable discussion of the "redressability" prong of Article III standing doctrine. To oversimplify, the courts deny legal standing where the plaintiff(s) cannot establish that a favorable ruling will actually redress the injury alleged. There is certainly some logic to this requirement: where the relief sought has nothing to do with the harm alleged, then it does look like the plaintiff is asking for an effectively advisory opinion. But the Court's doctrine--and especially the way the lawyer for the U.S. read that doctrine in colloquy mostly with Justice Souter yesterday--goes well beyond that, essentially denying the right to a day in court to someone whose injuries will only be partly addressed by a favorable ruling. Where there is at least a logical connection between the alleged injury and the relief sought, it is not at all clear why standing should be denied on the ground that the relief might not make the plaintiff better off. If that's what the plaintiff wants, shouldn't the courts at least give the plaintiff the opportunity to show that the sought relief is his legal right?

Indeed, the strict application of the redressability prong reminds me of a satirical comment by John Stewart a couple of years ago when Laura Bush expressed support for limiting federal funding for stem cell research on the ground that promoting stem cell research gives Alzheimer's and Parkinson's patients and their families false hope. "It's not fair," the First Lady said, to raise hopes "because stem cell research is very, very preliminary." Stewart mockingly agreed that it would take many years of painstaking research to achieve medical breakthroughs, "so why start?"

5 Comments:

  • At 10:24 AM, Blogger Caleb said…

    This post has been removed by a blog administrator.

     
  • At 10:34 AM, Blogger Caleb said…

    The deleted comment above is mine - my computer decided to have a heart attack when I commented, so it didn't quite work.

    Anyways, I wanted to say that redressability could be seen as a way of saying who's responsible for doing the legal work on finding a remedy.

    Your comparison to Laura Bush suggests that the Court is shirking its duty by not beginning when it would result in failure. Another way to look at it would be that the court is saying, "This isn't our job - it's the plaintiff's job to lead us to a possible solution on redressability". If that's the case, then the "experimentation" has already begun, and - as in stem cell research - it suggests that plaintiffs shouldn't give up after one bite at the apple.

     
  • At 12:27 PM, Anonymous Anonymous said…

    It is interesting to note how the requirement of actual injury that is particularized, as I understand it, may be in tension with the requirement of redressability. To establish the propriety of entry into the courthouse, one must show that her injury is somehow unique to her; not shared in common with all members of society. Yet, this puts pressure on a litigant to argue that "my coast is eroding in a way that Nebraska's is not," thereby defining the harm in a way so as to make the redress of that injury totally hopeless.
    What this and similar cases really seem to be about is the failure of the government to investigate and to take steps toward contributing to the solution of a worldwide problem. As long as a litigant can show that it suffers in some way that is over and above the way that any other person chosen from a phonebook would suffer, then the litigation should not be caught up in the manipulable thicket of standing doctrine. The parties will be guaranteed to be properly aligned and vigorous representatives.

     
  • At 1:21 PM, Blogger Michael W. Dowdle said…

    Dalia Lithwich over at Slate has some interesting observations about this that generally parallel Mike's point -- except that Mike did not analogize the EPA's argument to that of a toddler who doesn't want to clean up her room. See http://www.slate.com/id/2154622/nav/tap1/

     
  • At 1:39 PM, Blogger David C. said…

    A common criticism of standing doctrines is that they are simply the way for the court to manage its political capital (e.g., Neudow) and to achieve outcomes it may not be able to if it reached the merits. To that end, I was struck by Scalia's "joke" in the oral arguments.

    From his questioning of the petitioner's lawyer, Scalia appeared to be against the arguments for standing. If he does end up voting against standing, what do we make of this joke: After being corrected for his mistaken reference to the stratospheric effects of greenhouse gases (the effects are in the troposphere, we learn), Scalia says: "Troposphere, whatever. I told you before I'm not a scientist. That's why I don't want to have to deal with global warming, to tell you the truth."

    I take it he meant this was his attempt at humor, but if there's a little truth behind each joke, this one is pretty telling . . .

     

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