The murmur of the snarkmatrix…

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Expanding Standing

Thinking about standing turns out to be a great Ockham’s razor that clarifies almost any problem. If you’re not familiar with it, the legal concept of standing basically says that you can’t bring a lawsuit unless you can show you’ve been (or soon will be) materially harmed in some way. It’s a great way to get a case tossed before it’s even started, which is why it’s a go-to move for any lawyer.

For instance, let’s say Sarah Palin wanted to bring a lawsuit to stop the Cordoba House from being built near the WTC site. So long as she can’t show that she, personally, is harmed by its being built, all she can do is say how much she doesn’t like it on TV.

This, essentially, was what Barack Obama, good law professor that he is, said. It’s on private property. You might not like it, but you don’t have standing. Shut up. Later, when he “rolled back” his “support,” what he was really doing (I think) is saying, “We don’t even have to argue the wisdom of it. That’s it. It’s done.” This is the smart lawyer move. Set every other question aside and focus on the one that wins the case.

The Prop 8 case in California also shows standing at work:

Even though Judge Walker did not immediately let same-sex couples in California marry, the ruling provides important insight into the merits of the issues that the Ninth Circuit will consider on appeal. For example, in his ruling today, Judge Walker casts serious doubt on whether the proponents of Prop 8 even have “standing” to pursue an appeal because they do not speak for the state of California, and the official representatives of the state agree that Prop 8 is unconstitutional. Standing refers to whether a particular person has a legal right to bring an appeal. In his ruling today, Judge Walker said: “As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction.”

Just think about that for a moment: no one, no individual or group, can show that they’re harmed by permitting gay men and women to marry, while those couples can easily show they’re harmed by prohibiting their marriage. You often hear arguments tossed out of the form “how does two men/women marrying hurt you?” as if that question is supposed to incline you to support or permit gay marriage based on a minimalist “it’s none of my business” ethic. And sometimes that feels a little unsatisfying, because “it doesn’t hurt anybody” is a pretty thin grounds for substantive acceptance and equality.

But that’s not what it’s for. In a very real sense, it’s about establishing whether or not someone has the right to speak for or against a legal decision. And that, ultimately, is how the law is shaped.

Now, because the whole point of establishing standing is to formally limit what can be said and who can say it, it comes with all sorts of limitations as part of the package. It ties you to considering issues where you have bodily harm or monetary loss and clear legal ownership. More nebulous kinds of damage, like harm done to animals, the environment, or landmarks, give you fewer places to stand. (This is one reason why the fate of the fishermen in the Gulf is of such interest in the wake of the BP disaster. Killing all those fish doesn’t matter in a tort case except insofar as it hurts the livelihood of fishermen.)

But you can also expand standing by using it as a metaphor for who’s given legitimacy to speak about something in any context, not just a court of law. This is what law professor/author Derrick Bell does in his essay/dialogue “The Rules of Racial Standing,” in Faces at the Bottom of the Well:


The law grants litigants standing to come into court based on their having sufficient personal interest and involvement in the issue to justify judicial cognizance. Black people (while they may be able to get into court) are denied such standing legitimacy in the world generally when they discuss their negative experiences with racism or even when they attempt to give a positive evaluation of another black person or of his or her work. No matter their experience or expertise, blacks’ statements involving race are deemed “special pleading” and thus not entitled to serious consideration.

Here’s a quick summary of rules 2-5 (all paraphrases mine):

2. Black judges/jurors are assumed to be partial in cases involving race and are asked to recuse themselves.
3. Enhanced standing is given to blacks who publicly disparage or criticize other blacks.
4. Blacks are actively recruited to refute or condemn outrageous statements made by other blacks.
5. Identifying rules of racial standing helps you understand racism, but cannot help you repeal them.

Obviously, these expanded rules of standing can be applied to plenty of things besides race; #2 became an issue in Prop 8 when critics of Judge Walker argued that a gay man couldn’t be expected to judge a case involving gay marriage without bias. The Daily Show had my favorite take on this:

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Daily Show Full Episodes Political Humor Tea Party

But let’s even go outside of politics. Journalism turns out to have its own rules of standing, too. Think about media journalism: who has standing to speak? John Gruber at Daring Fireball is definitely an Apple expert and a great writer, but he’s regularly dismissed by many of those we could call (to use the Latin) playa hatas as biased because he only writes about Apple, he’s a self-proclaimed fan of their products, and he’s overwhelmingly positive about them.

This, I think, is the subtext of Jay Rosen’s terrific argument about pursuing a citizen’s agenda in political journalism. In an election — or even in a news cycle — political parties, candidates, interest groups, pundits, and yes, media outlets all have clear things they can win or lose based on how it goes. In other words, as interested parties, they all have standing. But citizens have standing, too:

One of the big advantages of deploying a citizens agenda in campaign coverage is that it substitutes for that default agenda we’re all familiar with: horse race journalism, and the inside baseball style of coverage. Instead of that, this. Use the citizens agenda to shrink the horse race narrative down to a saner size. Meaning: it’s fine to keep track of who’s ahead and point out what the candidates are doing to win. That’s part of politics. But it should not be the big lens through which journalists view the campaign because it’s simply not useful enough for voters.

In fact, the citizens’ standing matters a lot more than those other groups — but it’s overwhelmingly considered last (if at all). That’s partly because besides the ballot box and contrivances like town hall forums and YouTube debates, citizens have very few courts in which they can be heard. (The parties and candidates and pundits don’t have that problem.) We need to find a way to turn that around.

Where else can we take standing? The concept, to me, is so simple, yet so powerful — I’ve got a suspicion that it’s very nearly a universal acid.


vanderleun says…

Well if there’s an implicit standing in citizen’s journalism it seems to me there’s an implicit standing for citizen voters when it comes to deciding if a vote was legitimate. And since the one’s in charge of upholding ‘the will of the people’ are explicitly against doing so, it would seem that the citizen voter standing becomes even more essential.

I don’t think you’d have much of a shot at making ballot boxes = YouTube debates.

I saw an interesting line on some blog, I wish I could remember which, about how all law enforcement and military and judiciary was not, actually, sworn to defend the people, but sworn to defend the constitution.


More like this, please, and invite yourself, Tim, to speak up on Rachel Maddow’s show. Or Jon Stewart’s.

Otherwise, the majority may continue to believe they are entitled to “vote” anyone into the position of garbage collector.

Ain’t the constitution just so very grand?

I couldn’t quite follow the Derrick Bell quotes, but this part is always interesting to me:

More neb­u­lous kinds of dam­age, like harm done to ani­mals, the envi­ron­ment, or land­marks, give you fewer places to stand.

and sort of bothersome. The general public interest–or the interest held on behalf of those who cannot stand for themselves–is obviously easily abused, but that doesn’t mean it doesn’t exist.

I don’t think that animals, landmarks, or the environment lack standing. I think that different laws appoint different agents (oftentimes the government) to take up their causes in court, and sometimes these agents fail to do their job properly.

For instance, a landmark may be saved before the local historical rights board depending on citizens who lodge some sort of application to give the landmark protected status.

Or in the case of the environment, oftentimes, a municipality or state will go after a corporate entity that has polluted its territory. The problem is what happens when the state’s elected officials do not take advantage of their standing because of lobbying, political contributions, etc.

Standing should not be confused with the inability of non-humans to speak in court.

Tim Carmody says…

Well, this is the real trick, isn’t it? In the Prop 8 case, the state of California could have chosen to appeal the decision, and would have had clear standing to do so. And the standing of governments rests on different criteria from non-state entities; violation of its laws, loss of revenue, damage to things under its territorial jurisdiction, which is quite different from its property.

I’ll give a local example. In Philadelphia, it used to be the case that any taxpayer could bring a suit against anyone who’d violated zoning or building law. So if a developer decided to add an extra story to a building, or erect giant billboards in neighborhoods, there were clear ways for citizens to force them to comply with the law. A series of decisions pushed back standing to the point where if you can’t show that you materially suffer from a building violation — even if you’re on an adjacent property — you can’t bring a suit, even to enforce a clear violation of the law.

So, it’s not really the inability of non-humans to speak in court that bothers me. It’s the very limited ability of humans to speak on their behalf.

In many cases, the “very limited ability of humans” to speak up in Court is actually the more progressive, and beneficial option. In particular with the example of zoning, an overbroad approach to standing would lead to tons of NIMBYism, since the groups who often have the resources to sue are the groups who want to maintain a status quo that benefits them against a newer group. In SF right now, we’re dealing with predominately white and wealthy neighborhoods who are fighting the building of long-term housing for former foster kids under the guise of zoning ordinances. Berkeley, CA is another place that has taken this NIMBYism too an extreme through this broad view of standing. It’s nearly impossible to get anything built or altered there, leading to inflated property values.

Tim Carmody says…

Yes. It’s a complex issue where no general principle always “feels” right. (Example: You keep arguing with me on both sides of the same question.)

A powerful concept. Archimedes, for instance, said that he could move the earth with a lever if he only had a place to stand…

Paul E. says…

I like this blog. I learned something about legal standing.

One comment though:
I think expanding standing for the example of group affiliation like race can be taken too far. Because people can just say “You have no standing, your argument holds no/less merit because you don’t belong to this group regardless of your logic and reasoning.” If the litmus test of whether a thesis can be proven true or not is based on the -source- rather than the -logic- and -evidence- then I think it’s not in the spirit of Occam’s Razor anymore.

Tim Carmody says…

Yeah, the big negative of standing is also its big positive — it just shuts some discussions down before they can start.

Keep in mind that as Bell uses it, it’s descriptive, not prescriptive. (Obviously, Bell wishes that the rules of racial standing were different.) Determination of standing happens, whether it ought to or not, both in court, on the air/in print, and in everyday discussion.

This is a major source of frustration in debates about race. Sometimes, it’s ludicrous, like when white people complain that they don’t get to say “the n-word.” (Please follow this link.)

But I remember during Philly’s last mayoral primary, there was a debate where one candidate (a black guy, Chaka Fattah) got in trouble for saying that another candidate (also black, Michael Nutter) needed to remind everybody that he was black. Basically, Nutter was asked something about civil rights violations with his proposal to bring NYC-style stop-and-frisk to Philly, and he started his answer with, something like “Look, I’m a black man; of course, I’d be concerned. But…” and defended it. Then Fattah said something like “I’m sorry you need to remind everyone you’re black.”

Now Nutter’s a kind of nerdy, pro-business guy who represented a multiracial council district, and was the preferred candidate of most of the white professionals in the city. Fattah is also a brainy guy, US Congressman, but was based in West Philly and (at least then) was drawing most of his support from rank-and-file black Philadelphia. So it wasn’t clear whether he was calling Nutter an Oreo sellout, or (and this is how they spun it later) trying to call Nutter out for using the “I’m black, I can’t be racist” defense.

Anyways, as it happened, Fattah’s staff went on the local politics blogs and tried to shut this discussion down. Basically, their position was, this is just one black man talking to another black man, calling him out the way black folks do — for the love of god, white people, stop talking about it. The most vocal proponents of this position were Fattah’s white staffers, some of whom helped run the main blog. “White people have no right to talk about this.” I thought this was bullshit, and said so, loudly and repeatedly.

Trying to cut off standing is always a rhetorical move. It’s a lawyer’s move. It’s a power move. Sometimes it’s legitimate, sometimes it isn’t. Sometimes even when it’s technically illegitimate it gets passed-off anyways. But you can’t deny that it’s really important.

Paul E. says…

“Try­ing to cut off stand­ing is always a rhetor­i­cal move. It’s a lawyer’s move. It’s a power move. Some­times it’s legit­i­mate, some­times it isn’t. Some­times even when it’s tech­ni­cally ille­git­i­mate it gets passed-off any­ways. But you can’t deny that it’s really important.”

I like this conclusion to your discussion about expanding standing. You should include it in your original blogpost as well as the story you gave about Fattah and Nutter. 🙂

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