Marc Ambinder, the politics editor of The Atlantic, writes,
Reading through the complaint filed by 13 state attorneys general, against the health reform legislation, reader @calchala was struck by something that wasn’t there: the lack of any specific case citation to buttress the underlying claim that it is unconstitutional for the federal government to impose on individuals a mandate to buy health care and to punish those who don’t by levying a fine.
The reader might as well have been struck by the lack of a video in which the states’ lawyers deliver their oral argument. Case citations buttressing the underlying claims are generally not included in complaints, at least in federal court. Just as oral argument is for oral argument, citation of precedent is for briefs supporting motions for summary judgment and the like. That’s standard federal practice; see, for instance, the Complaint in MGM v. Grokster, just to give an example of a famous recent case in which the Complaint was easily available. A complaint, Rule 8 of the Federal Rules of Civil Procedure tells us, “must contain”
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
And federal practice is that the “short and plain statement of the claim showing that the pleader is entitled to relief” is a description of the facts as the plaintiff sees them, coupled with a statement of which legal rules were allegedly violated (e.g., the First Amendment, or some statute, or some common-law doctrine) — not a legal argument providing the foundation for the plaintiff’s legal theory. Occasionally you might see a case cited in a complaint, for instance if the claim for relief is brought under a common-law doctrine, and the case provides the commonly known name for that doctrine. And a few complaints do include lots of legal argument, though those tend to look unprofessional or grandstanding. But complaints without case citations are perfectly normal. Legal argument and the citations supporting it are for briefs, not complaints.
Now none of this says that the state lawsuit will or should ultimately prevail. But the absence of case citations is irrelevant, and it seems like a mistake for the Atlantic post to suggest otherwise. (I do think that the post, with its statement of what a reader was “struck by,” implicitly endorses the view that the circumstances are striking. That wouldn’t have been so if Mr. Ambinder had followed the reader’s observation with a question about whether the reader’s statement was correct, or had simply been reporting an assertion made by some prominent person that was newsworthy simply because that person had made it. But in this context, the post appears to endorse @calchala’s observation.)
Thanks to Victor Steinbok for the pointer.
UPDATE: The Wall Street Journal Law Blog makes a similar error, though one that’s more tangential to their point: “The [White House] officials didn’t tip their hand much [in saying the lawsuits lack merit], but did give some clue as to what cases might get cited in their answer and subsequent motions.” Cases are generally not cited in answers (see, for instance, this example), though of course they would be cited in the briefs supporting subsequent motions. Thanks to commenter threesmommy for the pointer.
FURTHER UPDATE: Steve Benen at Washington Monthly echoes the point from the Ambinder post (though also provides more substantive criticisms of the lawsuit).
Octavian says:
I guess Marc Ambinder skipped school the day law was taught at law school.
March 25, 2010, 3:43 pmwhizzer_white says:
do you think DOJ will string cite their supporting SCOTUS caselaw in their SJ or 12(b)(6) motion?
March 25, 2010, 3:47 pmEugene Volokh says:
Octavian: Ambinder’s biography doesn’t mention any legal training.
March 25, 2010, 3:48 pmDavid V says:
When can we expect to see the briefs?
March 25, 2010, 3:55 pmPhilC says:
Seems a little much, shouldn’t you just e-mail Ambinder, since that’s where the mistake is made, he seems open to reader comments.
March 25, 2010, 3:56 pmPhilC says:
Re response, don’t the Feds get a really long time to respond?
March 25, 2010, 3:57 pmjosh says:
This is an embarrassing gaffe for a reporter. Plain and simple.
I have seen case and statutory citations in complaint, but they’re by far the exception. And if you’ve ever had any occasion to be a reporter, you have no excuse for not having occasion to see a legal complaint. Unfortunately, there of course will be those that use this as anecdotal evidence about some thing or other about the entire MSM, but let me say, this ignorance is an outlier.
March 25, 2010, 4:00 pmnice strategy says:
Ambinder’s analysis is faulty. The AGs engaged in some political theater, and it remains to be seen whether they can build a good case that doesn’t rely on hopes of conservative judicial activism (in both the anti-majoritarian sense and the over-interpreting/ overly-political sense). If they submit a brief without any precedent citations, well, that really would be astonishing.
March 25, 2010, 4:02 pmJohn L says:
He’s not a lawyer so go easy. Plus he may have been thrown by comparison to the VA AG’s complaint, which does have case citations (for this reason and others, the FL complaint seems much better pled).
March 25, 2010, 4:10 pmwolfefan says:
Hi John L –
IANAL but I am a resident of Virginia. Could you or others say a little more about why the FL complaint is better pled? The inclusion of case citations may be unusual; does it lower the quality of the complaint in the eyes of the court?
March 25, 2010, 4:15 pmPatrick says:
Actually the public callout is well-deserved. Ambinder endorsed his reader’s observation as though it was something remarkable, to score a political point. He thought he was being clever.
If he’d written, “Reader X was struck by something that wasn’t there … Now I must confess I’m not an attorney and obviously unfamiliar with federal court practice. And so I ask my readers, is this unusual?” he’d have gotten the correction by comment.
March 25, 2010, 4:20 pmJohnF says:
Reporters and editors who lack expertise in something, e.g., civil procedure, should check with some one who does have some expertise, e.g., a lawyer.
It’s not the mistake so much as the fact that it could have been avoided–by bringing to the effort just the slightest journalistic competence–that makes this so irritating.
March 25, 2010, 4:22 pmPorkchop says:
I agree that the complaint is sufficient under Fed. R. Civ. P. 8. That being said, the version of the complaint that was released to the news media was still an embarrassment. I wouldn’t let one of my associates file a complaint that: (a) was riddled with typos; (b) gave the Attorney General of Washington two different middle initials; and(c)retained a bracketed note in the first paragraph after naming the Attorney General of Florida to the effect that the names of the additional plaintiff attorneys general still had to be inserted. Without regard to the merits, the complaint looked like a really bush league effort.
March 25, 2010, 4:23 pmEugene Volokh says:
PhilC: I don’t have Marc Ambinder’s e-mail address, nor could I see it on his bio page. I would have left a comment to the post, except that there are already several there who make the very same point that I do here.
March 25, 2010, 4:25 pmMark N. says:
I might be misremembering, but when standing is potentially in question, I seem to recall that even complaints will include more extensive discussion along those lines, often with a citation or two. The complaint here struck me for its almost complete absence of discussion as to what theory of standing allows these AGs to bring suit on behalf of private harms they allege the legislation will cause their citizens.
March 25, 2010, 4:28 pmNunzio says:
I think the only cases I’ve seen referenced in federal court complaints are Ex Parte Young and Bivens. Even then plaintiff didn’t give the citation, probably because these are well known
March 25, 2010, 4:37 pmPhilC says:
I see, Prof., although, if in fact he was confused because the Virginia complaint has them, that’s understandable, even though he’s wrong as a matter of pleading rules. There is nothing that prevents the States from citing case law in their pleading. As you and others note, it does sometimes happen.
March 25, 2010, 4:50 pmterrivus says:
I hear the complaint wasn’t even filed in Washington, DC, even though that’s where the legislation was enacted and signed!
March 25, 2010, 4:54 pmyankev says:
As are stories about legal matters written by reporters who do not have a clue as to what they are writing about. Remember a few years ago when a Supreme Court Justice (Bureger?) died and the press made a big deal out of his having such a simple will, and implied that his estate was incompetently arranged? A few days later it came out that he had an intra vivos trust that took care of matters quite competently, making a more elaborate will unnecesssary.
March 25, 2010, 5:02 pmChris says:
josh says:
I have seen case and statutory citations in complaint, but
they’re by far the exception. .
This is wrong in part because statutory citations are very common in complaints in federal court.
First, if you are suing in federal court, most court rules require an explanation of the basis for the court’s subject matter jurisdiction. Generally, subject matter jurisdiction is based on either a federal statute or diversity of citizenship. If you are basing jurisdiction on a federal statute, you need to cite the statute. Even if you are basing jurisdiction on diversity of citizenship, you will need to cite the diversity of citizenship statute.
Second, if the claim you are alleging is a statutory claim (federal or state), you need to cite the statute.
March 25, 2010, 5:04 pmDave N. says:
I think it was a fair call-out. After all, “Uh Clem,” whom I have always assumed was an attorney, used it as a talking point on the thread beneath this one:
So when foolishness invades the VC, Eugene should point it out.
March 25, 2010, 5:06 pmCJColucci says:
Remember a few years ago when a Supreme Court Justice (Bureger?) died and the press made a big deal out of his having such a simple will, and implied that his estate was incompetently arranged?
No.
March 25, 2010, 5:36 pmjosh says:
Chris
My error. I said “case and statutory citations” when I really just meant case citations. I know statutes are alleged all the time (I’m muddling through a motion to dismiss for lack of subject matter jurisdiction as we speak!)
March 25, 2010, 6:46 pmthreesmommy says:
Now the WSJ Law Blog is requiring the White House to file an answer to the HCR lawsuits, and cite cases therein.
March 25, 2010, 6:46 pmyankev says:
I don’t do links, but google Burger “estate plan” and look at the items from April 2007Nevada Lawyer and the one titled “Burger Will Problems a Good Lesson.”
March 25, 2010, 7:06 pmChris says:
Paragraph 61 paraphrases Hylton v. US.
March 25, 2010, 10:41 pmRepealing ObamaCare’s purchasing mandates through federal courts: The lack of precedents is irrelevant | The Kansas Progress says:
[...] Now none of this says that the state lawsuit will or should ultimately prevail. But the absence of c…, and it seems like a mistake for the Atlantic post to suggest otherwise. (I do think that the post, with its statement of what a reader was “struck by,” implicitly endorses the view that the circumstances are striking. That wouldn’t have been so if Mr. Ambinder had followed the reader’s observation with a question about whether the reader’s statement was correct, or had simply been reporting an assertion made by some prominent person that was newsworthy simply because that person had made it. But in this context, the post appears to endorse @calchala’s observation.) [...]
March 26, 2010, 3:37 amlgm says:
Ambinder does not have the training to interpret legal documents. In the same way, you do not have the training to interpret the scientific literature concerning global warming.
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