-
2
-
-
84914380948
-
-
Access to court can be more or less open with respect to what disputes are actionable (the doctrine of justiciability) or with respect to who has the right to bring an action (the doctrine of Standing). This paper ignores the justiciability issue. For a brief discussion of the relationship between justiciability and standing, see Flast v. Cohen, 392 U.S. 83, 97 (1968). Other judicial doctrines such as mootness and ripeness which also control access to court are likewise ignored in this paper.
-
-
-
-
3
-
-
84914380947
-
-
United States Parole Commission v. Geraghty, 445 U.S. 388, 404 n. 11 (1980). See also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982).
-
-
-
-
4
-
-
0003774434
-
-
26 N.Y.2d 219, 220,257 N.E.2d 870, 871 (1970). For a brief economic analysis of this case, see, 3rd ed., Little Brown
-
(1986)
Economic Analysis of Law
, pp. 119
-
-
Posner1
-
5
-
-
84914380946
-
-
257 N.E.2d at 875.
-
-
-
-
7
-
-
84914380945
-
-
This is a purely positive use of the word ‘right’. We use it throughout in this way. In contrast, normative use of the word ‘right’ is illustrated in the Declaration of Independence where Thomas Jefferson wrote: ‘We hold these truths to be self-evident, that all men … are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness’. As a positive description of history this statement is false; all men have not possessed the rights to ‘life, liberty and the pursuit of happiness’. Slavery is a counter example. Jefferson was stating his belief that ‘all men should be alive, free and happy’.
-
-
-
-
8
-
-
84914380944
-
-
The court in Boomer failed to recognize this option; to avoid what was believed to be the inflexibility of injunctions, money damages were decreed. 257 N.E.2d 871–875. For an overview and analysis of injunctions, including their often-ignored flexibility, see Note
-
-
-
-
9
-
-
84898747259
-
Injunction Negotiations An Economic Moral and Legal Analysis
-
(1975)
Stanford Law Review
, vol.27
, pp. 1563
-
-
-
11
-
-
84914380943
-
-
‘Alienable:… Capable of being… transferred to the ownership of another’. Oxford English Dictionary. We define an alienable right to be one for which the owner also has the right to capture all consideration offered in its exchange.
-
-
-
-
12
-
-
84914380942
-
-
See Prosser, supra, note 6, at §90. More specifically, with few exceptions nuisance actions can be brought only by those individuals who own a property interest in land, but that interest does not have to be an estate in fee simple. For example, the owner of a twenty-year lease has standing to protect that lease while the landlord can simultaneously sue to protect his remainder interest.
-
-
-
-
14
-
-
84914380941
-
-
42 U.S.C. §7604(a) (1982 Supp.) (emphasis added).
-
-
-
-
16
-
-
84914380940
-
-
In recent years there have been movements in several other areas of the law that have resulted in inalienable rights. In medical malpractice suits courts now often decide doctor-patient disputes in the context of tort rather than as consensual agreements (that is, as contracts). When courts refuse to enforce contracts between doctors and patients, they impair the alienability of rights in one's body. For an informative discussion on this development
-
-
-
-
17
-
-
6144285299
-
-
see, American Enterprise Institute, In real property the American Law Institute in its Restatement of the Law as well as courts in a number of jurisdictions, including California and the District of Columbia, have mandated that rental properties satisfy certain ‘habitable’ standards. This mandate is imposed even if both the landlord and tenant realize the violation but agree to enter into the lease nevertheless. See Restatement (Second) of Property, Landlord and Tenant §5.6 (1977). The covenant of habitability thus impairs the alienability of rights.
-
(1979)
Medical Malpractice: The Case for Contract
-
-
Epstein1
-
18
-
-
0042202824
-
The Covenant of Habitability and the American Law Institute
-
See generally
-
(1975)
Stanford Law Review
, vol.27
, pp. 879
-
-
Meyers1
-
19
-
-
84914393393
-
The Great Green Hope: The Implied Warranty of Habitability
-
Note
-
(1976)
Stan. L. Rev.
, vol.27
, pp. 729
-
-
-
20
-
-
84914380939
-
-
In yet a third area of the law, courts sometimes refuse to enforce contracts deemed to be ‘unconscionable’. Although courts have not defined precisely the term ‘unconscionable’, it appears to encompass contracts containing terms that are ‘so extreme as to appear unconscionable according to the mores and business practices of the time and place’. Williams v. Walker-Thomas Furniture Company, 350 F.2d 445, 450 (D.C.C. 1965) (quoting 1 Corbin, Contracts § 128, 1963)). For a discussion of the legal and economic aspects of unconscionability
-
-
-
-
22
-
-
84914380938
-
-
The finer points of standing and its inconsistencies are relatively unimportant for our purposes.
-
-
-
-
24
-
-
26044440455
-
The Jurisprudence of Article III Perspectives on the “Case or Controversy” Requirement
-
See also
-
(1979)
Harvard Law Review
, vol.93
, pp. 297
-
-
Brilmayer1
-
26
-
-
84914380936
-
-
Paul Freund, Hearings on S. 2097 before the Subcomm. on Constitutional Rights of the Senate Comm. on the Judiciary, 89th Cong., 2nd Sess., pt. 2, p
-
-
-
-
28
-
-
84914380935
-
-
United States ex. rel. Chapman v. FPC, 345 U.S. 153, 156 (1953) (Frankfurter, J.).
-
-
-
-
29
-
-
84914380934
-
-
Jenkins v. McKeithen, 395 U.S. 411, 423 (1969) (quoting Flast v. Cohen, supra, note 2).
-
-
-
-
30
-
-
84914380933
-
-
Association of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 151 (1970) (Douglas, J.).
-
-
-
-
31
-
-
84914380932
-
-
Scott, supra, note 15, p. 647. Professor Scott views standing primarily as a device to ration the limited resources of the judicial system to their best uses in the absence of a formal price system for restricting access to court. This function of standing is ignored here to focus on the effects of standing on the alienability of rights.
-
-
-
-
34
-
-
84914380931
-
-
N.J. Stat. Ann. §40:55 D-4 (West Supp. 1977).
-
-
-
-
35
-
-
84914380930
-
-
See e.g., Flast v. Cohen, supra, note 2, p. 119 n. 5 (1968) (Harlan, J., dissenting).
-
-
-
-
36
-
-
84914380929
-
-
The term ‘Hohfeldian plaintiff’, coined by Professor Jaffe, has gained wide acceptance
-
-
-
-
38
-
-
0002953848
-
Some Fundamental Legal Conceptions as Applied in Judicial Reasoning
-
See also
-
(1913)
The Yale Law Journal
, vol.23
, pp. 16
-
-
Hohfeld1
-
39
-
-
0039110781
-
Standing to Secure Judicial Review Public Actions
-
For examples of contemporary statutes that provide for private attorneys general, see notes 34–40, infra.
-
(1961)
Harvard Law Review
, vol.74
, pp. 1265
-
-
Jaffe1
-
40
-
-
84914380928
-
-
Flast v. Cohen, supra, note 2, p. 119 n. 5 (Harlan, J., dissenting).
-
-
-
-
41
-
-
84914403920
-
Standing to Challenge Exclusionary Land Use Devices in Federal Courts after
-
Note
-
(1977)
Stanford Law Review
, vol.29
, Issue.15
, pp. 323
-
-
Seldin1
-
42
-
-
84914403920
-
Standing to Challenge Exclusionary Land Use Devices in Federal Courts after
-
Note
-
(1977)
Stan. L. Rev.
, vol.29
, Issue.15
, pp. 325
-
-
Seldin1
-
43
-
-
84914380927
-
-
See, e.g. Valley Forge Christian College v. Americans United/or Separation of Church and State, supra, note 3; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26 (1976).
-
-
-
-
47
-
-
84914380926
-
-
Professor Scott argues that prior to the mid-1960s standing was more liberal for statutory review than for non-statutory review (that is, instances where Congress had not specified who could sue). Scott, supra, note 15, pp. 647–669. Since then, however, standing for nonstatutory review has generally been as liberal as standing for statutory review. See ibid. pp. 667–669.
-
-
-
-
50
-
-
84914380925
-
-
Many, but not all, of the landmark Supreme Court opinions on standing concern actions of administrative agencies and other governmental entities.
-
-
-
-
51
-
-
84914406111
-
-
See, §13, 3rd ed., West Publishing Co, In these situations, other procedural and substantive doctrines, such as whether the potential plaintiff has exhausted internal agency grievance procedures, also control who can sue in federal courts. This article, however, primarily addresses private suits not suits against government officials.
-
(1976)
Handbook of the Law of Federal Courts
-
-
Wright1
-
52
-
-
84914380924
-
-
42 U.S.C. §7604(a) (1982 Supp.):‘[A]ny person may commence a civil suit…against any person…’
-
-
-
-
53
-
-
84914380923
-
-
16 U.S.C. §1540(g) (1976): ‘[A]ny person may commence a civil suit … to enjoin any person …’
-
-
-
-
54
-
-
84914380922
-
-
47 U.C.S. §402(b) (6) (1976): ‘[Suit may be commenced] [b]y any … person who is aggrieved or whose interests are adversely affected …’
-
-
-
-
55
-
-
84914380921
-
-
33 U.S.C. §1365(a) (1976): ‘[A]ny citizen may commence a civil action … against any person …’
-
-
-
-
56
-
-
84914380920
-
-
42 U.S.C. §3610(a)(d): ‘[A]ny person who claims to have been injured by a discriminating housing practice …’
-
-
-
-
57
-
-
84914380919
-
-
See, e.g., Conn. Gen. Stat. Ann. §22a-16 (West Supp. 1976); Ind. Code Ann. §13-6-1-1(a) (Burns 1973); Minn. Stat. §Ann. 116B.03(1) (West Supp. 1977). For discussions of standing on environmental issues, see sources cited in
-
-
-
-
58
-
-
84900079191
-
Citizen Environmental Litigation and the Administrative Process Empirical Findings Remaining Issues and A Direction for Future Research
-
See, e.g., Conn. Gen. Stat. Ann. §22a-16 (West Supp. 1976); Ind. Code Ann. §13-6-1-1(a) (Burns 1973); Minn. Stat. §Ann. 116B.03(1) (West Supp. 1977). For discussions of standing on environmental issues, see sources cited in
-
(1977)
Duke Law Journal
, vol.409
, pp. 409-416
-
-
DiMento1
-
59
-
-
84900079191
-
Citizen Environmental Litigation and the Administrative Process: Empirical Findings, Remaining Issues and A Direction for Future Research
-
(1977)
Duke L.J.
, vol.409
, pp. 425-428
-
-
DiMento1
-
60
-
-
84914380918
-
-
Mich. Comp. Laws. Ann. §691.1202(1) (Supp. 1976).
-
-
-
-
61
-
-
84914380917
-
-
Professor Brilmayer, for example, argues that restrictive standing is a desirable method of allocating power among courts over time and for ensuring that the plaintiff will in fact be affected by the court's judgment and will thus be a vigorous advocate. Brilmayer, supra, note 15. Few legal scholars, however, share Professor Brilmayer's preference for restrictive standing.
-
-
-
-
62
-
-
84914347057
-
Comment The “Case or Controversy” Controversy—the Sociology of Article III A Response to Professor Brilmayer
-
See, e.g.
-
(1980)
Harvard Law Review
, vol.93
, pp. 1968
-
-
Tushnet1
-
67
-
-
84914347057
-
Comment The “Case or Controversy” Controversy—the Sociology of Article III A Response to Professor Brilmayer
-
(1980)
Harvard Law Review
, vol.93
, pp. 1706
-
-
Tushnet1
-
68
-
-
84914347057
-
Comment The “Case or Controversy” Controversy—the Sociology of Article III A Response to Professor Brilmayer
-
(1980)
Harvard Law Review
, vol.93
, pp. 1705
-
-
Tushnet1
-
69
-
-
0001499760
-
Should Trees Have Standing?—Toward Legal Rights for Natural Objects
-
(1972)
S. Calif. L. Rev.
, vol.45
, pp. 450
-
-
Stone1
-
70
-
-
0001499760
-
Should Trees Have Standing?—Toward Legal Rights for Natural Objects
-
(1972)
S. Calif. L. Rev.
, vol.45
, pp. 456
-
-
Stone1
-
71
-
-
84914380916
-
-
Sierra Club v. Morton, 405 U.S. 727, 741 (dissenting).
-
-
-
-
72
-
-
84914380915
-
-
Sierra Club v. Morion, 405 U.S. 727, p. 757 (dissenting).
-
-
-
-
73
-
-
84914380914
-
-
For a general discussion of common access resources, see
-
-
-
-
76
-
-
84914380913
-
-
In some class actions the harm suffered by each plaintiff is substantially less than the costs of identifying and compensating class members. In a landmark class action suit, for example, the court estimated that the average claim, after trebling (under the antitrust laws), was only $3.90; consequently, ‘[n]o claimant in the 6 years of the progress of the action has shown any interest in… [the] claim’. Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1010 (2d Cir. 1973), aff'd. 419 U.S. 815 (1974). In such cases the argued rationale for maintaining the action is to deter future violations of the law.
-
-
-
-
81
-
-
84914380911
-
-
Fed. R. Civ. P. 23(e).
-
-
-
-
82
-
-
84914380910
-
-
392 U.S. 83, 103 (1968).
-
-
-
-
83
-
-
84914380909
-
-
Arnold Tours. Inc. v. Camp, 400 U.S. 45 (1970).
-
-
-
-
84
-
-
84914380908
-
-
Investment Company Institute v. Camp, 401 U.S. 617 (1971).
-
-
-
-
86
-
-
84914380907
-
-
For a review of recent developments in the area of collateral estoppel, including a discussion of two recent Supreme Court decisions that expanded the instances where collateral estoppel may be asserted
-
-
-
-
87
-
-
13444255271
-
Sweet Uses of Adversity Parktane Hosiery and the Collateral Class Action
-
see
-
(1980)
Stanford Law Review
, vol.32
, pp. 655
-
-
George1
|
