In a previous post, I took an op ed piece that I authored and provided a “deconstruction” of the text that explained the thought process behind the piece’s organization and argument. In today’s post, I propose to take one class period from my Constitutional Law course and to deconstruct the class in a similar fashion. Readers of this blog may find my thought process surprising, appalling, or some combination thereof.
The class period in question deals with the constitutional doctrine of standing in the federal courts. Because federal courts only possess the power to hear cases described in Article III of the Constitution, standing doctrine has been developed by the Supreme Court to differentiate “cases” and “controversies” from disputes that are merely hypothetical, or that request an advisory opinion, or that are better left to family or political decision makers. The case in the textbook that provides an entry way into a discussion of standing doctrine is Friends of the Earth v. Laidlaw Environmental Services, Inc., 528 U.S. 167 (2000).
In that case, the plaintiff was a member of an environmental group who wanted to sue a polluter who had dumped mercury into a South Carolina river. Congress had passed the Clean Water Act, which creates a cause of action in federal court for any person “adversely affected” by a violation of the statute. The issue was whether the plaintiff in this case, who alleged that he no longer swam in the river or picnicked along its shore due to a fear of contamination, had suffered a sufficient “injury in fact” to have standing to sue.
Doctrine Versus Structure
The standard approach to teaching a case such as this is to focus on the doctrine. What is the rule for determining injury in fact? How is it applied by the majority in this case? If the plaintiff’s fear of swimming in the river is sufficient injury under this test, what about “X” (“X” being an increasingly preposterous series of attenuated and hypothetical harms)?
This approach is useful in teaching the process of deductive reasoning, and it is an approach that I take in many class periods over the course of the semester. However, in my opinion this “classic” approach works best when the rule being applied is clearly articulated by the Supreme Court and applied in a reasonably consistent (if imperfect) manner. Standing doctrine, on the other hand, has been applied under an ever shifting series of standards that has led the Supreme Court to concede that the doctrine is less than a rigorous theory although perhaps something more than a mere intuition (Allen v. Wright, 486 U.S. 737 (1984)).
In the context of this particular case, I choose to focus the class discussion less on the specific doctrine and more on the fundamental principles that drive the Supreme Court to declare a particular case outside of the judicial power. This means focusing on the text of Article III and on the overall structure of the Constitution. In particular, this requires an examination of how the Supreme Court views the judiciary under the principle of separation of powers.
In many ways, this case is a bridge to later cases where the Supreme Court vigorously enforces the boundaries between the executive branch and the legislative branch. In those later classes we will discuss reasons to criticize the Court’s formalism when it insists that that the two political branches stay within the bounds established by the text of the Constitution. This future criticism will have greater force if the Supreme Court seems to be unconcerned about keeping itself within the boundaries that the Constitution places on the judiciary – which is exactly what happens when the majority of the Court defines “injury in fact” so loosely as to grant standing to the plaintiff in the Friends of the Earth case.
I typically begin my questioning of the students by focusing on the fact, often overlooked by students during their preparation, that the role of the citizen plaintiff in environmental litigation was created by Congress. I ask the students why they think that Congress chose to create this manner of enforcement for the environmental laws. What were the policy choices that Congress made? Are those choices defensible?
This discussion catches the students off guard. It almost seems like a non sequitur, and it is not the logical place to begin a discussion of standing doctrine. Usually, the students concede that Congress had its reasons, and that there are valid arguments to be made both that the executive branch lacks the resources or the political will to police large corporate polluters and that state governments are even less likely than the EPA to enforce environmental laws effectively.
This sets up the students to re-think their initial reaction to the case. Upon first reading, it is hard to deny the dissent’s main point, made by Justice Scalia, that granting standing under the majority’s loose definition of “injury in fact” reduces the Article III standing doctrine to a mere pleading requirement. Justice Scalia is essentially arguing that the separation of powers should be taken seriously and that the Court should adhere to a more stringent standing requirement. But by forcing the students to concede early on that Congress has a prerogative to choose this type of litigation as an enforcement tool, the class is forced to ask itself whether there is also an equally valid separation of powers argument in favor of deferring to Congress’ policy choice.
By starting in an unexpected place, and leading the class to a conclusion that may be contrary to their first instincts, I am engaging in an age old rhetorical device. The students have already seen this tactic in our discussion of Marbury v. Madision, 5 U.S. (1 Cranch) 137 (1803), and they know that in the hands of a master like John Marshall this is a devastating device. Of course, when done poorly, this tactic can blow up in the face of the Court (my students from Securities Regulation will undoubtedly recall Gustafson v. Alloyd Co., 513 U.S. 561 (1995)).
My intention here is not to draw attention to what I am doing, but rather to subtly mimic the rhetorical devices typically employed by the Supreme Court itself and to model my questioning on those tactics. At this stage in the semester, we have already discussed Marshall’s use of logical syllogisms, Scalia’s hyper-textualism, and Brennan’s use of categorical groupings in order to derive general principles. By the end of the semester, my hope is that the students will have internalized these and other rhetorical devices, recognize them when I employ them in class, and even call me on it.
Another point to this approach to the teaching of standing doctrine is to start the students thinking about appellate advocacy. How would they represent the Friends of the Earth in this case? Let’s face it, the “injury” suffered by the client is pretty weak.
The moral, not made explicitly yet but to be emphasized in later classes, is that a good advocate chooses his or her field of battle. If you have a good navy but no tanks, then engage the enemy at sea. If you have lots of tanks but no navy, then fight on the land.
Any attempt by the Friends of the Earth to argue that they suffered some sort of concrete and imminent injury that falls within the outer boundaries of the classic standing doctrine is an argument from weakness. The argument that Congress has chosen to employ citizen suits as an aid to the enforcement of the Clean Water Act, and that denying standing would frustrate Congress’ policy choice, is an argument from strength. If you want to persuade five Justices that the case should go forward, you should spend as much time talking about the latter argument as you can, and as little time talking about the first point as possible.
On the other hand, how is it possible that the polluters lost when the plaintiff’s injury was so amorphous? Perhaps they focused on the easy part of their argument (lack of injury in fact) and did not adequately respond to their opponent’s strongest point (respect for the congressional scheme).
All of the above might seem like an ambitious agenda for one class period, but not if one views each individual class as an opportunity to repeatedly draw connections to a small number of overriding themes. Hopefully, the repetition will sink in.
What does it mean to “think like a lawyer?” It means coupling substantive knowledge with critical thinking skills and rhetoric. Over the course of the semester, our class will return again and again to the relationship between doctrine and structure, to the rhetorical devices used by the Justices to engender support for their preferred textual interpretation, and to the strategies for effective appellate advocacy. By designing one class period in this way, my goal is not to create experts on the nuts and bolts of standing doctrine, but rather to reinforce a template that future lawyers can use to make arguments about the Constitution.