[BULK] - RE: Just a thought - standing
Janet C. Alexander
jca at stanford.edu
Wed Nov 9 14:42:02 PST 2005
Duke Power stands in the way of arguing that the injury that
confers standing must be the same as that vindicated by the constitutional
provision. Indeed, framing the standing inquiry in this way would mean
that no one could get standing to argue that a constitutional provision did
not bar a proposed govt action.
The argument that a plaintiff can't allege standing based on
economic injury from government funding of a competitor confuses standing
with the merits. And we allow foxes to guard the henhouse all the time --
for example, the defendant in a class action can oppose certification on
the ground that the named plaintiff will not adequately represent the
interests of the putative class. Obviously the defendant is interested in
having certification denied, not in helping the class members to get a
better lawyer. But any resulting judgment will bind the absentees only if
representation was constitutionally adequate, so the defendant has standing
to litigate the issue.
Janet Alexander
Stanford Law School
At 12:15 PM 11/9/2005, Barksdale, Yvette wrote:
>Hi Bernard
>
>I thought this was pretty standing doctrine. Article III case and
>controversy requirements are 1) injury in fact, actual, not conjuectural,
>or speculative 2) caused by the defendant's actions, 3) judicial review
>will likely redress the injury. See Lujan, for example,
>
>All three requirements are clearly met in the context of the competitor -
>if the bridge is built it will compete with the ferry business - likely
>reducing the ferry operator's business. This injury would be caused by
>the construction of the bridge, and that construction will likely cease if
>the Court hold's that the federal funding is unconstitutional - since it
>is unlikely that private funding would be available for such a useless
>bridge. Ergo - standing.
>
>It is true that the ferry operator has a conflict of interest with the
>residents of the island, who would certainly like to be able to drive,
>rather than to use the ferry service. But I don't understand how that is
>relevant to the ferry operator's standing. The constitutional provision
>(spending clause) does not protect the interests of the local residents in
>better local transportation, but the interests of the national public in
>ensuring that federal funds are spent on national matters. Here, the
>residents are better analyzed, aren't they, as beneficiairies of the
>allegedly unconstitutional program. Clearly the people who sue don't have
>the same interests as them.
>
>
>Moreover, I don't think this "interest must be the same as that vindicated
>by the constitutional provision" is even relevant to Article III standing.
>You might be thinking of the "zone of interest " requirement for suits
>under the Administrative Procedure Act. However, that is a statutory, not
>an article III requirement and only applies to suits under the
>APA. Certainly one question might be what mechanism could be used to
>bring the case into court - maybe the APA would be it (a suit against
>whatever agency disburses the funds to enjoin the release of funds for the
>construction, for example - on the theory that the statute authorizing the
>disbursement was unconstitutional) But, that's not a limit on Article III
>standing.
>
>However, even under the APA "zone of interests" -generally the interest of
>the plaintiff is permissible if it is not in conflict with the interests
>that of the statute (here constitutional provision being litigated ).
>Here, the interest of the competitor is in harmony with, not inconsistent
>with the interests of the American public (vindicated by the general
>welfare requirement). That interest is in avoiding the use of national
>funds for purely local or private projects. Contrast for examples, cases
>in which unions who had an interest in preserving jobs, tried to sue under
>statutory provisions which vindicated the general interest in efficient
>postal service - held such interests were in conflict with the unions job
>protection interest - thus the union's interest was "outside of the zone
>of interests" protected by the statute.
>
>But I don't see how this kind of analysis would apply here. But maybe I am
>missing something.
>
>yb
>________________________________
>
>From: Bernard Bell [mailto:bbell at kinoy.rutgers.edu]
>Sent: Wed 11/9/2005 1:25 PM
>To: bobsheridan at earthlink.net; Barksdale, Yvette; SLevinson at law.utexas.edu
>Cc: conlawprof at lists.ucla.edu
>Subject: [BULK] - RE: Just a thought
>
>
>
> Economic injury to a competitor is an interesting standing theory. I
> know such theories have been accepted on ocassion, but it seems odd to
> find that a monopolist that wants to continue its monopoly has standing
> to challenge whether an expenditure of a bridge that provides an
> alternative means of transportation furthers the "general welfare." The
> ferry operator would not seem to be a particularly appropriate party to
> raise the concern about a wasteful expenditure of money, having a clear
> conflict of interest with the general public (which might gain an
> alternative route that will allow them to avoid dealing with the
> monopolist). And recognizing such standing would open up every expansion
> of government services to those that already provide them on a private basis.
> I'm not sure neighbors in the construction area would fare much better
> unless the government needs to acquire the neighbors property or an
> interest in their property, in which case they could contest the validity
> of the taking.
> Not that I am in favor of the bridge, by the way.
>
>Regards,
>
>Bernie
>
>Bernard W. Bell
>Associate Dean for Faculty
>Professor & Herbert Hannoch Scholar
>Rutgers Law School-Newark
>123 Washington Street
>Newark, NJ 07102
>(973) 353-5464 (voice)
>(973) 353-1445 (fax)
>bbell at kinoy.rutgers.edu
>
>
> >>> "Barksdale, Yvette" <7barksda at jmls.edu> 11/09/05 01:56PM >>>
>The ferry operator would certainly have standing - neighbors in the
>construction area, etc. (although the neighbors may not have an incentive
>to sue because of the economic benefits of the construction.) Perhaps
>public interest organization with members who reside in the area though.
>
>And this is such an extreme case ($446,000 per island resident - isn't it
>cheaper to buy them all their own boat) that it might be the test case to
>put at least baby teeth into the general welfare "national purpose"
>requirement under the spending clause.
>
>yb
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of Bob Sheridan
>Sent: Wed 11/9/2005 12:38 PM
>To: Sanford Levinson
>Cc: ConLawProf Listserv
>Subject: Re: Just a thought
>
>
>
>I do appreciate the kind replies; thank you.
>
>Here's a link to Salon.com which shows a photo of the mountainous isle,
>population 50, across from Ketchikan, pop. 8,000. The bridge, costing
>some $941 million, will be longer than the Golden Gate Bridge and higher
>than the Brooklyn Bridge.
>
>http://tinyurl.com/8ek8x
>
>Reminds me of the one about the fella' who finds the magic bottle, rubs
>it, a genie appears and offers him a wish. The fella' wants a bridge to
>Hawaii. Genie says that's too hard, make another wish. Fella' says he
>wants to understand what women want. Genie says, "How many lanes?"
>
>Anyway, so much for rational basis when it comes to pork; it seems our
>constitutional system has no provision for controlling spending, at
>least not by citizens, for those wondering whether the Constitution
>works and what to do about it.
>
>rs
>sfls
>
>Sanford Levinson wrote:
>
> > I do not believe that the bridge connects with an airport. Put it
> > this way: Not one of the numerous newspaper and online stories about
> > the "bridge to nowhere" suggests that this is the case. And even if
> > it did, incidentally, the current way to get to the island is a
> > seven-minute ferry ride. This is pork however one spells it.
> >
> > sandy
> >
> > ------------------------------------------------------------------------
> > *From:* conlawprof-bounces at lists.ucla.edu on behalf of Jerry O'Neil
> > *Sent:* Wed 11/9/2005 10:41 AM
> > *To:* ConLawProf Listserv
> > *Subject:* Just a thought
> >
> > While I might not support the bridge in question (or any federally
> > funded highway improvements for other than interstate highways), it is
> > my understanding that it goes to the municipality's main airport and
> > is a very necessary bridge for the citizens. It is not a "bridge to
> > nowhere".
> >
> > Jerry O'Neil
> > Montana State Senate
> >
> > Bob Sheridan wrote:
> >
> >> If legislation must be rational enough to pass rational basis
> >> scrutiny, and must be congruent and proportional to the harm that it
> >> purports to rectify, and must be supported by good evidence, not just
> >> anecdotal or worse, I wonder whether the annual pork bills, which
> >> include, for example, the bridge-to-nowhere in Alaska, can withstand
> >> review. Do taxpayers have standing to protest, for example, the
> >> bridge-to-nowhere?
> >>
> >> rs
> >> sfls
> >>
> >>------------------------------------------------------------------------
> >>
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305-8610
650.723.2892
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