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Justiciability and Remedies--And Their Connections to Substantive Rights

by Richard H. Fallon
92 Va. L. Rev. 633 (2006)
Article

Conventional thinking divides lawsuits into three distinct stages. First, the court determines justiciability – involving whether the plaintiff has standing, the suit is ripe, and so forth. Second, if the suit is justiciable, the court rules on the merits. Finally, if the plaintiff prevails, the court determines the remedy. Sophisticated commentators have long derided this model as oversimplified. Some have maintained that views about substantive rights (the second stage) influence determinations of justiciability (the first). Others have contended that views about acceptable remedies (the third stage) sometimes determine how courts define substantive rights (the second). But no previous commentator has pervasively linked the third stage to the first by establishing a general, systematic connection between judicial apprehensions about unacceptable remedies, or occasionally necessary ones, and the law governing justiciability. This article shows that such a linkage exists.

The article advances two important theses. The narrower of these, the Remedial Influences on Justiciability Thesis, holds that concerns about unacceptable, appropriate, and sometimes necessary remedies exert a nearly ubiquitous, often unrecognized, and little understood influence in the shaping of justiciability doctrines such as standing, mootness, ripeness, and political question. When the Supreme Court confronts the prospect of remedies (or occasionally a non-availability of remedies) that it deems practically unacceptable, it frequently adjusts the applicable law. Sometimes the adjustment occurs within the law of remedies, sometimes in substantive constitutional doctrine. Often, however, concerns about unacceptable, appropriate, and necessary remedies manifest themselves in the design and application of justiciability rules.

Although the Remedial Influences on Justiciability Thesis is novel and important, it is only one aspect of a broader, more important positive thesis that this article also advances. The broader thesis, the Equilibration Thesis, holds that justiciability, substantive, and remedial doctrines constitute a single, overall, mutually interconnected and reciprocally influencing package. In formulating and adjusting doctrine, the Supreme Court does not view justiciability, substantive, and remedial rules as sharply isolated from one another, nor does it regard the considerations that influence its decisions as appropriately bearing on only one kind of doctrine. It does not, for example, differentiate remedial concerns that could properly bear only on the design of remedial doctrines from justiciability considerations distinctively relevant only to justiciability law. Rather, the Court decides cases by seeking an optimal overall alignment of doctrines involving justiciability, substantive rights, and available remedies. 

In addition to advancing the Remedial Influences on Justiciability and Equilibration Theses, this article offers normative reflections on the law and judicial practice that those theses describe. In particular, the article criticizes current standing doctrine and proposes a reformulation that would better promote the concerns, often involving unacceptable remedies, that standing law reflects.

Bloomberg