• November 18, 2015
    Guest Post

    by Craig L. Jackson, Professor of Law, Texas Southern University Thurgood Marshall School of Law

    Can Congress create standing for violation of a statutory right by identifying as injury the violation of that statutory right? What does that mean? What seems to be a relatively simple question from reading Supreme Court cases that appear to stand for the position that Congress can create standing apparently is more complex than the cases let on. In Spokeo v. Robins, which is before the Supreme Court this term, the Court is being asked to resolve the question of whether the credit reporting firm Spokeo’s misreporting of Robins’ personal information alone creates standing on Robins’ part to sue Spokeo under the  Fair Credit Reporting Act.

    The Act provides a cause of action for persons who are the subject of credit reporting where the reporting firm does not follow the Act’s procedural requirements. Does that alone create the kind of standing required by Article III’s case and controversies provision? This was alluded to in Warth v. Seldin, quoting Linda R. S. v. Richard D. (“[A]ctual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing…’”), restated in Lujan v. Defenders of Wildlife (Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.'"), and reiterated in Justice Kennedy’s Lujan concurrence (“In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.”). What makes the question even more interesting is the fact that Robins’ actual injury may have been speculative, at best, as no specific harm to his credit rating or employment opportunities were alleged in his complaint against Spokeo.

    The language from Warth, Lujan, and Kennedy’s concurrence in Lujan may have given the impression that a congressional act can create injury (through the bestowal of statutory rights) where none had existed before. By that understanding, Congress can, for whatever purposes, green light suits against offending actors by virtue of a violation of an act by declaring that violation harm to the potential plaintiff. This was certainly the understanding of the Ninth Circuit, and it was apparently the understanding held by Justice Sotomayor as evidenced by this exchange during oral arguments earlier this month:

  • October 30, 2015

    by Jim Thompson

    Ahead of Monday’s oral arguments in Foster v. Chatman, Garrett Epps in The Atlantic examines the standards governing peremptory challenges and asks, when is it constitutional to purge black jurors?

    In Hamilton and Griffin on Rights, ACS Board member Erwin Chemerinsky discusses Spokeo v. Robins and argues that the infringement of statutory rights created by Congress provides sufficient injury for standing.

    Jim Hightower at Salon explains how the Supreme Court’s 2010 Citizens United ruling allowed the rich to buy America’s political system, effectively destroying the First Amendment. 

    In Hamilton and Griffin on Rights, Marci A. Hamilton decries Pennsylvania’s short statute of limitations for child sex abuse ten years after the groundbreaking Grand Jury Report on Child Sex Abuse in the Philadelphia Archdiocese was first released. 

  • September 3, 2015

    by Jim Thompson

    In The New York Times, Linda Greenhouse, a member of the ACS Board of Directors, argues that conservatives are now taking a broader approach to standing, a stark departure from past canons of conservative thought.

    Rosie Flores at The Nation argues that a criminal record should not disqualify someone from public assistance, reasoning that “no one should go hungry for a crime they have already served time for.”

    In The New Republic, Brian Beutler warns against the waxing tide of libertarian scholars seeking to dismantle legal gains of the New Deal.

    Timothy Williams reports in The New York Times that the Association of State Correctional Administrators, the nation’s leading organization for prison and jail administrators, has called for sharply reducing or altogether eliminating the use of solitary confinement for extended periods of time. 

  • February 18, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. This post first appeared at Balkinization.

    The issue of standing to sue has prompted the latest commotion in King v. Burwell, where the Petitioners ask the Supreme Court to deny low-income families the tax subsidies granted under the Affordable Care Act to help them purchase health insurance.  To bring a lawsuit in federal court, plaintiffs must have standing to sue.  The prerequisite for standing is injury.  Plaintiffs challenging a federal law thus must show either that it caused them injury or that they face an imminent risk of injury.  If the risk abates or is too speculative, the litigants have no standing, and the court therefore no longer has jurisdiction.

    The plaintiffs (now Petitioners) in King asserted standing based on a roundabout explanation of the harm they would suffer if they received this tax relief.  The subsidies, they claimed, would lower their cost of insurance below eight percent of their income, the threshold for the individual mandate to apply.  They therefore would be required under the ACA to purchase health insurance or pay a tax penalty—a sufficient injury to confer standing.

    Recently, however, some enterprising investigative reporters have raised doubts whether the subsidies would in fact cause any of the plaintiffs in King to be subject to the individual mandate.  Two of the four plaintiffs, it turns out, are veterans.  Eligibility for VA benefits, or at least enrollment in the program, would exempt them from the individual mandate.  A third plaintiff has relocated since the case was filed, and geographic variation in the cost of insurance could affect whether the subsidies put her under the eight percent threshold.  And reporters have questioned whether the fourth plaintiff has so little income that she would be exempt from the mandate even with the subsidies.

  • March 26, 2014
    Guest Post

    by Brandon L. Garrett, Roy L. and Rosamond Woodruff Morgan Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press will publish his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Yesterday the Supreme Court heard arguments in the long awaited cases of for-profit corporations arguing that Obamacare's contraception mandate endangers their constitutional and statutory religious exercise rights.  Both Hobby Lobby Stores Inc., a national arts and crafts store chain, and Conestoga Wood Specialties Corp., a small kitchen cabinet maker, argued that they should be exempt from the health insurance regulations due to not just their owners’ beliefs, but their corporate consciences. Rather than focus on whether a company is a "person" that "has" a statutory or constitutional right to free exercise of religion, the Justices could have pushed harder on a constitutional question that comes first: whether the lawsuit even belongs in a federal court.

    During the arguments, Justice Elena Kagan noted: “I'm not sure I understand it as a threshold claim that . . . the claim is not recognizable at all.” And Justice Anthony Kennedy asked: “You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.” Does Hobby Lobby have standing to sue?  For a federal judge to hear a case, Article III of the Constitution requires there to be a “Case or Controversy.” The Supreme Court has interpreted the requirement to mean that a plaintiff must suffer a "concrete injury" to its own interests – and not those of others – in order to sue. The Court has kicked out cases holding that a "mere interest in a problem" was not concrete enough. The Court has only in unusual cases allowed a third-party to sue on behalf of another, like an employee, owner, or customer. 

    These companies say that they suffer direct harm: the contraception mandate costs them money. That is what the Tenth Circuit in Hobby Lobby briefly noted: the companies “face an imminent loss of money, traceable to the contraceptive-coverage requirement.” But even if that is true (which was the subject of tough questions at the arguments), paying that money does not directly affect any individual’s ability to freely exercise religion. Only the employees and officers can directly exercise their individual religious beliefs. And they are not the ones paying to comply with the regulations. They are separate from the company.