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Yale Law School Faculty Scholarship
1-1-1977
Judicial Review, Justiciability and the Limits of the
Common-Law Method
Lea Brilmayer
Yale Law School
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JUDICIAL
JUSTICIABILITY AND THE
JUDICIAL REVIEW,
REVIEW, JUSTICIABILITY
COMMON LAW METHOD
LIMITS OF THE COMMON
METHOD
R. L.
I.
I.
BRILMAYER*
BRILMAYER*
INTRODUCTION
INTRODUCTION
The Supreme
Supreme Court frequently interprets
interprets such
such provisions
provisions as the first,
fourth and fourteenth amendments
amendments in resolving complex
complex questions concerning the protection
protection of substantive constitutional
constitutional rights. One enduring
enduring
controversy in constitutional
source of controversy
constitutional litigation, however,
however, does not directly involve any of these provisions, although
implications for all
although it has implications
of them. This is the doctrine of
ofjusticiability-a
and
justiciability-a doctrine
doctrine of procedure
procedure and
jurisdiction
prescribes the appropriate
appropriate form for initiating chaljurisdiction which prescribes
lenges to the validity of government
government actions.
III' and in basic perceptions
Grounded in the language
language of article lIP
perceptions of the
the
nature of judicial review, this doctrine imposes limitations upon access to
determinative of the substantive
federal courts and therefore is frequently
frequently determinative
rights that those courts ultimately
vindicate. After decades of litigation
ultimately vindicate.
and debate, the purposes and scope of justiciability limitations remain in
dispute. Two aspects of existing
existing doctrine draw the sharpest criticisms
from scholars and practitioners:
practitioners: standing-whether
standing-whether the litigant
litigant before the
court
action-and
court is a suitable
suitable party
party to challenge particular
particular government action-and
ripeness-whether the harm
harm complained
ripeness-whether
complained of by a litigant is sufficiently
sufficiently immediate to warrant adjudication.
According
According to traditional theory, justiciability
justiciability limitations derive from the
Marbury v. Madison,
Court's decision in Marbury
Madison,22 in which Chief Justice
Justice Marshall
justified judicial
judicial review of federal legislation
legislation as merely an ordinary incicase-deciding function of common law courts. Under this line
dent to the case-deciding
of reasoning, review is not appropriate
appropriate absent a "case"; and standing and
and
"cases" and other,
ripeness provide criteria
criteria for distinguishing between
between "cases"
nonjusticiable disputes. However,
nonjusticiable
However, scholars have argued that Marshall's
reliance upon the common law case method for his justification of review
is misplaced
misplaced 33 and have charged
charged that the doctrinal formulations growing
growing
outmoded and confused.
out of this reliance are outmoded
confused.44 The Supreme Court
** Associate
Law, Columbia
Columbia University
School of
of Law.
University of
California at
Associate in
in Law,
University School
Law. B.A.,
B.A., University
of California
at
Berkeley,
Berkeley, 1970; J.D., 1976.
The author
wishes to
author wishes
acknowledge the
the helpful
helpful comments
comments of
The
to acknowledKe
of members
members of the faculty of the
Columbia University School of Law.
Law. I also wish to thank Professor Paul J. Mishkin of the
faculty of
of the School of Law, University of California
California at Berkeley, whose inspired
inspired teaching
teaching
faculty
supplied the
initial incentive
incentive for
this article
encouragement helped carry it to
whose encouragement
supplied
the initial
for this
article and whose
completion.
1 U.S. Const. art. III, § 2.
(1 Cranch) 137
(1803).
2 5
5 U.S. (I
137 (1803).
See, e.g.,
e.g., A. Bickel,
(1962); C. Black, The People and the
3' See,
Bickel, The Least Dangerous
Dangerous Branch (1962);
(1960); L. Hand, The Bill of Rights
(1958).
Court (1960);
Rights (1958).
The Citizen
in Public
Public Actions:
The Non-Hohfeldian
Non-Hohfeldian or
or Ideological
Ideological
•4 Jaffe,
Jaffe, The
Citizen as
as Litigant
Litigant in
Actions: The
Plaintiff,
116 U.
U. Pa.
Pa. L. Rev. 1033
Monaghan, Constitutional
(1968); Monaghan,
Plaintiff, 116
1033 (\968);
Constitutional Adjudication:
Adjudication: The Who
and When,
When, 82
82 Yale
Yale L.J.
L.J. 1363
1363 (1973);
the Supreme
Supreme Court-A
Court-A Functional
and
(1973); Scott,
Scott, Standing
Standing in
in the
Functional
Analysis,
(1973).
Analysis, 86
86 Harv.
Harv. L. Rev. 645 (1973).
807
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itself has acknowledged
acknowledged that established
established standards
standards are vague and inconsistently applied. 55 Those attacking Marshall's justification
justification of review,
review, and the
the
approach
to
justiciability
that
has
evolved
from
it,
have
proposed
approach justiciability
evolved
proposed alternative models that purport
common
purport not to rely upon traditional elements
elements of common
law adjudication to regulate
consider
regulate the form in which federal courts consider
6
legal
legal disputes. 6
This article will argue that it would be a serious
serious mistake for the Supreme Court to renounce
renounce the traditional
traditional approach
approach to justiciability,
justiciability, with its
constitutional challenges be made in proceedings that reinsistence that constitutional
justiciability have not
semble common law cases. While the doctrines of justiciability
articulated in the past, they are, for the most part, sound.
been well articulated
Whatever the defects in Chief Justice
Justice Marshall's derivation
derivation of the power
power
of judicial
of
judicial review,
review, the common law method of establishing
establishing principles
principles of
law through
through the decision of particular cases remains the most appropriate
way for courts to perform judicial
judicial review. Thus, traditional
traditional limitations
limitations are
not merely
merely a relic from the days of Chief Justice Marshall,
Marshall, but rather an
an
integral
integral part of the present success
success of the reviewing
reviewing function. The impordoctrines, and of the traditional common
common law model in
tance of these doctrines,
general,
general, becomes readily apparent if, as will be attempted here, one
adjudication-the judireconstructs the connection between
between common law adjudication-the
cial function of applying law to cases-and
cases-and judicial review-the
review-the power to
disregard the dictates
dictates of those laws when they conflict with the Constitution.
II.
A.
A.
JUDICIAL
AND THE DECIDING
JUDICIAL REVIEW AND
DECIDING OF CASES
The Logic of Marbury
Central
explanation of the constitutional
Central to Chief Justice
Justice Marshall's
Marshall's explanation
basis for judicial
written
Marbury v. Madison
Madison was the fact of a written
judicial review in Marbury
constitution. For Marshall, the existence of the Constitution necessarily
established
superiority over conflicting
established its superiority
conflicting acts of legislation: the Framers
had laid down certain principles
government in writing to ensure that
principles of government
the limits of those principles
principles would not be transgressed.
transgressed. Unless the provisions of the resulting document
document controlled
controlled contrary
contrary laws, such an attempt
at limitation of government
government would have been no more than a futile
Serv. Orgs., Inc. v. Camp, 397 U.S.
• See, e.g., Association of Data Processing
Processing Servo
U.S. 150, 151
("[gleneralizations about standing to sue are largely
(1970) ("[g)eneralizations
largely worthless
worthless as such");
such"); Flast v.
Cohen, 392 U.S. 83,
(1968).
98-99 (1968).
83, 98-99
The
problem of
of standing
surrounded by
the same
The problem
standing is
is surrounded
by the
same complexities
complexities and vagaries that
inhere in
in justiciability.
[concepts]
inhere
justiciability. Standing has been called one of "the most amorphous [concepts)
law."
public law."
in the entire domain of public
quoting Hearings
Subcomm. on Constitutional
Constitutional Rights
Id., quoting
Hearings on S. 2097 Before
Before the Subcomm.
Rights of the Senate
Senate
Judiciary Comm.,
Cong., 2d
Sess. 465,
465, 498 (1966)
2d Sess.
Judiciary
Comm., 89th
89th Cong.,
(1966) (statement
(statement of Professor Paul A.
Freund).
6 Chayes, The Role of the
in Public
Public Law
6 Chayes, The Role of the Judge
Judge in
Law Litigation,
Litigation, 89 Harv.
Harv. L. Rev. 1281 (1976);
(1976);
Monaghan, supra
note 4;
4; see
see Berger,
Standing to
Sue in
Actions: Is
It a Constitutional
supra note
Berger, Standing
to Sue
in Public
Public Actions:
Is It
Constitutional
Monaghan,
Requirement?,
78 Yale
816 (1969);
Jaffe, supra
Requirement?, 78
Yale L.J. 816
(1969); Jaffe,
supra note 4; Vining, Direct Judicial Review
and the Doctrine of Ripeness in Administrative Law, 69 Mich.
Mich. L. Rev. 1443 (1971).
(1971).
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1977] JUSTICIABILIIY
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AND THE COMMON
COMMON LAW
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METHOD
1977]
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exercise. 77 The
The power of
of courts to identify
identify those laws in actual conflict with
the Constitution then
then followed naturally from the Chief justice's
Justice's assumption that the Constitution
Constitution was not
not merely paramount, but a paramount
paramount
law:"8
species of law:
It is, emphatically, the province and duty of
of the judicial department,
It
to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws
operation
conflict with each other, the courts must decide upon the operation
it a law be in opposition to the constitution; if both the
of each. So, if
law and the constitution apply to a particular case, so that the court
must either decide that case, conformable to the law, disregarding the
constitution; or conformable to the constitution, disregarding the law;
the court must determine which of these conflicting rules governs the
duty. 9
case: this is of the very essence of judicial duty.9
Marshall's confidence in the strength of his logic, few
Notwithstanding Marshall's
10
commentators have found it persuasive
persuasive as a justification
justification for review. 1o
Professor Bickel was particularly forceful in attacking
attacking Marshall's
Marshall's approach
approach
to what Bickel saw as "the
"the real question"
question" of MarburyI'-whether
Marburyll-whether the courts
superior constitutional text:
were competent to interpret an admittedly
admittedly superior
If
two
laws
conflict,
a
court
must
obey
the
superior
one. But Marshall
If two laws conflict,
[Marbury]) that a statute's repugindeed, it was true in [Marbury])
knew (and, indeed,
nancy to the Constitution is in most instances
instances not self-evident; it
It is,
IS,
rather, an issue of policy that someone
someone must decide. The problem
problem is
who: the courts, the legislature itself, the President, perhaps juries for
purposes of
of criminal
criminal trials,
purposes
trials, or ultimately and finally the people
process?1 2
the electoral
through the
through
electoral process?12
To this,
Marbury provides only a partial response in the form of MarTo
this, Marbury
shall's argument
argument from limitations-that the legislature should
should not be allowed
to
determine
the
extent
of
its
own
constitutionally
lowed to determine the extent
constitutionally limited
limited powers.
powers.
But, as Professor Bickel pointed
out, 13 such an argument
pointed out,13
argument proves
proves nothing
because
because it is equally
equally applicable
applicable to the judiciary.
judiciary.
sufficient explanation
explanation in
Chief Justice
Justice Marshall
Marshall may not have
have offered sufficient
in
Marbury
Marbury to
to show
show aa relationship between
between judicial review and judicial func14
however, have adhered
adhered to his basic perception that
tion. 14 Later courts, however,
5 U.S.
(1 Cranch) at 176-77.
U.S. (I
176-77.
The assumption
implicit rather
than explicit:
explicit: "The
The
assumption was
was implicit
rather than
"The constitution
constitution is
is either
either aa superior
superior
paramount law,
law, unchangeable
unchangeable by
it is
with ordinary
legislative
paramount
by ordinary
ordinary means,
means, or
or it
is on
on a
a level
level with
ordinary legislative
acts,
shall please
alter it."
id. at
and, like
like other
other acts,
acts, is
is alterable
alterable when
when the
the legislature
legislature shall
please to
to alter
it." [d.
at 177.
177.
acts, and,
9
177-78.
9 Id.
[d. at 177-78.
11
Professor Black,
Justice Marshall's
agreed in
in general
'0 Professor
Black, while
while rejecting
rejecting Justice
Marshall's logic,
logic, agreed
general terms
terms with
with
his treatment
by the
the courts.
his
treatment of
of the
the Constitution
Constitution as
as a
a species
species of
of law
law to
to be
be interpreted
interpreted by
courts. C.
C. Black,
Black,
supra
6-7, 26. Other
critical, sometimes
supra note
note 3,
3, at
at 6-7,26.
Other commentators
commentators have
have been
been more
more critical,
sometimes scathingly
scathingly
so.
cited in
notes 3-4
supra.
See authorities
authorities cited
in notes
3·4 supra.
so. See
"
Bickel, supra
3-4.
11 A.
A. Bickel,
supra note
note 3,
3, at
at 3-4.
12 d. at 3.
l2 [d. at 3 .
"IId. at 3-4; see Marbury v. Madison, 5 U.S. (1 Cranch) at 178-79.
• 3 [d. at 3-4; see Marbury v. Madison, 5 U.S. (I Cranch) at 178-79.
14 See, e.g., A. Bickel, supra note 3, at 3; G. Gunther, Cases and Materials on Constitutional
,.
See, e.g., A. Bickel, supra note 3, at 3; G. Gunther, Cases and Materials on Constitutional
Law
course, to
Marshall's logic
not
Law 17
17 (9th
(9th ed.
edt 1975).
1975). Of
Of course,
to dismiss
dismiss Justice
Justice Marshall's
logic in
in Marbury
Marbury is
is not
necessarily to
necessarily
to deny
deny the
the significance
significance of
of his
his treatment
treatment of
of the
the Constitution
Constitution as
as law.
law. See,
See, e.g.,
e.g.,
Monaghan,
at 1365.
"That the
the Constitution
to be
'ordinary law'
Monaghan, supra
supra note
note 4,
4, at
1365. "That
Constitution was
was LO
be applied
applied as
as 'ordinary
law'
7
8
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constitutional interpretation
of
interpretation belongs squarely
squarely within the framework of
common law adjudication
adjudication1l55 with its traditional
traditional emphasis upon the resolution of legal issues through the process
process of deciding
deciding cases. A natural, if not
necessary,
corollary
of
Marshall's
premise
that the power of judicial
necessary,
judicial review is an incident
of
the
obligation
of
courts to "apply the rule to
incident
particular
such
particular cases" is that, absent a traditional case, courts must lack such
power. 1166 It is this inference,
inference, which
which through the "judicial
')udicial power" and
and
"cases and
and controversies"
controversies" language
language of
"cases
of article
article III 17 has continued to
influence the Supreme Court's regulation of federal jurisdiction,18
jurisdiction,'" that
has been the target of recent criticism. Commentators
Commentators have charged
charged that
that
no such limitation upon judicial competence
competence does or should exist, and that
that
in fact the traditional
traditional "case" model of review
review is neither appropriate
appropriate to nor
nor
reflective
litigation. 199
reflective of the realities
realities of modern public law litigation.t
The response
of
response to such views must be sought in Marshall's
Marshall's "essence of
20
judicial
duty"
-the
traditional
case-deciding
functions of the common
common
judicial duty"2°-the
...in resolving
...
resolving claims
claims of litigants was aa marked advance, squarely rejecting as it did the view
of judicial tribunals."
Id.,
that the document stated only political rules beyond
beyond the cognizance
cognizance ofjudicial
tribunals." [d.,
citing
citing Corwin, Marbury
Marbury v. Madison
Madison and the Doctrine
Doclrine of Judicial Review, in I Selected
Selected Essays
on Constitutional
(1938). See generally
generally C. Black, supra
Constitutional Law 128, 146-47 (1938).
supra note 3.
3.
IS See Monaghan, supra note 4, at 1365-68 (elaboration of "private rights model").
..
See Monaghan, supra note 4, at 1365-68 (elaboration of "private rights model").
16 A. Bickel, supra note 3, at 114-15:
16 A. Bickel, supra note 3, at 114-15:
Constitution
If, as Marshall argued,
argued, the judiciary's power to construe
construe and enforce
enforce the Constitution
against the other departments is to be deduced from the obligation
aKainst
obligation of the courts to
dcide
decide cases conformably
conformably to law, which may sometimes
sometimes be the Constitution,
Constitution, then it must
must
.... It follows that courts
follow that the power may be exercised only
only in a case ....
courts may
in the abstract, by way of opinions advising
make no pronouncements
pronouncements in the large
large and In
advising
the other departments
departments at their request;
request; that they may give no opinions, even in a
concrete case,
decisive, the power
of
concrete
case, which are advisory because
Decause they are not
not finally deCisive,
power of
ultimate disposition of the case having
having been reserved elsewhere;
elsewhere; and that they may not
decide non-cases, which do not require
require decision because they are not adversary
adversary situadecide
tions and nothing ...
... hangs on the result. These are ideas central to the reasoning
reasoning in
Marbuy
Madison. They constitute
Marbury v. Madison.
constitute not so much limitations of the power
Rower of judicial
judicial
review as necessary supports for Marshall's
Marshall's argument
argument in establishing it. The words of art
that are shorthand
shorthand for these ideas are "case
"case and controversy"
controversy" and "standing."
iT U.S. Const. art. III, § 2.
17 U.S. Const. art. II I, § 2.
Is See, e.g., Warth v. Seldin, 422 U.S. 490, 498-500 (1975); Association of Data Processing
18 See, e.g., Warth v. Seldin, 422 U.S. 490, 498-500 (1975); Association of Data Processing
Serv. Orgs., Inc. v. Camp,
151-52 (1970);
(1970); Flast v. Cohen,
Camp, 397 U.S. 150, 151-52
Cohen, 392 U.S. 83,
83, 94-95
(1968);
supra note 3, at 113-16. Aetna Life
life Ins. Co. v.
v. Haworth,
Haworth, 300 U.S. 227
A. Bickel, supra
(1968); A.
(1937),
description of a traditional article
"case or conarticle III "case
(1937), contains a frequently cited description
troversy."
troversy."
A
appropriate for judicial
judicial determinaA "controversy" in this sense must be one that is appropriate
tion.
tion. A justiciable
justiciable controversy
controversy is thus distinguished
distinguished from
from a difference
difference or dispute
dispute of a
hypothetical
academic or moot. The controversy
character; from one that is academic
controversy
hypothetical or abstract character;
must be
concrete, touching the legal relations of parties having
having adverse
be definite
definite and concrete,
legal
substantial controversy
relief
legal interests.
interests. It must be a real and sUDstantial
controversy admitting of specific
speCific relief
through
advising
through a decree of a conclusive character,
character, as distinguished from an opinion
opinion advising
what the law would be upon a hypothetical state
of-facts.
state of
facts.
Id.
395, 401
(1975);
[d. at 240-41
240-41 (citations omitted);
omitted); see, e.g., Preiser v. Newkirk, 422 U.S. 395,
401 (1975);
United
1, 4 (1974)
Nat'l Corp., 419 U.S. 1,4
(1974) (per curiam); North Carolina
Carolina v.
United States v. Michigan Nat'l
Rice, 404 U.S. 244,
(1971).
244, 246 (1971).
'9E.g., Chayes,
19
Chayes, supra
supra note 6, at 1283-84 ("[w]hatever its historical validity, the traditional
model is
clearly invalid
invalid as
as aa description
description of
much current civil litigation in the federal district
model
is clearly
of much
district
courts"); Monaghan,
Monaghan, supra
supra note 4, at 1368
1368 ("[w]hile
("[w]hile one can readily
readily agree that the Court
Court
rather
review], it is by no means
rather than
than the political branches
branches is uniquely suited [to the task of review],
ordinary litigation concerning private rights"). See also
also
evident that it should
should be
be a function of ordinary
id.at 1368-71
id.
1368-71 and authorities cited therein.
20 5 U.S. (1 Cranch) at 178.
20 5 U.S. (I Cranch) at 178.
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1977] JUSTICIABILI1Y
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LAW METHOD
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1977]
811
law courts.
courts. An analysis of
of these functions affirms the continued
continued sigestablished restrictions upon the power of courts to
nificance of certain established
Such restrictions are equally applicable to common
revise pre-existing law. Such
and constitutional decisionmaking
decisionmaking and provide continuing justificalaw and
traditional requirement
requirement that constitutional
constitutional determinations
determinations be
tion for the traditional
proceeding resembling a common law case.
made only within a proceeding
Case Method and the Rule of Law
Law
B. The Case
of
The central feature of the common law judicial model is the doctrine of
stare decisis, which dictates that courts should resolve legal disputes by
reference to past cases or precedent. The doctrine is distinctive in its
accommodation between the need for authority and the need for discreaccommodation
of
tion, between the constraints of the rule of law and the demands of
21
past
individual justice. 21
In focusing upon the relationship between the past
of
and present patterns of fact, stare decisis circumscribes the ability of
individual judges to make new law while allowing them a measure of
circumstances of particular
particular cases.
discretion to consider the circumstances
cases.
Historically,
Historically, centralization
centralization of judicial
judicial authority may have accounted
accounted for
22
Administrative considthe emergence
emergence of the doctrine of stare decisis. 22
Administrative
erations alone would require that lower and appellate courts in a complex,
modern legal system adhere to precedent. A more profound basis for the
doctrine,
government
doctrine, however, is that it is essential to the functioning of a government
certain law-declaring
law-declaring role, then they must
of laws. If courts are to have a certain
themselves be constrained
constrained by rules that dictate the relationship
relationship between
between
the judiciary
judiciary and society. One such rule is consistency of treatment;
treatment; in a
elementary fairness requires that similar cases be decided
decided
society of laws, elementary
23
encourages consistency
in a similar fashion. 23 Adherence
Adherence to precedent encourages
and, at the same
same time, protects
protects the judicial process itself by preventing
preventing the
biases of individual judges
development of rules of
judges from tainting the development
of
24
law. 24 Additionally,
Additionally, stare decisis
decisis ensures the predictability
predictability of legal
legal conseparticular future acts. In aa legal system that attempts to
quences of particular
regulate society
society in
in aa rational
rational manner
manner by
regulate
by guiding primary
primary conduct, the
members of society must be able to rely upon prior declarations of what is
25 As Holmes
or is not prohlbited.
prohibited. 25
"People want to know under
wrote: "People
under
21 See R. Dworkin, Taking Rights Seriously ch. 4 (1977); L. Fuller, The Morality of Law
2\ See R. Dworkin, Taking Rights Seriously ch. 4 (1977); L. Fuller, The Morality of Law
ch.
2 (rev.
(rev. ed.
ch.2
ed. 1969);
1969); J.
J. Rawls,
Rawls, A
A Theory
Theory of
of Justice
Justice 54-60,
54-60, 235-43
235-43 (1971).
(1971).
22 See J. Salmond, Jurisprudence § 54 (7th ed. 1924).
22 See J. Salmond, Jurisprudence § 54 (7th ed. 1924).
23 R. Dworkin,supra note 21, at 113;J. Rawls,supra note 21,at 57-59, 237; see J. Salmond,
23 R. Dworkin, supra note 21, at \l3; J. Rawls, supra note 21, at 57-59, 237; see J. Salmond,
supra note
James, Civil
Civil Procedure
Procedure 27-28
of
supra
note 22,
22, §§ 60,
60, at
at 198-99.
198-99. Cf.
Cf. F.
F. James,
27-28 &
& n.8
n.8 (1965)
(1965) (discussion
(discussion of
stare
traditional cases).
cases).
stare decisis
decisis factors
factors and
and characteristics
characteristics of
of traditional
24 See J. Rawls, supra note 21, at 235. But see R. Wasserstron, The Judicial Decision 78
24 See J. Rawls, supra note 21, at 235. But see R. Wasserstron, The Judicial Decision 78
(1961)
(past decisions
embody biased
(1961) (past
decisions may
may themselves
themselves embody
biased social policies).
25 See
at 56.
25
See J.
J. Rawls,
Rawls, supra
supra note
note 21,
21, at
56. Although
Although both
both predictability
predictability and
and consistency
consistency derive
legal
implications of
broader implications
of what
what
legal authority
authority from
from past
past decisions,
decisions, predictability
predictability involves
involves broader
Professor
"publicity" in
of rules accepted
the need
need for
for "publicity"
in aa system
system of
accepted by society:
Professor Rawls
Rawls refers
refers to
to as
as the
The publicity
the rules
an institution
institution insures
those engaged
know what
what
The
publicity of
of the
rules of
of an
insures that
that those
engaged in
in it
ifknow
limitations
to expect
of one
one another
another and
are permissilimitations on
on conduct
conduct to
expect of
and what
what kinds
kinds of
of actions
actions are
ble.
There is
in aa
ble. There
is aa common
common basis
basis for
for determining
determining mutual
mutual expectations.
expectations. Moreover,
Moreover, in
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what circumstances
circumstances and how far they will run the risk of coming
coming against
against
*26
....
themselves
than
stronger
much
so
is
what
much stronger
themselves. . . ."26
Although
Although these features of the common
common law preserve the neutrality
neutrality and
unquestioning adherence
precedent may
rationality of our legal system,
system, unquestioning
adherence to precedent
27
cause
undesirable results.
results. 27
The evolution of the common law may be
cause undesirable
enforcement of pre-existing
pre-existing rules that are unresponsive
stultified by the enforcement
significance for judge-made
to changes
changes in society
society or to the significance
judge-made law of the
action or inaction
inaction of other branches
branches of government. Moreover, a basic
tension exists between the manner
manner in which common law decisions are
subsequently applied
initially made and the manner in which they are subsequently
applied
under stare decisis. Seeking
Seeking to resolve current
current disputes, later courts
courts look
application. The rules they find,
to earlier decisions for rules of general application.
according to their literal terms, may
however, while possibly applicable according
different situations in mind, and for this
have been set out with entirely different
application of rules drawn
reason may be wholly inapposite.
inapposite. Mechanical
Mechanical application
from the holdings of earlier decisions would preclude
preclude taking
taking into account
28
the factual variations that inevitably
inevitably develop in later cases. 28
To prohibit a
court from considering
considering the circumstances
circumstances of the dispute before it would
would
considerations of fairness account for the doctrine of
of
be irrational:2299 while considerations
requirement of adherence
adherence to precedent, countervailstare decisis, with its requirement
deviation
ing considerations of fairness in the particular
particular case may require deviation
0
rules. 330
from existing
existing rules.
well-ordered society, one effectively regulated by a shared conception ofjustice, there is
also a public understanding
understanding as to what is just and unjust.
Id.; see id.
id. at 133; id. at 238.
[d.;
26 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 457 (1897).
26 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 457 (1897).
27 Cf id. at 469:
27 Cf id. at 469:
It is revolting to have no better reason for a rule of law than that it was laid down in the
time of Henry IV. It
It is still more revolting ifif the grounds upon which it was laid down
from-blind
have vanished long since, and the rule simply persists from
blind imitation of the past.
28
See A. Bickel, supra note
note 3,
69-70:
28 See A. Bickel, supra
3, at
at 69·70:
[In striking down legislation, the Court]
Court] is not obligated to foresee all foreseeable
relevant cases and to foreclose all compromise. Indeed, it cannot. It
It can only decide the
case before it, giving reasons which rise to the dignity of principle and hence, of course,
have
radiations. But the compelling force of the judghave forward
forward momentum and broad radiations.
ment goes only to the actual case before the Court.
discussing the nature of common
In discussing
common law precedent, Professor Dworkin reaches similar
similar
conclusions by focusing upon the weaknesses of an analogy between statutes and the "rules"
"rules"
derived from past cases:
[A judge] will discover that many of the opinions
opinions that litigants cite as precedents do not
contain any special propositions taken to be a canonical form of the rule that the case
lays down. It
It is true that it was part of Anglo-American
Anglo-American judicial style, during the last
part of the nineteenth century and the first part of this century, to attempt
com ose
attempt to compose
rue in
statements, so that one could thereafter
such canonical statements,
thereafter refer, for example, to
to the
the rule
Rylands v. Fletcher.
But
even
in
this
period,
lawyers
and
textbook
writers
disagreed
about
Fletcher.
about
which
parts
of
famous
opinions
should
be
taken
to
have
that
character.
Today,
in any
which parts of famous opinions should be taken
case, even important
draftsmanship. They
important opinions rarely attempt
attempt that legislative sort of draftsmanshil?'
cite reasons, 10
in the form of precedents ana
and principles, to justify a decision, but it
It is the
decision, not some new and stated rule of law, that these precedents and principles are
taken to justify. Sometimes a judge
Judge will acknowledge openly that it lies to later cases to
to
decided.
determine the full effect of the case he has deciaed.
R. Dworkin, supra
supra note 21,
21, at 110-11 (citation omitted).
29 See J. Rawls, supra note 21, at 239-43.
29 See J. Rawls, supra note 21, at 239-43.
30 Cf. R. Dworkin, supra note 21, at 111 & n.l, 112-13 (reaching similar conclusion but
30 Cf R. Dworkin, supra note 21, at III & n.l, 112-13 (reaching similar conclusion but
proceeding from justification of why courts should ever
ever follow precedent).
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1977] JUSTICIABILITY
JUSTICIABILITY AND THE COMMON
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813
813
The common law decisionmaking
decisionmaking process accommodates
accommodates the potential
for such conflict by providing that past decisions carry precedential
weight
precedential weight
only in factually similar circumstances.
circumstances. The inherent flexibility of the
common law results from the fact that common law judges make legal
decisions
context of applying them. Although a judge is bound to
to
decisions in the context
the extent that the dispute before him resembles
resembles past cases,
cases, he is free to
determination whether
whether
the extent
extent that the factual settings differ. The determination
particular
circumstances are so distinguishable
distinguishable as to warrant a difference
particular circumstances
difference
in treatment
treatment requires,
requires, within the constraints
constraints of principled decisionmaking, an exercise of independent
independent judgment
judgment by the court. While such reevolutionary nature of the common law,
evaluations are crucial given the evolutionary
previously established precedent
the power
power of courts
courts to adjust
adjust previously
precedent derives
solely from the presence
presence of specific facts in the case at bar that demonstrate
strate a need to revise pre-existing
pre-existing rules. To allow courts to revise
revise prior
prior
standards
in
the
absence
of
distinctive
circumstances
would
standards
distinctive circumstances would be to violate
violate
the principles of consistency
therefore
to
underconsistency and predictability-and
predictability-and
therefore
under3
1
law. 31
of law.
the rule
mine the notion of the
rule of
The nature
of
the
factual
distinctions
nature
distinctions that empower
empower courts to revise
revise
existing articulations
of
law
can
be
illustrated
by
analyzing
articulations
illustrated
analyzing the differences
in
judicial treatment
treatment of statutory, judge-made
in judicial
judge-made and constitutional
constitutional rules. A
legislature
of
enacting a statute is not bound by existing declarations of
legislature enacting
legally
democratic body, a legislature
legally recognized
recognized harms. As a democratic
legislature is competent
competent
determinations of policy. Thus, legislatures
legislatures can lay down broad
to make determinations
broad
rules designating certain factual patterns as harms for which
which the courts
are to provide remedies. In contrast, courts
courts faced with situations
situations in which
which
particular
particular litigants seek relief under existing judge-made
judge-made law lack competence
comparable scope. Instead, courts
petence to make
make determinations
determinations of comparable
must focus on the existence
existence of specific
specific individual harm as justification
justification3 for
for
precedent. 321
established precedent.
from established
deviate from
to deviate
limited power
their limited
invoking their
power to
Ordinarily, a court faced with application
application of a statute cannot make
make an
an
independent determination
independent
determination of specific harm requiring a change in the
law. Although the facts of the particular
law.
particular case remain significant
significant with
with
regard
to whether the statute applies,
regard to
applies, the court must recognize
recognize that the
set
legislature has already made the essential determination
determination as to what set
of circumstances
of
circumstances are to constitute a legally remediable
remediable injury. However,
However,
when application
application of the statute would implicate
implicate constitutional considwhen
erations, the situation changes. Clearly,
Clearly, the court
court must first look to the
higher
constitutional text; but the text itself does not provide
higher authority
authority of
of constitutional
provide
aa complete
been
complete answer as to whether
whether the Constitution's strictures have been
violated in
particular instance.
instance.3333 To make such a determination,
violated
in aa particular
determination, the
the
31 Cf. J. Salmond, supra note 22, § 58, at 194 (courts can disregard precedent when a
31 CJ. J. Salmond, supra note 22, § 58, at 194 (courts can disregard precedent when a
different
result would
"contrary to
reason," but
but "[w]henever
is departed
departed from,
from,
different result
would be
be "contrary
to reason,"
"[w]henever aa decision
decision is
the
the law
law is
is sacrificed
sacrificed to
its rational
development").
of the
to its
rational development").
the certainty
certainty of
32 See id. § 60, at 202: "The
prerogative of
of judges
make law
law by
by formulating
formulating and
and
32 See id. § 60, at 202:
"The prerogative
judges is
is not
not to
to make
declaring
it-this pertains
legislature-but to
make law
law by
by applying
applying it. Judicial
declaring it-this
pertains to
to the
the legislature-but
to make
Judicial
declaration, unaccompanied
application, is
is of
of no
authority."
declaration,
unaccompanied by
by judicial
judicial application,
no authority."
3 A
A constitution,
constitution, to
to contain
an accurate
of all
the subdivisions
subdivisions of
of which
33
contain an
accurate detail
detail of
all the
which its
its great
great
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court must
must look to
to its traditional
traditional competence to assess
assess the legal
legal sigsignificance
of
facts
based
on
the
existence
or
nonexistence of
of concrete
concrete
the existence or nonexistence
nificance of
individual injury.
injury.
circumstances, however, the
the relevant
relevant facts
facts are
are themselves
themselves not
not
In certain circumstances,
susceptible ofjudicial
of judicial determination.
determination. In
In such
such cases, the doctrine
doctrine of
of "politi"politisusceptible
cal questions" applies: absent judicially manageable standards for
for detercal
determining the
the Constitution's
Constitution's implications
implications in
in the particular case,
case, courts
courts must
must
mining
relinquish certain issues to the
the definitive judgment of other
other branches of
of
relinquish
34
government.34
individual may
may claim to
to be agaggovernment.
Although aa particular individual
grieved, examination
examination of the
the facts of that
that individual's situation does not
not aid
aid
grieved,
in assessing
assessing the merits of his claim. Rather, the relevant "facts"
"facts" involve
involve
in
competing considerations of
of policy, the constitutional significance of
competing
unable to evaluate. That this situation places limitations
which courts are unable
upon the
the ability of
of the courts to deal with certain types of problems is
is
upon
illustrated by
by the
the Supreme
Supreme Court's initial attempts to remedy legislative
illustrated
3
appropriately to allocate voting power,
malapportionment. 35 In order appropriately
legislative apportionment
apportionment necessarily entails evaluation of legislative facts
legislative
and aa choice
choice among theories of political
and
political philosophy; such determinations
36
Accordingly,
Supreme
are ordinarily considered nonjusticiable. 36
Accordingly, the Supreme
system
Court could not recognize an equal protection challenge to a state system
3
Baker v. Carr
Carr37
1 until it rephrased
of legislative apportionment in Baker
rephrased the
of
apportionment claim in terms of its effect upon the voting rights of
individuals. By interpreting as a private wrong
wrong what was formerly considconsideffectively precluded
ered an ill-advised political structuring, the Court effectively
consideration of political judgments, thereby making possible
consideration
possible judicial
resolution of a previously
resolution
previously nonjusticiable
nonjusticiable problem.
problem.
C.
Case Method and
and "Activist" Approaches to Review
The Case
The
The previous
previous section
section demonstrated
demonstrated that
that the flexibility of the common
common
law case
case method
method is
crucial to
law-declaring function for the courts.
law
is crucial
to any
any law-declaring
The
The basic
basic premise
premise of this analysis is that the Constitution is simply a law
that
the courts
that the
courts must
must interpret
interpret in the ordinary course
course of
of judicial
judicial business.
Such
Such an
an approach
approach contemplates
contemplates an essentially conservative
conservative role for the
the
judiciary
appear to
judiciary and
and may
may thus
thus appear
to ignore
ignore aa significant
significant aspect
aspect of the reviewing
ing function-the
function-the special obligation
obligation of the courts to protect the rights
rights of
of
individuals
the interests
interests of
individuals and
and the
of unpopular
unpopular and unrepresented
unrepresented groups in a
powers
powers will
will admit,
admit, and
and of
of all
all the
the means
means by
by which
which they may be carried
carried into
into execution,
execution,
would
would partake
partake of
of aa prolixity
prolixity of
of aa legal
legal code,
code, and
and could scarcely
scarcely be
be embraced
embraced by
by the
the
human
human mind
mind ....
.... Its
Its nature,
nature, therefore,
therefore, requires
requires that only
only its
its great
great outlines
outlines should
should be
be
marked
. . and
marked ....
and the
the minor
minor ingredients
ingredients which
which compose
compose those
those objects
objects be deduced
deduced from
from
the
the nature
nature of
of the
the objects
objects themselves.
themselves.
McCulloch
17 U.S.
v. Maryland,
Maryland, 17
U.S. (4
(4 Wheat.)
Wheat.) 316,
316, 407 (1819).
(1819).
McCulloch v.
" See generally P. Bator, P. Mishkin, D.
34 See generally P. Bator, P. Mishkin,
D. Shapiro
Shapiro &
& H.
H. Wechsler,
Wechsler, Hart
Hart &
& Wechsler's
Wechsler's The
The
Federal
Federal Courts
Courts and
and the
the Federal
Federal System
System 214-41
214-41 (2d
(2d ed.
ed. 1973)
1973) [hereinafter
[hereinafter cited
cited as
as Hart
Hart &
&
Wechsler].
Wechsler].
35
Baker v. Carr, 369 U.S. 186 (1962);
35 Baker v. Carr, 369 U.S. 186
(1962); see
see Reynolds
Reynolds v.
v. Sims,
Sims, 377
377 U.S.
U.S. 533
533 (1964).
(1964).
"
See Baker v. Carr, 369 U.S.
266-70, 298-99
J., dissenting).
36 See Baker v. Carr, 369
U.S. 186,
186,266-70,
298-99 (1962)
(1962) (Frankfurter,
(Frankfurter,].,
dissenting).
37
369 U.S. 186 (1962).
37 369 U.S. 186
(1962).
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1977] JUSTICIABILITY
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AND THE COMMON LAW
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METHOD
1977]
815
815
fundamentally majoritarian
majoritarian society.
society. It has been
been suggested
suggested that the
the jusjusfundamentally
not
from
tification
for
the
institution
of
judicial
review
should
come
not
should
come
of
judicial
review
institution
tification
constitutional text
text or
or normal
normal case-deciding
case-deciding functions but rather
rather from
from the
constitutional
such
rights
and
interparticular
competence
judiciary
vindicate
such
rights
and
judiciary
to
vindicate
competence
of
the
particular
38
38
such
"activist"
Notwithstanding the
the difference
difference in
in emphasis
emphasis that
that such
ests. Notwithstanding
approaches
approaches to review entail, their effectiveness
effectiveness in practice
practice depends
depends upon
upon
framework that the case method provides.
the framework
protecting the interests
The special
special role
role of the courts in protecting
interests of political
representative governderived from general
general principles
principles of representative
minorities is derived
339
9
ment. In a democracy,
democracy, citizens
citizens exercise
exercise control
control over the
the political
political decisions that affect
affect their lives through their selection
selection of legislative
legislative and executive officials
officials who are
are expected
expected to ascertain, codify and
and implement
implement the
tive
consensus of the majority. Although no individual has a right to imconsensus
government policy, it is the
plementation
plementation of
of his own
own preferred
preferred notions
notions of government
the
opportunity to participate
participate generally
creation of policy
policy that justifies
justifies
generally in the creation
opportunity
imposition of
imposition
of the majority's
majority's consensus upon all
all members
members of society and
and
concurred in its creation. In practice, hownot merely upon those
those who concurred
members are participants
participants in the development
development of consensus;
consensus;
ever, not all members
through minority status, popular
popular prejudice,
prejudice, or historical subordination,
subordination,
denied effective
effective political voice. The principle that those who
some may be denied
bear the burdens
burdens of a decision
decision should participate
participate in its making requires
influence political decisionmaking;
decisionmaking; yet
yet
that affected individuals be able to influence
realities of democracy
democracy give no guarantee
guarantee that those in power will
the realities
unrepresented. Thus, it is argued under the
consider the interests
interests of the unrepresented.
38
The examples of alternative theories of review presented in this section are suggested
38 The examples of alternative theories of review presented in this section are suggested
by Shapiro, Judicial Modesty,
Position, 47 Cornell L.Q. 175
Modesty, Political Reality and Preferred Position,
21. Professor Shapiro attempts an outspoken defense of a
(1962) and R. Dworkin, supra
supra note 21.
(1962)
for
purely
Professor Dworkin sees the source for
purely political justification
justification of judicial activism; Professor
Constitution itself.
derivable in principled terms from the Constitution
judicial activism as derivable
3 See
See Shapiro,
Shapiro, supra
supra note
note 38,
at 185-200.
185-200. Professor
Professor Shapiro argues that the three branches
39
38, at
id. at 189,
189, upon which various
centers," id.
government are essentially coequal "power centers,"
of government
is considered the democratic
democratic will. Under this model,
interest groups operate
operate to develop what is
groups-"minorities"--that
the appropriate task of the courts isis to represent
represent those interest groups--"minorities"-that
centers-the executive and legislative
otherwise lack access to the alternative power
power centers--the
representation set forth in
branches. Id. at 195, 197, 199, 203. Compare the simple theory of representation
branches./d.
the text of this article to the approach to standards of review set forth both in Justice Stone's
(1938),
v. Carolene
famous "footnote
"footnote 4" in United States v.
Carolene Products Co., 304 U.S. 144, 152 n.4 (1938),
where he asks
whether prejudice against discrete
discrete and insular minorities may be
be a special condition,
which tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry;
equal protection cases, e.g., San Antonio Ind.
classification" equal_protection
and in the more recent "suspect classification"
1, 28 (1973)
(1973) (indicia of suspect classifications include
v. Rodriguez, 411 U.S. 1,
School Dist. v.
School
disabilities, or subjected to such a
is "saddled with such disabilities,
evidence that a particular group is
to such aa position of political powerhistory of purposeful unequal treatment, or relegated to
extraordinary protection from the majoritarian political process");
lessness as to command extraordinary
(1971) (use of Carotene
Carolene Products
Products "discrete and
Graham v.
v. Richardson, 403 U.S. 365, 372 (1971)
classification to strict
alienage classification
language in decision subjecting state alienaKe
insular minority" lO!nguage
Roe v.
v. Wade,
Wade, 82 Yale
Comment on Roe
See also
also Ely, The Wages of Crying Wolf: A Comment
scrutiny). See
"they-they"
(1973) (higher scrutiny justified for "we-they" than for "they-they"
L.J. 920, 933 n.85 (1973)
classifications)..
classifications)
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activist
individuals-are to be held to the obligations
activist approach
approach that if such individuals"are
obligations
of society,
within the political
society, and ultimately
ultimately to obtain effective
voice
forum. 44o0
their forum.
process, the courts
courts must
must act
act as
as their
The comparative isolation of the judiciary from the pressures
pressures of the
political
political majority, achieved
achieved through life tenure
tenure and salary protection, is
central
central to the ability of the courts to perform
perform this activist review
review role. The
limitation
limitation of that review
review to cases,
cases, however, adds significantly to its practical feasibility.
feasibility. Unpopular decisions are more likely to gain general acceptance
rather
tance if they appear to be compelled
compelled by the facts of specific cases
cases rather
than motivated by a cavalier
cavalier disregard
disregard for the prerogatives
prerogatives of an elected
elected
branch
government. 41 Moreover,
Moreover, the restrained
branch of government.4l
restrained and incremental nature of the evolution of legal principles through cases may itself serve to
inhibit attempts by already
effective elements
elements of society to influence
influence the
already effective
42
process.
judicial processY
More importantly,
importantly, decisions made in common
common law cases remain in fact
as well as in appearance
appearance within the proper
utilizing
proper judicial domain. In utilizing
judicial power to remedy
remedy societal conditions that the legislature has not
previously designated as harmful, courts may appear to be serving as a
unresponsive to majoritarian pressures;
pressures; however,
source of policy that is unresponsive
judicial review
review need not elevate the opinion of the courts over
over majoritarian will with respect to issues usually deemed legislative in nature. If
If
courts
courts refuse to make legal determinations except in the context of traditional cases, the types of issues that they decide
decide will differ from the issues
of policy appropriate
appropriate for legislative resolution. Rather, the courts
courts will
simply
perform
their
ordinary
task
of
remedying
specific
injuries
suffered
simply
ordinary
remedying
injuries suffered
by particular persons. Limiting
the
judiciary
to
this
task
precludes
Limiting
precludes undue
interference
with
popular
will;
moreover,
it
allocates
to
the courts a task
interference
popular
moreover,
task
for which they have a special competence.
competence.
Restricting challenges
challenges to legislative
legislative action to the form of cases
cases has the
additional advantage of emphasizing
emphasizing the surrogate
surrogate nature of the forum
43
that the courts are expected
If review
expected to provide. 43 If
review of a statute
statute is limited
limited
to a case involving
application
of
the
statute,
then
participation
involving application
participation in the
challenge
challenge will be limited to those persons actually suffering
suffering the statute's
adverse
If the challenge
precedential effect of
adverse impact. If
challenge is unsuccessful, the precedential
of
the decision is thus limited
to
other
cases
involving
similar situations. A
limited
later challenger has freedom to reargue
reargue the statute's invalidity as applied
applied
40 See Shapiro, supra note 38, at 199 ("the Court can best define its special function as the
40 See Shapiro, supra note 38, at 199 ("the Court can best define its special function as the
representation of potential or unorganized interests
representation
interests or values which are unlikely to be
represented
represented elsewhere in government").
government").
41 See generally
4'
gemrally Deutsch, Neutrality, Legitimacy,
Legitimacy, and the Supreme
Supreme Court: Some
Some IntersecPolitical Science,
Science, 20 Stan. L. Rev. 169 (1969) (discussion of the
tions Between
Between Law and Political
Professor Shapiro and those of the judicially
relationship between the theories of Professor
"modest"-Professors Bickel
Bickel and
Wechsler and
Judge Hand).
"modest"-Professors
and Wechsler
and Judge
4" See T. Schelling, The Strategy
42
Strategy of Conflict
Conflict 37 (1960) (similar point made in the general
game theory).
terms of game
4' See
See Shapiro, supra note 38, at 197 (relationship between
43
between the nature of judicial
judicial proceedings and the effectiveness
effectiveness of courts as alternative forums).
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817
817
to him to the extent
extent that he has experienced
experienced the statute's impact
impact in a
different way. The result is a form of representation
that
is
specific to the
representation
judicial
judicial branch: the party
party who participates
participates in a challenge to a statute
represents himself and all others who are in a similar
similar position. Thus, the
consequences in that it
it
common law method
method has salutary procedural
procedural consequences
brings into the legal decisionmaking
decisionmaking process precisely
precisely those persons who
bear the impact of a decision.44
involvement
decision. 44 The level of actual political involvement
made possible by the participation
participation of a few particular
particular individuals in a
challenge may be slight; but it does serve to increase
increase the level
given court challenge
involvement in the political
of involvement
political process
process itself of those unrepresented
unrepresented
groups that this model of review is intended to protect.
The activist
activist model views the judiciary
judiciary as fulfilling important political
legislative branches
functions, as important as those of the executive
executive and legislative
"countermajoritaof government. Under such an approach,
approach, there is no "countermajoritarian difficulty"45
difficulty" 45 with judicial review.
review. 4466 All branches of government are
tested against their responsiveness
responsiveness to the political
political interests of some segment of society and, to the extent that it might be relevant, both courts
representatives can be seen as acting contrary
and elected
elected representatives
contrary to popular will
when they act in accordance
accordance with the Constitution. 4477 However,
However, to treat the
government as functionally similar would be
courts and other branches of government
to ignore
significant aspect of activist review-the unique compeignore another significant
tence of courts to identify and thus to protect such individual rights.
Constitution itself justifies
Under this approach, the structure
structure of the Constitution
court
interference with popular
authority. 48 As a source of specific rights
court interference
popUlar authority.48
.. cf
41 Cf E.
E. Levi,
Reasoning 5 (1949) (emphasizing
participation as
Levi, An
An Introduction
Introduction to
to Legal
Legal Reasoning
(emphasizing participation
litigants, who "are bound
bound by something
something they
source for the compelling force of law over litigants,
helped
helped to make").
'5
45 A. Bickel, supra note 3,
3, at 16-17:
The root difficulty is that judicial
judicial review is a counter-majoritarian
counter-majoritarian force in our system.
. . . [W]hen
declares unconstitutional
of
[W]hen the Supreme Court declares
unconstitutional a legislative act or the action of
an elected executive,
exectitive, it thwarts the will of representatives of the actual people
people of the
here
here and now; it exercises
exercises control,
control, not in behalf of the prevailing
prevailing majority,
majority, but against it.
46 See Deutsch, supra note 41, at 170 (footnotes omitted):
46 See Deutsch, supra note 41, at 170 (footnotes omitted):
.
The starting
starting point for the recent debate has been Judge Hand's
Hand's eloquent
el0ll.uent Holmes
lectures. In
In those
satisfactorily to justify a doctrine
those lectures, Hand confessed
confessed his inability satisfactorily
doctrine
lectures.
of
judicial review that enables
of
ofjudicial
enables a Court not responsible
responsible to the electorate
electorate to nullify acts of
oitical
agencies
deriving
their
powers
directly
from
that
electorate.
Professor
political agencies
their
Professor
echslers essay on neutral
of judicial review in the text
neutraf principles, by rooting
rooting the power ofjudicial
Wechsler's
of the Constitution
Constitution itself, attempts to lay
lay the ghost of judicial
judicial usurpation raised by
Hand.
Shapiro, so to speak,
given-as the normal
accepts as given-as
speak, stands Hand on his head. He accepts
state
policy preferences
preferences for
for
state of affairs-the
affairs--tne very attempt of the Court to substitute
substitute its £olicy
those
of the
tJ:iose of
the political
political agencies
agencies that Hand found so difficult to justify even in exceptional
circumstances.
cIrcumstances.
11 Professor Bickel
47
Bickel apparently
apparently did not realize, see note 45 supra, that if an individual
legislation for reasons
reasons of constitutional
constitutional
legislator should choose to vote against
against popular legislation
Cf. The
78
principle, he too would be acting in a countermajoritarian
countermajoritarian fashion. Cf
The Federalist
Federalist No. 78
(Wright ed. 1961)
1961) (A.
countermajoritarian
(A. Hamilton) (justification of judicial
judicial review as not countermajoritarian
will). See generally
generally
because the Constitution
Constitution itself represents the highest statement
statement of majority will).
14, at 25-36
G. Gunther, supra
supra note 14,
25-36 (competence
(competence of nonjudicial
nonjudicial branches
branches of government
government
independently to interpret constitutional provisions).
48 See R. Dworkin, supra note 21, ch. 5.
46 See R. Dworkin, supra note 21, ch. 5.
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inherently superior to the objectives of the majority,
majority, the Constituthat are inherently
tion places certain limitations upon the range of decisions that can properly be made by that majority.49
majority. 4 9 Because such rights are part of the initial
frame of government,
government, they need no justification
justification for being countermajoritarian.
subject to
majoritarian. Moreover, being objective in nature, they are not subject
discovery
verification through
through the democratic process;
process; they must
discovery and verification
instead be developed
developed through the principled decisionmaking
decisionmaking of the
50
courts. 50
In form, such an argument accords with the thesis of Professor Bickel
that the Constitution and the notion of law in general serve
serve to justify the
51
process: 51
democratic process:
the democratic
injection
into the
injection of principle into
It is a premise
premise we deduce not merely
merely from the fact of a written
written
constitution but from the history
history of the race, and ultimately as a
government should serve
serve
moral judgment
judgment of the good society,
sOCiety, that government
only what we conceive from time to time to be our immediate
not onlr
material needs but also certain
certain enduring
values. This in part is what is
materia
enduring
52
meant by government under
under law.
law. 52
Because legislatures
legislatures are essentially creatures of expediency in a democracy, 53 the role of development
racy,53
development of principle has traditionally and properly
fallen to the courts. According
According to Professor Bickel, it is the common
common law4
task. 54
the courts
prepares the
system of deciding cases that uniquely prepares
courts for
for this
this task.
The traditional method,
method, with its emphasis upon the facts of the specific
case,
decisionmaker, "providing
"providing
case, tends to lengthen the perspective of the decisionmaker,
an extremely salutary
salutary proving
proving ground for all abstractions
abstractions [and
[and being]
conducive,
Holmes, to thinking things, not words,
words, and thus
conducive, in a phrase of Holmes,
' 55
evolution of principle by a process
process that tests as it creates.
creates."55
Time
to the evolution
itself has similar effects; the inevitable delay between enactment of legislation and its application
application to a particular
particular set of circumstances
circumstances enables the
courts
courts to "appeal to men's better nature," and to act in light of "what
opportunity for 'the sober second thought.' "56
"56 In
In
Justice Stone called the opportunity
general terms, traditional cases breed responsible
more general
responsible decisionmaking,
decisionmaking,
49 Id. at 133.
49
[d. at 133.
50 See
See id.
id. at
137-38, 140,
142-47.
at 137-38,
140, 142-47.
50
5'
Professor Bickel,
competence of courts as developers of principle
51 For
For Professor
Bickel, the
the special
special competence
justifies their limited interference
interference with immediate
immediate majoritarian
majoritarian rule, but only insofar as the
of
"passive virtues" of
courts
courts remain
remain ultimately responsible
responsible to the political process through the "passive
supra note 3, at 27-33, 68-72, ch. 4. Such
judicial
Bickel, supra
judicial restraint. See A. Bickel,
Such a compromise
compromise is
possible, and consistent with the concept
concept of majority rule, because Bickel
Bickel sees no inherent
inherent
conflict
"principles" as elucidated
conflict between
between "principles"
elucidated by the courts and popular will; such "principles"
"principles"
are merely immediate
immediate expressions by the courts of those "enduring values"
values" that must
[d. at 24.
24.
ultimately be vindicated or rejected through the operation of political forces. Id.
52 [d;
Id; see
see id.
id. at
at 23-25.
52
23-25.
'3See
See id.
53
id. at 24, 27.
" See id.
id. at 25-27, 69-70, 114-17.
54
114-17.
51[d.
Id. at 26.
55
56 /d.
56
Id.
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controversy leads
"the hard, confining, and yet enlarging
enlarging context of a real controversy
57
sounder and more enduring
enduring judgments.
judgments."s7
to sounder
III.
III.
JUSTICIABILITY AND
AND THE COMMON
COMMON LAW MODEL
A. Expanding
Expanding the Limits of Justiciability
Justuiability
In the ordinary
ordinary run of litigation, decisionmaking
decisionmaking occurs
occurs naturally
within the context of a traditional case. Both the propriety of invoking
invoking the
power of the court and the presentation
assured
presentation of essential
essential facts are assured
without imposition of special doctrinal
doctrinal limitations. The old model of
of
litigation, however, in which legal principles were merely
merely an incidental
incidental
supplemented by
by-product of resolution
resolution of particular
particular disputes, has been supplemented
a new approach
approach in which the individual
individual case may be used as a vehicle for
for
s8 Under
social change. 58
Under the new model, lawsuits
lawsuits are initiated both to
remedy
precedents that will govern future
remedy private harms and to establish precedents
cases. Such lawsuits,
lawsuits, whether
whether intended to vindicate traditional legal rights
of absent
absent parties or the ideological
ideological goals of nontraditional
nontraditional plaintiffs,
involve a significant shift in focus-a shift from concern with final determination
mination of the rights of parties before the court to development of legal
principle
per se.
principle per
Commentators
believed
Commentators who have noted this shift in focus have generally
generally believed
that it does not present substantial
problems.
Under
this
view,
justiciability
substantial
view,justiciability
doctrines would be reduced to a purely functional role; effective allocation of limited judicial resources
controlling
resources becomes
becomes a primary
primary factor in controlling
amenable to judicial
access to the courts and legal challenges become
become amenable
resolution when sufficiently
sufficiently specific
available to ensure that
specific facts are avail'able
clarity.5 9 Even given that courts can
issues are presented with requisite clarity.59
can
60
decline to adjudicate
inadequate form,
adjudicate issues developed
developed in inadequate
form,60
the more
basic question remains whether the development
development of such issues outside
the confines
context
confines of a traditional
traditional case provides
provides an otherwise sufficient context
for adjudication.
adjudication.
Both practical
practical and theoretical
theoretical problems arise in cases in which the
litigant's concern
overshadows his concern
concern with long-range
long-range political goals overshadows
concern
with the immediate
immediate relief requested. The practical problems
problems result from
the litigant's increased
increased willingness deliberately
deliberately to rephrase issues so as to
influence
the
eventual
scope
of
the
decision as precedent. Courts may
influence
ordinarily
rely
upon
the
parties
to
present
ordinarily
present a mass of information from
which independent
judicial
determinations
significance of
of
independent
determinations as to the legal significance
certain
facts
can
be
made.
The
random
quality
of
reliance
upon
injured
certain
injured
" Id. at 115; see id.at 69-70.
[d. at 115; see id. at 69-70.
07
58 See, e.g., United States v. SCRAP, 412 U.S. 669, 687 (1973) (referring to use of legal
08 See, e.g., United States v. SCRAP, 412 U.S. 669, 687 (1973) (referring to use of legal
process as
as aa "vehicle
"vehicle for
the vindication
vindication of
the value
of the
value interests
interests of concerned bystanders").
bystanders"). See
process
for the
generally Chayes,
1365-71.
generqlly
Chayes, supra
supra note
note 6, at 1281-84; Monaghan, supra
supra note 4,
4, at 1365-71.
'9 See, e.g., Scott, supra note 4, at 670-83.
09
60 Monaghan, supra note 4, at 1373.
80 Monaghan, supra note 4, at 1373.
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parties for development
development of facts ensures
ensures the relative
relative neutrality
neutrality of these
these
presentations of noninjured
reliance upon the factual presentations
facts.6611 In contrast, reliance
litigants who seek to challenge government action runs the risk that
judicial
judicial determinations will be made upon a record implicitly
implicitly directed
directed
toward the broader
broader goals of such litigants. Only a litigant with a concrete
concrete
which, although
injury can be relied upon to present
present the significant
significant details which,
their
directed at eliciting the requested relief, are neutral
neutral with respect to their
effect upon the development
development of precedent.
Moreover, litigants lacking
lacking traditional injury might not feel compelled
compelled
Moreover,
to phrase a complaint in terms of facts provable
provable at trial. Rather than
nontraditional plaintiff might seek
seeking specific redress
redress of injury,
injury, the nontraditional
cause
to establish
establish that a particular collection of facts gives rise to a given cause
2
situation-when legal issues are being resolved upon
In such a situation-when
of action. 662
is
claim-the risk of manipulation
a motion to dismiss for failure to state a claim-the
manipulation is
substantial. A plaintiff has almost complete
substantial.
complete control over the factual allegations in his complaint, which ordinarily are taken as true for the pur63
pose of testing the legal sufficiency of the claim. 63
The opposing
opposing party
may be unable at this stage to demonstrate
demonstrate the inaccuracy
inaccuracy of the allegations; moreover, he may have no incentive
incentive to do so if the claim is
weakened
nonspecific manner.6 644 If this were
weakened by presentation
presentation in a broad, nonspecific
to occur, the precedent established
established might have a substantial
substantial effect upon
future litigants but would not be the product
product of litigation in which the
the
parties
made
every
effort
to
adduce
factual
support
for
the
legal
parties
every
sufficiency
sufficiency of their claims.
In addition to the practical problems inherent
inherent in litigation
litigation brought for
for
the sole purpose of creating precedent, compelling
compelling theoretical
reasons
theoretical
require that courts refuse
refuse to entertain
entertain such suits. Earlier in this article,
article, it
was established
that
the
doctrine
of
stare
decisis
and
the
requirement
established
doctrine
requirement of
of
61 Cf Deutsch, supra note 41, at 222-23 (discussing importance of randomness as device
BI Cf Deutsch, supra note 41, at 222-23 (discussing importance of randomness as device
reach the Supreme
Supreme Court).
for controlling issues that reach
62 For an undisguised attempt to manipulate factual allegations in order to establish
B2 For an undisguised attempt to manipulate factual allegations in order to establish
certain precedent,
Morton, 405 V.S.
U.S. 727 (1972).
Sierra Club
(1972). In the Sierra
Club
precedent, see Sierra Club v. Morton,
litigation, the Club sought to halt construction of a recreational development
development in the Mineral
King Valley
Valley on the grounds that federal officials had improperly approved the project in
legitimately concerned
Although the Club was legitimately
concerned with activities in the
violation of federal law. Although
Valley, it had as an additional objective the expansion of the conditions under which public
challen~e agency action. Thus, the Sierra
Sierra Club intentionally omitted
omitted
interest groups could challenge
from its complaint facts sufficient
suffiCient to establish
establish standing under
under traditional
traditional doctrine
doctrine and relied
relied
id. at 735 £1.8,
n.8, 736, 740 £1.15;
n.15;
commitment to
to conservation.
conservation. See Uf.
instead upon its ideological commitment
note 81 and authorities cited infra.
infra.
63 For an example of how
control the
the legal
issues that
the court
court decides
decides
B3 For an example of how litigants
litigants can
can control
legal issues
that the
through the
structuring of
their factual
see Bolling
Boiling v.
v. Sharpe,
through
the structuring
of their
factual allegations,
allegations, see
Sharpe, 347 U.S.
V.S. 497
497
(1954), one of the original desegregation
desegregation decisions. Because the plaintiffs in Bolling
Boiling sought to
(1954),
challenge the
of segregation
segregation per
per se,
se, they
allege that
that the
the schools
schools
the constitutionality
constitutionality of
they did
did not
not allege
challenge
attended by the black children were inferior
inferior to those attended by comparably
comparably situated white
children. R. Kluger, Simple Justice
Justice 521 (1976).
(1976).
children.
64 See Times Film Corp. v.
in A. Bickel,
Bickel,supra
64
v. City of Chicago, 365 U.S.
V.S. 43 (1961),
(l 961), discussed
discussed in
supra
note 3,
Film, plaintiffs applied to the City of Chicago
Chicago for a license to
3, at 133-43. In Times Film,
obscene. They refused, however, to submit a copy of the
exhibit a movie that was potentially obscene.
film to
licensing board,
thereby forcing
an abstract
to the
the constitutionality
to the
the licensing
board, thereby
forcing an
abstract challenge
challenge to
constitutionality of
of
film
prior censorship per se.
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THE COMMON LAW
821
adherence
principles--consistency
adherence to precedent
precedent derive from certain basic principles--consistency
acceptance by society of the
and predictability-that
predictability-that are essential to the acceptance
rule of law. The development
development of precedent
precedent that governs future cases is
not an end in itself;
itself; rather, it is a by-product
by-product of those adjustments
adjustments to
compelled by considerations
considerations of fairness in the
pre-existing rules that are compelled
particular
incremental development
development of precedent
particular case. The limited, incremental
precedent is
necessary
necessary to justify deviation from prior rules and to preserve
preserve the proper
proper
relationship between
between the judiciary and a society
society governed by the rule of
of
law.
himself
law. When a litigant seeks judicial revision
revision of precedent
precedent without himself
considerations of fairness
demonstrating a need to invoke the broader considerations
that allow for such revision, the legitimacy of the law-declaring
law-declaring function
of the judiciary
judiciary is placed in doubt.
Justiciability: Doctrines
B. Justiciability:
Doctrines of Ripeness and Standing
Standing
Justiciability
Justiciability limitations under the common law case method serve generally to prevent the use of the judicial process for the sole purpose of
of
articulating
articulating principles of law rather than for settling
settling the rights of injured
immediacy of harm to the
parties. Ripeness focuses upon the temporal immediacy
litigant while standing focuses upon the nature of the interest
interest the litigant
asserts. While it is too late and would
would indeed be undesirable to deny
adjudication on the ground that the litigant
litigant is motivated
motivated in part by a
65
desire to influence
influence the development
development of the law,
law,65
doctrines of ripeness
and standing
standing serve to meet the risks inherent in such nontraditional
nontraditional
adjudication
adjudication without doing violence to the common law method. They
achieve
with
achieve this objective by ensuring
ensuring that challenges are framed with
specificity-concreteness-and legal issues are presented
sufficient specificity-concreteness-and
presented by
adequate stake
parties having
an adequate
stake in the outcome of litigation-ad66
verseness. 66
One such use of justiciability
justiciability limitations is illustrated
illustrated by the judicial
61 While courts should not entertain challenges
65
challenges in which
which the only motivation
motivation for the suit is
determination of legal principles per se,
a desire for determination
se, neither should they penalize a litigant
on the grounds that he has ideological
ideological purposes in addition
addition to a desire to vindicate his own
own
personal
phrased because of the
personal rights. In such situations, the complaint is specifically phrased
existence of an actual dispute. Furthermore,
existence
Furthermore, denial of a forum on the grounds that the
litigants wish to
to use litigation for political
political purposes
purposes seems to penalize
penalize political
political expression
expression and
and
arguably borders
amendment violation. Cf.
415 (1963)
arguably
borders on a first amendment
Cf NAACP v. Button,
Button, 371
37\ U.S. 4\5
(1963)
(Court invalidated
invalidated on first amendment grounds
grounds state barratry
barratry laws used to prosecute
prosecute the
NAACP
NAACP for sponsorship of test litigation).
litigation).
66
Schlesinger v.
Reservists Comm.
Comm. to
220-21 (1974)
66 Cf.
Cf Schlesinger
v. Reservists
to Stop the War, 418
4\8 U.S. 208,
208, 220-2\
(1974)
(footnote
(footnote omitted):
Concrete
Concrete injury, whether actual
actual or threatened, is that indispensable
indispensable element
element of a dispute
which serves
serves in part to cast
cast it in a form traditionally
traditionally capable
capable of judicial
judicial resolution.
resolution. It
adds the essentia
essential dimension of specificity
specificity to the dispute
dispute by requiring
requiring that the complaining party have suffered a particular injury caused by the action challenged
challenged as unlawful.
unlawful.
This personal
Tliis
personal stake is what the Court has consistently held
held enables a complainant
complainant
to
present
authoritatively
to
a
court
a
complete
perspective
upon
the
adverse
authoritatively
present
complete perspective
adverse conseconsequences
the specific
specific set of facts undergirding
flOWIng from
from the
undergirding his
liis grievance. Such auquences flowing
thoritative
presentations
are
an
integral
part
of
the
judicial
process,
or
a
court
must
rely
thoritative
integral
for
on the parties'
parties' treatment of the facts and claims
claims before it to develop its rules of law.
Only concrete injury
i~ury presents the factual
factual context within which a court, sided by parties
who argue withm
within the context, is capable
decisions.
capable of making
making decisions.
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approach to
to declaratory
declaratory relief.
relief. The
The Declaratory
Declaratory Judgments
Judgments Act
Act6677 allows
allows aa
approach
defendant to litigate
litigate at
at aa point
point when
when prior
prior procedure
procedure would
would
potential defendant
potential
have required
required him
him to
to wait
wait and
and defend.
defend. One
One purpose
purpose of
of the
the Act
Act isis to
to
have
alleviate the
the costs
costs implicit
implicit in
in delaying
delaying adjudication
adjudication of
of the
the validity
validity of
of
alleviate
threatened government
government action.
action. In
In particular,
particular, it was
was thought
thought undesirable
undesirable
threatened
to force
force an
an individual
individual to
to choose
choose between
between forgoing
forgoing his intended
intended course
course of
of
to
conduct and
and running
running the
the risk of
of legal
legal sanctions.
sanctions. Such
Such a procedure
procedure thus
conduct
permits litigation
litigation for the
the sole
sole purpose
purpose of affecting
affecting the outcome
outcome of
of an
an
permits
anticipated, not
not actual,
actual, dispute-a
dispute-a dispute
dispute that would
would occur
occur only
only if
if the
the
anticipated,
government were to undertake
undertake the
the action
action that
that aa potential
potential defendant
defendant
government
challenges. The
The importance
importance of predictability
predictability to a legal
legal system
system that
that reguchallenges.
society by
by guiding
guiding primary
primary conduct
conduct militates strongly
strongly in
in favor of the
the
lates society
availability of some
some such
such determinations
determinations prior
prior to
to arguably
arguably prohibited
prohibited
availability
68
conduct. 68
conduct.
inherent conflict
conflict that
that thus exists
exists between
between the need
need for knowledge
knowledge
The inherent
the probable
probable legal
legal consequences
consequences of future conduct
conduct and the tradiabout the
requirement that legal issues
issues be resolved
resolved only within the
the context
context of
of
tional requirement
actual controversy
controversy is met by the ripeness
ripeness doctrine. Under
Under the
the doctrine,
an actual
courts may not intervene
intervene except in the
the presence
of objective
objective evidence
evidence of a
presence of
courts
69
threat of
of harm or enforcement.
enforcement.69
Ripeness ensures that a court will not be
Ripeness
threat
forced to rely
rely upon
upon a hypothetical
hypothetical factual situation
situation to formulate rules of
of
law with speculative
speculative ramifications.7700 When
When a dispute arises out of a course
course
defendant and the government,
conduct involving
involving both a potential defendant
of conduct
7 1
there is not only
only a need for judicial remedy,
remedy,71
but also a strong incentive
incentive
67 28
§§ 2201-02
(1970); see
Perez v.
v. Ledesma.
Ledesma, 401
82, 111-15 (1971)
67
28 U.S.C.
U.S.C. §§
2201-02 (1970);
see Perez
401 U.S. 82.
(1971) (opinion
of Brennan,
Brennan, J.) (purposes of Act).
68 See Monaghan, supra note 4, at 1394 & n.188; J. Rawls, supra note 21, at 238-40.
68 See Monaghan, supra note 4, at 1394 & n.188; J. Rawls, supra note 21, at 238-40.
to litigation in which the sole purpose is predeThe purposes of the Act do not extend to
termination of legal principles to govern disputes between other parties; however, the
to that end. Whereas
procedural innovations which the Act introduces are readily adaptable to
if any.
any, control over the factual framing of the legal
aa defendant in aa criminal trial has little, if
set
issues, a plaintiff seeking declaratory relief has aa great deal. He need only hypothesize aa set
facts, in
on those facts.
attempt to prosecute him on
of facts and allege that government officials will attempt
set of circumstances. In
constitutional issues upon aa stipulated set
order to
force resolution of constitutional
to force
such aa situation, adjudication of the legal issues would be contrary to the traditional recontroversy
an actual controversy
questions be resolved only within the context of an
quirement that
that legal questions
calling for adjustment and application of prior rules.
69
Enforcement-Pre-Requisite of a Justiciable Controversy, 62
69 See
See Comment, Threat of Enforcement-Pre-Requisite
generally Hart & Wechsler, supra
See generally
(1962). See
supra note 34, at 140-49.
Colum.
111 (1962).
Colum. L. Rev. 106, III
at
supra note 4, at
also Monaghan,
Monaghan, supra
77, 81 (1971).
(1971). See also
70
See, e.g.,
e.g., Boyle v. Landry, 401 U.S. 77,81
70 See,
risk of frivolity
frivolity when declarasubstantial risk
is aa substantial
made that there is
1394,
1394, where the suggestion is made
Professor
facially valid statute. Professor
"as applied"
applied" attack upon aa facially
tory relief isis sought in an "as
process
that the
the criminal process
be required to show that
the defendant should be
argues that
that the
Monaghan argues
Monaghan
the
of the
the constitutionality
constitutionality of the application of
an adequate forum for testing the
provide an
will not provide
will
of
to commencement
commencement of
be concretely presented prior to
applied" issue can be
and that the "as applied"
law and
law
the prosecution.
the
harm when
no harm
suffer no
enforcement, litigants suffer
threat of enforcement,
an immediate
immediate threat
" In the absence of an
"In
to the
the
be advantageous
advantageous to
however, be
of postponement can, however,
adjudication
A period
period of
delayed. A
adjudication is delayed.
other contingencies
contingencies may obviate the
or other
rulemaking, or
enactments, agency rulemaking,
Legislative enactments,
courts. Legislative
courts.
factual
concrete factual
more concrete
allows for
for development of aa more
delay allows
for adjudication.
adjudication. Moreover, delay
need for
need
instances,
In some
some instances,
of the
the issues. In
resolution of
eventual judicial resolution
facilitating eventual
situation, thus facilitating
situation,
grounds
to explore
explore possible grounds
data and to
prepare data
to prepare
the opportunity
opportunity to
take the
interested groups may take
interested
for and
and ramifications of the decision.
HeinOnline -- 57 B.U. L. Rev. 822 1977
THE COMMON
COMMON LAW
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METHOD
1977] JUSTICIABILITY
jUSTICIABILI1Y AND THE
823
factual detail to the attention of
of
for both parties to bring every significant factual
threat of harm is established, that the judgment will
the court. Once a threat
as to the parties guarantees
guarantees that
that the court
court is
have res judicata effect as
not in the abstract but incident
incident to the determinapromulgating rules not
before it. This effect is vitiated if those
tion of the rights of litigants before
issues
presented
for
judicial
resolution
and actually adjudicated fail accuissues
rately
to
reflect
the
facts
of
the
parties'
that a litigant
litigant
rately to reflect the facts of the parties' situation; only proof tha~
faces a substantial threat of harm ensures that the force of res judicata will
be compelling.
The ripeness doctrine allows for adjustment of the literal rules governThe
ing common law decisionmaking to accommodate
accommodate the need for predictability. It thus incorporates
incorporates basic notions about the function of law in
society into a traditional framework of adjudication.7722 The standing doctrine performs a similar function: it ensures the legitimacy of a judicial
process that
that applies principles from previous cases to decide the claims of
of
process
future litigants by requiring
requiring that such principles be derived only as an
an
incident
determining the rights of the parties before the court. For this
incident of determining
reason, it is somewhat analogous to constitutional
constitutional limitations on the permissible res judicata effect
of
a
effect
decision.
Ordinarily,
judicata effects
effects of a
Ordinarily, due process limits the permissible res judicata
judgment upon persons not party to litigation and requires
judgment
requires that persons
who will
will be affected by a judgment have an opportunity to participate
participate in
in
who
its formulation--or, in class action litigation, to be represented by a
73
similarly situated
situated litigant. 73 As the discussion of stare decisis indicated,
however,
even absent
absent res judicata
considerations the precedential
precedential sighowever, even
judicata considerations
74
nificance
of
a
decision
for
later
cases
may
be
substantial.
nificance of a decision
substantial,74 Future litigants
with claims similar
to
those
similar
resolved in a particular case are thus effectively
tively placed
placed in the position of absent members of a class action: they must
rely
upon the
representation provided
provided by
rely upon
the adequacy
adequacy of
of representation
by prior
prior litigants
whose
claims,
when
resolved,
will
yield
certain
principles
of
law. Because
Because
whose claims, when resolved,
the
common
law
model
focuses
upon
the
vindication
of
private
the common law model focuses upon
vindication
private rights
through
limited holdings,
through limited
holdings, the legal principles laid down
down in each case
case are
In
cases," the
In some
some "hard
"hard cases,"
the Supreme Court
Court may prefer
prefer to stage
stage a full-scale dress rehearsal
prior
performance. Compare
v. Seldin,
Seldin, 422
422 U.S.
490 (1975),
(1975), with
prior to
to the
the real
real performance.
Compare Warth
Warth v.
U.S. 490
with Village
Village of
of
Arlington
v. Metropolitan
Corp., 97
(1977). Compare
Compare also
Arlington Heights
Heights v.
Metropolitan Housing
Housing Dev.
Dev. Corp.,
97 S.
S. Ct. 555
555 (1977).
also
DeFunis
v. Odegaard,
416 U.S.
312 (1974),
Bakke v.
Univ. of Cal., 18
DeFunis v.
Odegaard, 416
U.S. 312
(1974), with
with Bakke
v. Regents
Regents of
ofUniv.
18 Cal. 3d
3d
34,
553 P.2d
1152, 132
132 Cal.
cert. granted,
34,553
P.2d 1152,
Cal. Rptr.
Rptr. 680 (1976),
(1976),cert.
granted, 97 S.
S. Ct. 1098
1098 (1977).
(1977). The
The Court
Court
may
Warth v. Seldin,
may even
even suggest
suggest the
the specific
specific details
details itit would
would find
find helpful.
helpful. For
For example,
example, in Warth
the
suggested that
properly phrased
the Court
Court suggested
that aa properly
phrased challenge
challenge to exclusionary
exclusionary zoning
zoning would
would allege
the
the denial
denial of
of aa specific
specific building
building permit.
permit. 422
422 U.S.
U.S. at
at 504.
504. Such
Such aa challenge
challenge was
was subsequently
presented
presented and
and adjudicated
adjudicated on
on the
the merits
merits in
in the
the Arlington
Arlington Heights
Heights case.
case.
72
Law-Declaratory Judgments-1941-1949,
72 See
See Developments
Developments in
in the
the Law-Declaratory
Judgments-1941-1949, 62
62 Harv.
Harv. L. Rev.
787,
793 (1949):
787,793
(1949):
The
adjudication
The modern
modern declaratory
declaratory judgment
judgment procedure
procedure answers the need
need for early adjudication
of
case-adversary system
of legal
legal relations
relations without
without doing
doing violence
violence to the case-adversary
system of
of presenting
presenting
issues
courts. In
useful but
issues to
to the
the courts.
In this
this way
way the
the procedure
procedure supplies
supplies aa useful
but carefully
carefully limited
limited
extension
of
the
judicial
function.
extension
judicial function.
7'
See,
e.g.,
Mullane
v.
Hanover
Bank
Trust Co.,
(1950). See
73 See, e.g., Mullane v. Hanover Bank &
& Trust
Co., 339
339 U.S.
U.S. 306
306 (1950).
See generally
generally Note,
Collateral Estoppel
(1974).
of Nonparties,
Nonparties, 87
87 Harv.
Harv. L. Rev.
Rev. 1485, 1496-97
1496-97 (1974).
Collateral
Estoppel of
74
74 Cf.
Cf. Chayes, supra
supra note 6, at 1294 (discussion
(discussion of
of "stare decisis effect"
effect" of modern
equitable
equitable litigation).
litigation).
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directly
kinds of interests
interests that
that the parties
parties assert. Thus,
Thus, aa
directly connected
connected to the kinds
case
case cannot
cannot establish
establish a legal
legal principle
principle except
except as
as an instance
instance of
of the
the application of that principle
principle to parties
parties whose
whose rights
rights will be affected
affected by it.
it. A
the
judicial
process
method
is
that
both
consequence
of
this
natural
natural consequence
method that both
judicial process and
and
the interests
interests of future litigants
litigants are
are protected
protected from improper
improper representarepresentation: a person
person stating
stating a claim based
based upon
upon alleged
alleged violation
violation of certain
certain
situated
to
those
persons
be
similarly
interests will necessarily
necessarily
similarly
persons whose rights
or claims will be affected
affected in the future.
When
When parties
parties seek to challenge
challenge the validity
validity of
of government
government action, howas
justification
ever, the
the nature
nature of the interests
interests asserted
asserted
justification for invoking
invoking
connected
judicial power may be only indirectly connected with
with the nature of the
the
relief
relief sought.7755 As the link
link between
between the interest
interest asserted
asserted and the type of
of
judicial
judicial intervention
intervention requested
requested becomes
becomes attenuated,
attenuated, the risk of broadly
increases; and further, the focus of the
phrased
phrased challenges
challenges increases;
the court
court shifts
from remedying private
private wrongs to making
making abstract determinations
determinations of
of
corollary risk that the interest
legal principle,
principle, with the corollary
interest asserted by the
plaintiff
plaintiff is merely
merely an excuse
excuse for engaging the court
court in a discussion of
of
objectionable. The doctrine
government practices
practices that the plaintiff finds objectionable.
government
of stare
stare decisis requires
requires that future cases raising similar
similar issues be treated
treated
in similar fashion; however,
however, the plaintiff may, because
because of the nature of his
plaintiffs
adequately to represent
interests in these challenges,
challenges, fail adequately
represent future plaintiffs
who
directly by the challenged
challenged action. As the
the
who may be injured more directly
expansive, the risk of breakimplicit goals of the parties
parties become
become more
more expansive,
down in this system
system increases; thus, in effect, courts may be treating
treating as
"like"
"like" cases that are not in fact sufficiently
sufficiently similar. Here, natural
natural protections of the common law model are absent; courts must thus look to
standing
standing doctrine to ensure the sufficiency
sufficiency of the injury to the plaintiff
plaintiff
requirement is
who seeks to challenge government action. Implicit in this requirement
suit
a judicial inquiry as to who will be affected if the plaintiff loses the suit
and a determination
determination whether the injury alleged by the plaintiff is as
challengers.
serious
serious or of the same kind as that suffered by other possible challengers.
In making
making this inquiry, courts have recognized that in some situations it
may not be possible for affected parties to assert their own constitutional
rights. The doctrine of third party standing delineates the situations in
which it is necessary and permissible to allow a litigant
litigant to raise issues
personal rights. Originally, the general
which do not implicate his own personal
rule was that litigants might not assert the rights of third parties, even in 76
a
stake. 76
personal stake.
had aa personal
undoubtedly had
traditional case in which the litigant undoubtedly
approach, which looks to the similarity of
Under the representational approach,
interest between the assertor of a claim and others who might later assert
TS See, e.g., United States v. Richardson, 418 U.S. 166, 176 (1974) (plaintiff asserted injury
75 See, e.g., United States v. Richardson, 418 U.S. 166, 176 (1974) (plaintiff asserted injury
of Central
Central Intelligence
for attacking
as grounds for
to his right to vote intelligently as
attacking failure of
669, 684-85 (1973)
Agency to make public its budget); United States v. SCRAP, 412 U.S. 669,684-85
for attacking
attacking
justification for
(plaintiffs asserted injury to their enjoyment of natural resources as justification
surcharge on railroad freight rates).
surcharge
76 The
The traditional
traditional example
example is
is Yazoo &
& Miss. Valley R.R. v. Jackson
Jackson Vinegar Co., 226 U.S.
76
362 U.S.
U.S. 17 (1960).
States v. Raines, 362
(1912); see
see United States
217 (1912);
HeinOnline -- 57 B.U. L. Rev. 824 1977
1977]
1977] JUSTICIABILITY
JUSTICIABILITY AND THE COMMON LAW
LAW METHOD
METHOD
825
it, the rationale is clear: litigants
litigants should not be permitted to assert the
claims of groups of which they are not members.
members. There
There is no reason to
refuse adjudication by appropriate
appropriate representatives,
representatives, however, when injured
jured individuals cannot themselves raise their claims,
claims; or when refusal to
to
adjudicate would, for practical reasons, amount to foreclosure of third
party rights.
7 7
For example, in Barrows
sold
Barrows v. Jackson,
Jackson,77 a white landowner
landowner who had sold
property to a black was permitted
to
assert the black's equal
protection
permitted
equal protection
right as a defense in a private suit for breach
breach of a racially
racially restrictive
himself;
covenant. The black buyer had no means of asserting
asserting the right himself;
therefore, no future case could arise in which a black buyer would be
adverse decision in the white seller's
seller's suit. Rejection of the
foreclosed by an adverse
white seller's standing
standing to raise the equal protection
protection defense would have
have
made
covenants, thus injuring
injuring
made other white sellers unwilling
unwilling to violate such covenants,
blacks to the same extent as a loss on the merits. Another
Another third party
standing
Griswold v. Connecticut,78
Connecticut,78 in which a doctor was
standing situation arose in Griswold
allowed to
to assert the privacy rights of his patients as a defense
allowed
defense to a
prosecution for aiding and abetting the crime
crime of using birth control
devices. If
If doctors were unable to challenge
challenge the law, and their convictions
were upheld, the constitutional
constitutional rights of their patients effectively
effectively would
79
be denied. Still a third example is provided
provided by NAACP v. Alabama,
Alabama,79
in
which the NAACP sought to protest an order to supply membership lists
to the state, asserting
amendment rights. The Court
asserting its members first amendment
allowed the group to do so, stating:
allowed
If petitioner's
If
petitioner's rank-and-file
rank-and-file members are constitutionally
constitutionally entitled to
withhold their connection with the Association despite the production
production
order, it is manifest that this right is properly
properly assertable by the
Association.
Association. To require that it be claimed by
by the members
members themselves
would result in nullification
nullification of the right at the very moment
moment of its
assertion. Petitioner is the appropriate party to assert these rights,
because it and its members
identical....
members are in every practical sense identical.
...
The reasonable
reasonable likelihood that the Association itself through diminished
membership may be adversely
afadversely afminished financial support and membership
fected if production
production is compelled is a further factor pointing
pointing towards
our holding that petitioner
petitioner had standing to complain of the produc80
tion order on behalf
behalf of its members. 80
.
As indicated in the Court's discussion, there are two factors that provide
safeguards which substitute for representation
representation through
through similarity
similarity of situation. One is the plaintiff's
concrete stake
plaintiff's own concrete
stake in the dispute: as the Court
noted, the Association itself would suffer diminished financial support
and membership
membership if it were unable to keep its membership
membership lists secret.
Similarly,
Barrows, the constitutional claim constituted
constituted a complete
complete deSimilarly, in Barrows,
fense to the suit for breach of contract;
Griswold, the patients'
contract; and in Griswold,
patients'
77
346 U.S.
U.S. 249
77 346
249 (1953).
(1953).
78
381 U.S. 479 (1965).
78 381 U.S. 479 (1965).
79
357 U.S. 449
(1958).
79 357 U.S.
449 (1958).
80 [d.
Id. at
459-60.
at 459-60.
80
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claims, if successful, would have provided
provided the doctor with a defense to
concrete stake makes it unlikely that a
criminal charges. The presence of a concrete
litigant would
take
unreasonable
risks
with his own case in pursuit of
of
would
unreasonable
long-range goals.
Second,
the
Court
said
that
the
NAACP
goals.
and its members were "in every practical
practical sense identical." Third party standing is most
justifiable
affected individual's
individual's choice
justifiable when the litigant is in some way the affected
of representative.
representative. In NAACP v. Alabama,
Alabama, the persons whose rights were at
stake
afstake had voluntarily chosen
chosen to join the organization;
organization; similarly, the affected parties in both Griswold
Griswold and Barrows
Barrows had voluntarily entered into
relationships with the litigant prior to initiation
initiation of the lawsuit. 8t1 The
relationships
litigants were therefore familiar with the individuals'
individuals' circumstances
circumstances and
and
interests, and were not merely
merely self-appointed
self-appointed champions.
champions. In such situations, there are adequate
adequate safeguards to justify a decision on the merits;
moreover, to refuse
representative standing to raise these
refuse the available
available representative
issues would be to leave the rightholders
rightholders without means of redress.
redress.
Similar
of
Similar considerations
considerations are applicable with respect to the doctrine of
mootness,
mootness, a doctrine which can be subsumed under
under general
general standing
theory.8 2 The basic deficiency of a moot case is that, at some point
theory.82
subsequent to initiation of litigation, circumstances
circumstances have intervened to
subsequent
make personal relief for the particular
particular litigant inappropriate,
inappropriate, thereby
removing the adverse
adverse interest necessary
necessary to justify standing. The courts,
for reasons
effective representareasons directly attributable
attributable to guarantees
guarantees of effective
tion, 3 have been noticeably
tion,83
noticeably less reluctant
reluctant to entertain such challenges
than to entertain other types of disputes in which the plaintiff lacks a
tangible stake. As with litigants who assert the rights of third parties, a
plaintiff whose claim has become
become moot may in some situations
situations be a
representative to enforce the rights of absent parties.
parties. Such a
suitable representative
self-appointed champion; because
litigant is not merely a self-appointed
because he was at one
affected parties, he can be expected to be
time a member of the class of affected
whose rights are still directly at
sensitive to the interests of those persons whose
stake. Moreover, in such cases
cases the issues were framed at a point when
when the
the
litigant did have a concrete
concrete stake in the outcome of the dispute, thus
minimizing the risk of development
development of overbroad
minimizing
overbroad precedent. Finally, and
and
adjudication on mootness
most importantly, complete
complete denial of a right to adjudication
consideration of certain
grounds would effectively
effectively foreclose judicial
judicial consideration
certain legal
84
issues .84
issues.
1 In administrative law, organizations frequently have been held to have standing to
81 In administrative law, organizations frequently have been held to have standing to
assert the
of their
their members.
National Motor
Ass'n v.
v. United
United States,
assert
the rights
rights of
members. See
See National
Motor Freight
Freight Ass'n
States, 372
372
U.S. 246,
247 (1962);
(1962); Stewart,
Stewart, Reformation
Reformation of
of Administrative
88 Harv.
Harv. L.
L. Rev.
1667,
Administrative Law,
Law, 88
Rev. 1667,
U.S.
246, 247
1743
(1975).
1743 (1975).
82 See,
See, e.g.,
supra note
4, at
at 1384;
1384; Tushnet,
Tushnet, The
The New
of Standing:
Standing: A Plea
82
e.g., Monaghan,
Monaghan, supra
note 4,
New Law
Law of
Plea
for Abandonment,
62 Cornell
Rev. 663,
679 (1977).
(1977). See
&Wechsler,
for
Abandonment, 62
Cornell L.
L. Rev.
663, 679
See generally
generally Hart &
Wechsler, supra
note 34,
at 107·20.
107-20.
note
34, at
83 See
See Hall
Beals, 396
396 U.S.
U.S. 45,
45, 49
49 (1969)
(1969) ("[t]he
class of
of
83
Hall v.
v. Beals,
("[t]he appellants
appellants 'cannot
'cannot represent
represent aa class
[which] they
they are
are not
quoting Bailey
Bailey v.
U.S. 31,
[which)
not aa part'
part' "),
"), quoting
v. Patterson,
Patterson, 369
369 U.S.
31, 32-33
32-33 (1962).
(1962).
84
The standard
standard that
Court has
has used
in these
these situations
the challenged
challenged
84 The
that the
the Court
used in
situations is
is whether
whether the
action
is "capable
yet evading
review." Moore
Moore v.
v. Ogilvie,
U.S. 814,
814, 816
816
action is
"capable of
of repetition,
repetition, yet
evading review."
Ogilvie, 394
394 U.S.
(1969),
Southern Pac.
Pac. Terminal
Co. v.
219 U.S.
U.S. 498,
(1911). Thus,
Thus, in
in Roe
v.
quoting Southern
Terminal Co.
v. ICC,
ICC, 219
498, 515
515 (1911).
Roe v.
(1969), quoting
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JUSTICIABILITY AND
METHOD
1977] JUSTICIABILITY
AND THE COMMON
COMMON LAW
LAW METHOD
827
C.
Plaintiffs and
and the Case
Case Method
C. Ideological
Ideological Plaintiffs
Proposals for revision of the standing
standing doctrine have focused primarily
upon whether ideological
ideological litigants are suitable plaintiffs to initiate challenges
government action.8855 Although the previous
lenges to the validity of government
section
for
section illustrated
illustrated that the case method can accommodate
accommodate the need for
constraints of the traditional
certain types of litigation
litigation outside the literal constraints
case, litigation
litigation by purely ideological plaintiffs
plaintiffs exceeds
exceeds the permissible
permissible limits
non-Hohfeldian, 6 plainof such an accommodation.
accommodation. The ideological,
ideological, or non-Hohfeldian,86
tiff does not have traditional
traditional legally protected
protected rights at stake, nor do such
such
plaintiffs have a concrete
concrete interest in the outcome
outcome of disputes in which they
assert the legal rights of parties not before the court. Ordinarily, such
plaintiffs are organizations
organizations that are concerned
concerned about the issue to be
ideology or social conlitigated. The injury sustained, if any, is to the ideology
science
existence of certain
certain
science of the plaintiffs; thus, their challenge
challenge is to the existence
Such
rather than to any impact upon themselves.
themselves. Such
practices or institutions rather
appropriate to the
plaintiffs are unlikely to present a factual record appropriate
formulation of legal principles
principles that will affect future litigants who present
present
similar
similar challenges
challenges to government
government action but who assert more concrete
concrete
injuries as a justification for obtaining
obtaining review. In addition to this defect
defect in
representative
capacity, the use of nontraditional plaintiffs sacrifices an
an
representative capacity,
of courts to the impact
important feature of judicial
judicial review: the sensitivity
impact
87
individuals. 87
affected individuals.
challenged laws upon affected
of challenged
Those who favor an expanded
expanded model of review have suggested
suggested a number of alternative
alternative justifications
justifications for recognizing ideological
ideological plaintiffs as
88
competent
The critecompetent to represent those injured by government
government action. 88
ria that have been proposed
proposed for allowing such challenges
challenges are impracticable, however, and should be applied only in conjunction
conjunction with some variant
variant
Wade,
410 U.S.
113 (1973),
(1973), aa litigant
to challenge
statute limiting
limiting her
her right
right to
to
Wade, 410
U.S. 113
litigant was
was allowed
allowed to
challenge aa statute
an abortion,
abortion, even though she was no longer pregnant
pregnant at the time of the Supreme Court
v. Odegaard, 416 U.S. 312 (1974),
(1974), however, the Court
decision. In DeFunis v.
Court dismissed a
plaintiff denied admission to law school on the
challenge to an affirmative action plan by a plaintiff
grounds that
that the
the lower
lower court had granted
graduation
grounds
granted the requested relief
relief and the plaintiffs graduation
was
The mootness
holding in
in DeFunis
DeFunis did
did not
necessarily preclude
future considwas imminent.
imminent. The
mootness holding
not necessarily
preclude future
consideration of the affirmative action issue,
court's denial of relief
issue, since a lower
lower .court·s
relief in a later case
case
eration
adverseness of the situation pending
pending Supreme Court review. Although
Although
could preserve
preserve the adverseness
the
Court has failed
failed to indicate
indicate decisively
whether an issue must be capable of repetition with
decisively whether
the Court
respect to the same plaintiff, the question
question has been largely
largely obviated by the use of class
& Wechsler, supra
See Hart
Hart &
supra note 34,
34, at 23-29
23-29 (Supp. 1977) (relationship between
between
actions. See
mootness and class actions).
85 See
See generally
generally Berger,
Berger, supra
supra note
Davis, Standing,
Standing, Taxpayers
and Others,
35 U.
Chi. L.
L.
85
note 6;
6; Davis,
Taxpayers and
Others, 35
U. Chi.
Rev. 601 (\
(1968);
Jaffe, supra
supra note 4; Scott, supra
968); jaffe,
supra note 4; Monaghan, supra
supra note 4.
86
The term "non-Hohfeldian" was
adapted from
from Hohfeld,
Fundamental Legal Concep86 The term "non-Hohfeldian"
was adapted
Hohfeld, Fundamental
tions
Applied in
23 Yale
Yale L.J. 16
16 (1913),
by
judicial Reasoning,
Reasoning, 23
(\ 913), and was popularized
popularized by
tions as
as Applied
in Judicial
Professor
Professor Jaffe.
jaffe. See
See generally
generally Jaffe,
jaffe, supra
supra note 4.
" See
note 6,
6, at
at 1307-08;
1307-08; cf.
Litigating Against
the Death
Penalty,
87
See Chayes,
Chayes, supra
supra note
if. Meltsner,
Meltsner, Litigating
Against the
Death Penalty,
82
1111, 1113
1113 (1973)
(1973) ("[ojne
way to promote [the
[the litigation effort)
effort] was to raise the
("[oJne way
82 Yale
Yale L.J. 1111,
entire range
range of capital punishment
punishment arguments
arguments in every
every case where execution
execution was imminent,
thereby
stopping the
the killing
and eventually
eventually presenting
it as
killing and
presenting any
any resumption
resumption of
of it
as likely
likely to
to lead
lead
thereby stopping
to a blood bath").
" See
88
See authorities
authorities cited
cited note 85 supra.
supra.
HeinOnline -- 57 B.U. L. Rev. 827 1977
828
BOSTON UNIVERSI1Y
UNIVERSITY LAW
LAW REVIEW
REVIEW
[Vol. 57:807
of current
challenger
current standing doctrine or in cases in which an ideological
ideological challenger
8899
is supporting a Hohfeldian
plaintiff.
One
such
criterion
is
willingness
to
Hohfeldian
90 A plaintiff's
pay litigation fees. 90
ability
to
cover
the
costs
of
litigation
does
plaintiff's
not ensure
ensure that its interests
interests are the same as those of persons genuinely
injured by the challenged
challenged act; a political action group may well have
91
objectives other than success in the particular case.
case. 91 Ideological
Ideological commitment, another possible substitute for personal
injury,
is similarly unhelppersonal
ful as an indicator
of
a
plaintiff's
competence
as
a
representative.
indicator
plaintiff's competence
representative. The
very fact of ideological zeal may make such plaintiffs
poor
representatives
plaintiffs
92
because they tend to take risks in instituting
instituting broadly phrased challenges.
challenges. 92
Finally, any procedure
procedure for determining which parties are to litigate challenges to government
government action must be administered by the courts. Although under any criterion
expanded model
criterion for an expanded
model of review some
potential plaintiffs must be excluded,93
excluded,9 3 serious questions are raised
raised by the
the
possibility of courts making access
determinations between different
different
access
determinations
groups. 94
ideological groups.94
s" See Scott, supra note 4, at 672-82, 692. While courts should not entertain challenges in
89 See Scott, supra note 4, at 672-82,692. While courts should not entertain challenges in
motivation for the suit is a desire for determination
determination of legal principles
principles per se,
which the only motivation
neither should
should they
they penalize
penalize aa litigant
litigant on the grounds that he has ideological purposes
neither
purposes in
addition to
desire to vindicate his own personal rights. In such situations, the complaint is
is
addition
to aa desire
specifically phrased
existence of an actual dispute. Furthermore,
specifically
phrased because
because of the existence
Furthermore, denial
denial of a
forum on the grounds
grounds that the litigants wish to use litigation for political
political purposes
purposes seems to
penalize political expression and arguably
arguably borders
borders on a first amendment
amendment violation. Cf.
Cf
NAACP v. Button, 371 U.S. 415 (1963)
(1963) (Court invalidated on first amendment
amendment grounds state
barratry
barratry laws used to prosecute
prosecute the NAACP
NAACP for sponsorship of test litigation). Moreover,
Moreover,
organizational
organizational support
support of test litigation is desirable because
because it offers
offers legal services to those
who might
might otherwise
not be able
effectively encourages
otherwise not
able to afford it. Standing
Standing doctrine effectively
who
support of litigation
organization can become
support
litigation on behalf
behalf of private parties
parties because
because the organization
become
involved in court challenges only through a traditional plaintiff.
9'
90 See Jaffe, supra note 4, at 1037-38.
91
e.g., Moore
(1971) (no case or
or
91 See,
See, e.g.,
Moore v.
v. Charlotte-Mecklenburg
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971)
controversy
because both sets of parties to the litigation hoped for a decision upholding
controversy because
upholding state
anti-busing statute as constitutional).
constitutional). Even proponents of an expanded
expanded model of review may
anti-busing
pause
self-appointed representatives
representatives dominating constitutional
pause at the thought of self-appointed
constitutional litigation.
See,
e.g., Chayes,
See, e.g.,
Chayes. supra
supra note 6, at 1310 (use of litigation as a political pressure tactic).
92
See text accompanying notes
61-64 supra
problems). But
see Chayes,
supra
92 See text accompanying
notes 61-64
supra (specificity
(specificity problems).
But see
Chayes, supra
note 6, at 1295 (suggesting that the traditional
competent than the public
traditional plaintiff
plaintiff is less competent
interest
group precisely
precisely because the former has narrower,
narrower, less socially oriented
oriented goals).
interest group
One difficulty
representative is that neither
neither
difficulty inherent in determining
determining the adequacy
adequacy of a representative
party
may be
be willing
willing to
party may
to raise or argue the issue. The plaintiff
plaintiff certainly cannot
cannot be expected to
offer objections
objections to his own standing, and the defendant
defendant will probably permit the plaintiff's
lack
action
of representative
representative capacity
capacity to
to go unnoticed.
unnoticed. This problem
problem has arisen
arisen in the class action
lack of
situation. O.
0. Fiss,
of
problem of conflict of
situation.
Fiss, Injunctions 514 (1972).
(1972). For discussion of the problem
interest, see Dawson, Lawyers
Lawyers and Involuntary Clients in Public Interest
Interest Litigation, 88 Harv.
supra note 87 (discussing possible
examples); Stewart, supra
supra
See Meltsner, supra
possible examples);
L. Rev.
Rev. 849 (1975).
(1975). See
note
(1963) (Harlan,
J., dissenting).
note 81; cf.
if. NAACP v. Button, 371 U.S. 415, 462 (1963)
(Harlan,].,
11
See Monaghan,
note 4,
1371, 1376
expanded model of
of
93 See
Monaghan, supra
supra note
4, at
at 1371.
1376 (suggesting that the expanded
review
would require
limitations upon
upon the
rate at
at which constitutional
review would
require limitations
the rate
constitutional challenges
challenges could be
initiated in
order not
to overwhelm
not to
overwhelm both the courts and other branches of government);
initiated
in order
supra note 4, at 670-73.
Scott, supra
670-73.
9' For
For example,
exclusion of
of plaintiffs
plaintiffs on the grounds that they have not yet demon94
example, exclusion
strated commitment
commitment and
and competence
competence through
strated
through prior litigation
litigation success would run counter to a
basic premise
premise of
of the
the activist
of review-namely,
activist model
model of
review-namely, that
that the courts serve an important
important
basic
function in
providing forums
forums for groups that are not effectively
function
in providing
effectively organized
organized for political
action.
action.
HeinOnline -- 57 B.U. L. Rev. 828 1977
1977] JUSTICIABILITY
JUSTICIABILITY AND
LAW METHOD
1977]
AND THE COMMON LAW
METHOD
829
829
One response
response to the difficulties inherent
inherent in expansion
expansion of the standing
model is to suggest that Congress can confer standing
plaintiffs
standing upon plaintiffs
whom the Court itself would have found to have an insufficient
insufficient personal
95
developments in administrative
stake. 95 This proposal stems in part from developments
administrative
law that have afforded
afforded Congress a role in deciding
deciding who may challenge
agency action. The Court has stated
stated that "Congress may create
create a statutory
right or entitlement the alleged
deprivation of which can confer standing
alleged deprivation
to sue even
even where the plaintiff would
would have suffered no judicially
judicially cogniza96
Accordingly,
ble injury in the absence
absence of statute.1
statute."96
Accordingly, Congress may, pursuant to some enumerated power, enact new legal rights and confer
confer
remedial
remedial rights of action upon private parties
parties as a means of enforcing
enforcing the
right
statute. In some instances
instances Congress may, in effect, create
create a new legal right
accordance with their statutory
simply to have agency
agency officials
officials act in accordance
authorization, doing so by conferring a right to challenge
authorization,
challenge agency action
without first expressly creating a primary private right.9977 This is clearly a
sensible role for Congress: when
when Congress authorizes
authorizes challenges
challenges to agency
action,
Moreover, beaction, it ensures that its own directives will be followed. Moreover,
cause
action is ordinarily
ordinarily self-enforcing
self-enforcing rather
cause agency actioh
rather than requiring
invocation of judicial power, the risk that the stare decisis effect of illconsidered challenges will foreclose later assertion of rights by more
considered
98
is minimal.
directly affected
affected parties is
minimal. 98
When standing to assert constitutional
constitutional rights is in question,
question, however, the
the
somewhat different. Congress may have a role, purrole of Congress is somewhat
competence associated with its enforcement powsuant to the fact-finding
fact-finding competence
99
ers under the fourteenth
to facilitate equal protection
fourteenth amendment,
amendment,99
protection
10 0
challenges to state and local government
government action. loo
challenges
It may even have a role
authorizing challenges
in authorizing
challenges to federal government action implicating
implicating questions at the margin
margin between
between traditionally justiciable issues and political
0
questions.'IOI
' In circumstances
questions.
circumstances such as these, in which the constitutional
constitutional
91 Monaghan, supra
at 1376-79; 7see Tushnet, supra
82, at 665-70.
supra note
nole 4, al
supra note 82,
96 Warth
v. Seldin,
490, 514
514 (1975).
(19 5),citing
Linda R.S.
R.S. v.
Richard D.,
614,
Warth v.
Seldin, 422
422 U.S.
U.S. 490,
citing Linda
v. Richard
D., 410
410 U.S.
U.S. 614,
(1973); see
seeFCC v. Sanders Bros. Radio Station.
Station, 309 U.S. 470 (1939),
(1939), discussed
617 n.3 (1973);
discussed in
Jaffe, supra
supra note
nOle 4,
4, at 1035-36.
91Tushnet, supra note 82,
97
82, at 666-67.
" See Vining, supra note 6, at 1512 (suggesting that pre-enforcement
98
pre-enforcement review of agency
action helps to ensure that the agency will not be able to
to manipUlate
manipulate the choice of both
forum and opponent in order to influence the resolution of the issues). Moreover, the
peculiar status of administrative agencies as both makers and enforcers of rules may require
that
access to
to the
the judicial process be facilitated. See generally
generally Hart & Wechsler, supra
that access
supra note 34,
at 324-72.
91 U.S. Const. amend. XIV.
XIV, § 5.
99
5.
100 See Oregon v. Mitchell, 400 U.S. 112 (1970);
(1970); Katzenbach v.
tOO
v. Morgan, 384 U.S. 641
(1966).
(1966).
101 Some
'01
Some authors have suggested that Congress should have aa broader
broader role in facilitating
challenges to government
government action. See, e.g., Burt, Miranda
Miranda and Title II: A
A Morganatic MarBurt suggests a role that would allow
riage, 1969 Sup. Ct. Rev. 81,
81, 103-18. Professor Burt
Congress
to interpret and enforce constitutional guarantees that the Court would consider to
to
Congress to
involve political questions.
Congress can make
make distinctions among classes that the Court
Court would itself be hard put to
to
because Congress is more sensitively tuned to the
explain on principled grounds both oecause
competing social interests that demand
demand accommodation and because the institutional
institutional
95
99
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830
UNIVERSITY LAW
BOSTON UNIVERSITY
LAW REVIEW
[Vol. 57:807
nonjusticiable, adjudication
issues might otherwise
otherwise be thought nonjusticiable,
adjudication would
would not
jeopardize
jeopardize later assertions
assertions of private rights.
In contrast, in suits that are brought to litigate
litigate challenges to conconsidered traditionally justiciable, there
gressional action that would
would be considered
are serious
serious limitations
limitations upon the power of Congress to provide access to
judicial review. These limitations derive
derive from the courts' ultimate responsafeguarding the accuracy
sibility for safeguarding
accuracy and fairness of the judicial process.
process.
The notion of due process, implicit in the nature of a fair legal system and
and
law, imposes upon the courts an obligation to ensure that the
the rule of law,
decisionmaking
criteria for effective decision
making are met before they make decisions
decisions
that will become part of the body of law governing
governing future cases.
cases. The lack
of res judicata
is
judicata effect of a decision that fails to satisfy these criteria
criteria is
insufficient to justify making the decision
insufficient
decision in the first instance. The principles of predictability
predictability and consistency
consistency inherent in the common law model
significance; due process requires
require that cases
cases have precedential
precedential significance;
decisionmaking
inappropriate
that this significance
significance not be tainted by decision
making in inappropriate
circumstances.
circumstances.
If there is a role for congressionally
who
con~ressionallyauthorized
authorized ideological
ideological plaintiffs who
0 2
have no concrete
concrete stake in the outcome of litigation,'
litigation,102
it could only be in
manner consistent with the
the
those situations in which Congress could,
could, in a manner
limitations
limitations of the case method,
method, authorize litigation of issues not otherwise
adjudicable.
adjudicable. In such cases,
cases, Congress would perform a traditional legislative function: it would identify a particular
particular type of societal harmharmalthough the definition here might be constitutionally
enlist
constitutionally inspired-and enlist
the aid of the courts in remedying the condition. Potential
Potential future plaintiffs would not be unfairly affected
affected and the autholization
authorization to sue would
would
become,
action-an approach
become, in effect, the creation
creation of a new right of action-an
approach that
that
would
whether
would reserve to
to the courts
courts their constitutional
constitutional duty to determine whether
a particular
demonstrates the requisite injury to sue under an
an
particular plaintiff
plaintiff demonstrates
0 3
existing right of action.
action.'l03
In contrast, in suits that are brought
existing
brought to litigate
courts-whether or not such actions
actions are
issues traditionally adjudicable
adjudicable by courts-whether
congressionally
authorized-considerations of institutional competence
congressionally authorized-considerations
competence
require
require that third party standing
standing doctrine be invoked in a judicial
judicial assessappropriateness of the plaintiff as a representative.
representative.
ment of the appropriateness
legitimacy of aa legislative act depends not so much
much on the rational persuasiveness of its
its
decisions as on the simple fact that a majority of "responsible"
"responsible" elected officials were
willing to vote for the proposition.
willing
Id.
The safeguards
safeguards proposed
Id. at
at 113-14.
113-14. The
proposed in this
this article are equally applicable in such situations.
102 There
sense in
which standing
to assert
third parties
parties by a litigant
102
There is
is a
a sense
in which
standing to
assert the
the rights
rights of
of third
already
is not aa
already involved in a dispute is
is ideological, because the injury the litigant will suffer is
direct result
result of
violation of
of the
the rights
rights he
he is
is asserting.
asserting. As
As indicated
earlier, however,
these
direct
of violation
indicated earlier,
however. these
situations provide
sufficient safeguards
such challenges
adjudicated. See text
situations
provide sufficient
safeguards to
to allow
allow such
challenges to
to be
be adjudicated.
text
accompanying
supra.
accompanying notes 76-84 supra.
103 See Tushnet, supra
103
supra note 82, at 672-74. Although Professor Tushnet's
Tushnet's analysis is confused by
by his
his failure
articulate the
the relationship
relationship between
fused
failure to
to articulate
between standing
standing and the existence of aa
cause
of action,
action, the
the distinction
distinction between
standing to
on an
an existing
existing cause
cause of action and
and
between standing
to sue
sue on
cause of
congressional enactment
of a new cause of action is a useful one.
congressional
enactment of
HeinOnline -- 57 B.U. L. Rev. 830 1977
1977] JUSTICIABILITY
JUSTICIARILIlY AND THE COMMON LAW
LAW METHOD
METHOD
831
IV.
CONCLUSION
IV.
Some
Some of the proposed revisions
revisions of justiciability
justiciability doctrines undoubtedly
stem from perceived
inadequacies
in
present doctrinal formulations.
perceived inadequacies
formulations.
inadequacies are endemic
Certain inadequacies
endemic to jurisdictional
jurisdictional doctrines-for example, anticipation
anticipation of the merits of the claim or failure to accept
accept as true the
allegations in the complaint. A more serious problem is that present
present
formulations often provide
provide only an ambiguous guide to probable holdings
of justiciability; they are thus open to the criticism that they aid the courts
in avoiding difficult decisions on the merits and in discouraging
discouraging unpopular plaintiffs.
Yet
questions
of
justiciability,
as
difficult
as they are, cannot
plaintiffs.
justiciability,
cannot
be avoided;
avoided; even an expanded
expanded model
model of review must provide a conceptual
conceptual
framework for dealing with such problems.
problems. To abandon
abandon the traditional
model for some pragmatically
oriented
alternative
pragmatically oriented alternative would be an inappropriate response.
response. Rather,
Rather, a broader view of the role of the judiciary in
society reveals that courts can only perform
perform their necessary
necessary tasks if they
restrict their attention
to
the
demands
of
individual
cases.
attention to
cases. Thus, the focus
of commentators
should
not
be
upon
enlarging
justiciability
commentators
justiciability limitations
generally,
but
rather
generally,
upon elucidating existing doctrines sufficiently
sufficiently to
to
allow for consistent application.
application.
HeinOnline -- 57 B.U. L. Rev. 831 1977
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57
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1977
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EDITORIAL BOARD
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H. DECROW
BARBARA H.
JEFFREY
DRUCKMAN
JEFFREY J.
J. DRUCKMAN
JONATHAN S.
S. FELD
JONATHAN
GARY
GARY K.
K. FELDBAUM
FELDBAUM
JONATHAN P.
P. FELTNER
WARREN
WARREN F. FITZGERALD
FITZGERALD
ELIZA
ELIZA W.
W. FRASER
FRASER
WILLIAM
D. FREEDMAN
FREEDMAN
WILLIAM D.
RICHARD
C. GODFREY
RICHARD C.
BARBARA N.
GREENSPAHN
N. GREENSPAHN
NEAL D.
D. HABER
HOLLY L. HEMSWORTH
HEMSWORTH
HOLLY
THOMAS
THOMAS HIGIER
WILLIAM A.
A. HUNTER
WILLIAM
KENNETH INGBER
PERRY E.
PERRY
E. ISRAEL
IAN M.
M. KIRSCHNER
KIRSCHNER
DAVID R. KITrAY
KITIAY
IVAN KRAMER
IVAN
STEVEN
B. KRAMER
STEVEN B.
KRAMER
A. LANGER
BRUCE A.
BRUCE
W. LAWRENCE
JEFFREY
JEFFREY W.
NEMSER
PAUL E.
E. NEMSER
CHRISTOPHER
CHRISTOPHER E. NOLIN
GREGORY J.
GREGORY
J. RICE
MARK E.
E. ROBINSON
ROBINSON
JOHN J. ROSENBERG
LISA
SCHWARTZ
LISA R.
R. ScHWARTZ
SAMUEL M.
M. SHAFNER
SAMUEL
SHAFNER
SUZANNE F.
F. SHEATS
SHEATS
SUZANNE
J.
SHERDEN
MOLLY HAYNES
HAYNES SHERDEN
NANCY R.
R. SILLS
SILLS
NANCY
LORETTA M.
LORETIA
M. SMITH
SMITH
Faculty Advisor
DENNIS S.
DENNIS
S. ARONOWITZ
ARONOWITZ
Secretary
A. WOLF
NATALIE A.
NATALIE
HeinOnline -- 57 B.U. L. Rev. 832 1977